Pribush v. Roy, 4-783A245

• Decision Date: 30 November 1983
• Docket Number: No. 4-783A245,4-783A245
• Citation: 456 N.E.2d 747
• Parties: Bonita L. (Roy) PRIBUSH, Appellant (Respondent Below), v. James W. ROY, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 747

456 N.E.2d 747

Bonita L. (Roy) PRIBUSH, Appellant (Respondent Below), v. James W. ROY, Appellee (Petitioner Below).

No. 4-783A245.

Court of Appeals of Indiana Fourth District.

Nov. 30, 1983.

Peter G. Tamulonis, Robert J. Wampler, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellant.

James A. Buck, Buck, Berry, Landau, Breunig & Quinn, Indianapolis, for appellee.

MILLER, Judge.

Bonita Roy Pribush (Mother) seeks here the reversal of the trial court order that changed custody of her son, Jamie, from herself to James W. Roy (Father). After reviewing the record, we are compelled to agree with Mother that Father has failed in his burden of making "a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable." IND.CODE 31-1-11.5-22(d). We reverse.

FACTS

Mother and Father obtained a Kansas divorce on January 14, 1981, wherein Mother was awarded permanent custody of Jamie, the only offspring of the marriage and born on July 12, 1974. In March, 1981, Mother remarried and moved to Indianapolis where she and Jamie currently reside in a four-bedroom home with Mother's new husband, his son, and just recently, a months-old-baby brother. Mother is an assistant professor at Franklin College, and step father is an associate professor at Butler University, a situation occasionally requiring Jamie to be alone at home for a short while with only his fourteen-year-old stepbrother. Nine-year-old Jamie was a B student in third grade and involved in various sports (soccer, baseball, basketball) as well as Cub Scouts, science fair projects, and at that time, a summer computer class. The whole family attends church, travels together, and participates in folks marching (hiking clubs). Mother's neighbors' testimony confirmed Mother's evidence that Jamie lived in a normal, stable and positive family atmosphere.

Jamie's visitation with Father has been regular and rewarding although such has not always been the case. At the time of the divorce, Father, a regular Army officer, was on alert to go to Korea. Since that time, he has remarried and been stationed in Wayne, Pennsylvania, where he is an assistant professor in military science at Valley Forge Military Junior College. Upon questioning, Father volunteered the following:

"[Father]: I am assured that I will be there for two years.

Q. Uh, short of actual war or some such thing as that.

A. Even in actual war, military junior colleges will continue in the United States."

Record, p. 23. Father and new wife have custody of her son from a prior marriage, who is almost Jamie's age, and when Jamie visits, they all engage in a variety of activities as a family such as fishing, playing games, building a treehouse, and going to the local wildlife preserve.

In addition to evidence of the change in his residence and in his marital status, Father presented certain other testimony, which in his mind indicated that Jamie's custody must be changed. Father described problems he perceived with Jamie's fantasizing and withdrawing from problems. This self-serving testimony revealed Jamie was afraid of the dark, felt insecure with his current family setting, and believed he was not trusted in the custodial household. As representative of the situation, Father related an incident whereby Mother held Jamie monetarily responsible for an air mattress he had borrowed for a slumber party when the family dog deflated it during the course of the night. (Father bought After a hearing at which all the above evidence, as well as testimony favorable to Mother, was heard and after considering a "recommendation" from the Marion County Domestic Relations Counseling Bureau, the trial court modified the Kansas custody decree by granting permanent custody to Father upon a finding "that a substantial and continuing change of circumstances exists which requires modification of the decree as to the provisions pertaining to custody and support." Mother appeals the order.

                the new air mattress for him.)   In addition, Father stated Jamie had emotional outbreaks, had school problems in second grade, and had expressed a desire to live with Father.  Father's new wife corroborated Father's testimony that Jamie enjoyed his custodial visits with Father and that she enjoyed a good relationship with Jamie.  This is the essence of Father's presentation--no qualified child psychologist appeared for either party to establish the existence of any emotional problems experienced by Jamie
                

DECISION

Modifying child custody orders is governed by IC 31-1-11.5-22(d) where it states:

"The court in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable."

As our supreme court has interpreted this statute, the trial court must determine that the changed circumstances warranting modification must be of a decisive nature, thereby fitting within the legislative description of "substantial and continuing." Then, these changed circumstances will support a modification order only if such order is necessary for the welfare of the child, thereby conclusively establishing the "existing custody order [is] unreasonable." Poret v. Martin, (1982) Ind., 434 N.E.2d 885; Barnett v. Barnett, (1983) Ind.App., 447 N.E.2d 1172.

Our function in reviewing the trial court's decision is to determine whether the court abused its discretion. Thus, we neither weigh the evidence presented nor can we adjudge the credibility of the witnesses. Only if the trial court's order is against the logic and effect of the facts and circumstances brought to the court's attention or the inferences drawn therefrom and if there is no substantial probative evidence to support the modification order, do we reverse for abuse of discretion. Barnett v. Barnett, supra; Moutaw v. Moutaw, (1981) Ind.App., 420 N.E.2d 1294. In so doing we can consider only that evidence favorable to the court's decision. Smith v. Dawson, (1982) Ind., 431 N.E.2d 850. In addition, the petitioner has the burden of establishing the original or existing custody order should be modified due to the substantial continuing change in those original conditions. In ruling on such petition, the trial court must consider the petitioner's evidence with the best interest of the child upper-most in the court's mind as the paramount concern of the decision. Barnett v. Barnett, supra; Whitman v. Whitman, (1980) Ind.App., 405 N.E.2d 608. We are mindful of these principles as we conclude the trial court erred in the case here.

The evidence most favorable to its decision conclusively establishes the decisive change, if any, is in the Father's lifestyle. He is now able to offer a semi-permanent home and a family atmosphere for Jamie's upbringing, but...