Renard v. Renard

• Decision Date: 24 February 1956
• Docket Number: No. 18719,18719
• Citation: 132 N.E.2d 278,126 Ind.App. 245
• Parties: Alfred H. RENARD, Appellant, v. Margaret RENARD, Appellee.
• Court: Indiana Appellate Court

Page 278

132 N.E.2d 278

126 Ind.App. 245

Alfred H. RENARD, Appellant, v. Margaret RENARD, Appellee.

No. 18719.

Appellate Court of Indiana, In Banc.

Feb. 24, 1956.

Bernard Landman, Jr., Charles B. Feibleman, Indianapolis, Paul R. Schnaitter, Madison, Bamberger & Feibleman, Indianapolis, of counsel, for appellant.

James M. Tucker, James L. Tucker, Paoli, Joseph M. Cooper, Madison, Tucker & Tucker, Paoli, Cooper, Cooper, Cooper & Cox, Madison, of counsel, for appellee.

KENDALL, Judge.

Appellee was granted a divorce from appellant November, 1951, together with custody of their child, between two and three years of age. The appellant was granted visiting privileges with the child.

In March, 1954, appellant filed petition for modification of the original decree for additional visitation rights, resulting in a finding and judgment for appellee at appellant's cost.

Errors relied upon for reversal are, that the judgment on the petition for modification was contrary to law and that the court abused its discretion in refusing to modify the decree as prayed for.

The question presented is one involving sound judicial discretion rather than a hard and fast rule of law. Crowe v. Crowe, 1946, 116 Ind.App. 534, 65 N.E.2d 645; Weber v. Redding, 1928, 200 Ind. 448, 163 N.E. 269; Johnson v. Smith, 1931, 203 Ind. 214, 176 N.E. 705; 17 Am.Jur. (Divorce and Separation) § 683, p. 517. In matters of this nature, the law is well settled that we should not disturb the judgment of the trial court unless the record discloses a clear and manifest abuse of discretion. We are guided by the same rule of law in the decision of this matter as if the petitioner was having an outright modification of custody of children.

To determine this question requires a review of the evidence most favorable to the appellee.

The appellant was the only witness in his bahalf. His testimony was to the effect that he wanted the periods of visitation extended during the summer; for the child to spend alternate Christmas vacations with him, as well as one-half of the summer vacations; that he be permitted to travel outside the State of Indiana with the child; that the appellant had lived in New York City all of his life, was not acquainted with many people in Indiana; was engaged in the dry-cleaning business in that city; that if he were permitted to take the child to New York, he could go on vacations with the child; that his mother and sister who would help him care for the child were seventy-five and forty-five years of age respectively, who likewise lived in an apartment; that he had no objection regarding the welfare of the child during the time that appellee had such custody; that in New York City he maintained a two-room apartment.

The appellee testified that the child was attending first grade in a private school in Indianapolis, and that, in her opinion, it would not be beneficial to the child's welfare to go to New York with appellant; that she was acquainted with appellant's mother and had seen her apartment. She gave testimony in reference to an invitation to appellant on Christmas morning to see the child open his Christmas gifts, but he did not appear, as well as testifying to other occasions where she described his actions and conduct which she thought would be detrimental to the welfare and happiness of the child.

Petitions for modification, such as this one, may be granted, but such modification must be upon matters arising subsequent to the original decree. As we view appellant's petition, it does not allege facts substantiating a change in conditions since the rendition of the original decree of such a character as to make it necessary to necessitate a charge in the original order; neither does the evidence reveal any change in conditions since the granting of the decree other than the increase in age of the child from three to six years of age at the time of hearing. In fact, the petition is void of any allegation forming the basis for proof that the welfare of the child required any change in the original order. The petition does not contain an allegation, neither is there evidence that there has been a change in condition surrounding the child of such a decisive character that makes a change necessary for the benefit of the child. There is a distinction between what the appellant desires for himself and that of what is actually necessary to the best interest of the child, as determined by the trial court.

This court is bound and adheres to the principle of law announced in the case of Adams v. Purtlebaugh, 1951, 230 Ind. 269, 102 N.E.2d 499, 501, wherein Judge Gilkison, speaking for the Supreme Court, said:

'The cause relied upon in this petition to justify the modification of the decree must be that since the last order there has been a change in conditions of such a decisive character as to make it necessary for the welfare and happiness of the child that the requested change in care and custody be made. If such a vital change in conditions is not averred and not shown by the evidence and found by the court, no change in care and custody can be made. Brown v. Beachler, 1946, 224 Ind. 477, 68 N.E.2d 915; Scott v. Scott, 1949, 227 Ind. 396, 86 N.E.2d 533; Reineke v. Northerner, 1949, 119 Ind.App. 539, 546, 84 N.E.2d 900; White v. White, 1938, 214 Ind. 405, 410, 15 N.E.2d 86.'

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