Sebastian v. Sebastian

• Decision Date: 09 June 1988
• Docket Number: No. 27A02-8702-CV-00085,27A02-8702-CV-00085
• Citation: 524 N.E.2d 29
• Parties: Gary Eugene SEBASTIAN, Appellant (Respondent), v. Kim Sue SEBASTIAN, Appellee (Petitioner).
• Court: Indiana Appellate Court

Page 29

524 N.E.2d 29

Gary Eugene SEBASTIAN, Appellant (Respondent), v. Kim Sue SEBASTIAN, Appellee (Petitioner).

No. 27A02-8702-CV-00085.

Court of Appeals of Indiana,

Second District.

June 9, 1988.

Bruce A. MacTavish, Guerrero, Guerrero & Guerrero, Marion, for appellant.

Kenneth D. Kauffman, Beaman & Kauffman, Marion, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Appellant-respondent Gary Eugene Sebastian (Gary) appeals from the trial court's decision awarding custody of his daughter (Kara) to appellee-petitioner Kim Sue Sebastian (Kim), alleging the trial court abused its discretion awarding custody of Kara to Kim, in determining Gary's support obligation, and in making a contingent award of custody.

We affirm in part and reverse in part.

FACTS

Kim and Gary were married July 23, 1983, at Lowery Air Force Base in Colorado, where both of them were stationed while serving in the air force. Thereafter they both were stationed in Okinawa, Japan, where Kara was born on May 15, 1984.

When Kara was born, Kim took maternity leave, and Gary took time off to be with Kara. Gary also transferred to weekend duty so that he could spend more time with Kara, and Kim frequently came home from work over the noon hour to take care of her.

Various disputes arose during the marriage. Gary wanted Kim to spend more time with Kara, and wished that Kim would leave the air force in order to stay at home with Kara. Gary was not happy with Kim's participation in a bowling league, and did not approve of Kim's behavior at formal dinners they attended. Gary accused Kim of having affairs with co-workers, and of drinking excessively. Kim, on the other hand, objected to Gary's desire to live like "hermits." Record at 110.

Kim and Gary separated in December, 1985. In March of 1986, Kim returned to Marion, Indiana, her home town, and filed for divorce. At that time, the trial court entered a Temporary Restraining Order against Gary and gave temporary joint custody of Kara to Kim and her parents (the Sloderbecks). Kim then left Kara with the Sloderbecks, and returned to Japan to find housing for herself and Kara. While the divorce was pending, Kim reenlisted in the air force, extending her enlistment an additional six years.

In April of 1986, the trial court issued a provisional order reaffirming that Kim and the Sloderbecks had temporary joint custody of Kara, and also added that Gary should pay $300 per month for temporary child support. After a hearing in May of 1986, the trial court modified the provisional orders by vacating the support order but continuing temporary joint custody in Kim and the Sloderbecks, and allowing Gary visitation with Kara at his parents' home in Ohio for a ten-day period. Gary exercised his right of visitation and took Kara to his parents' home, where he was also living, for a visit.

In June of 1986, Kim returned to Indiana and then took Kara back to Japan with her.

Gary obtained a discharge from the air force on July 6, 1986, six months early, so At hearings on September 2 and 3 of 1986, various accusations were made that Kim had become hysterical and violent on one occasion, that Gary had physically abused Kim, and that Gary had molested Kara when she visited him in Ohio. After finding that the parties' accusations against each other were unsupportable, that the "parties are immature and have not been able to accept the fact that their marriage is irretrievably broken down," record at 33-34, and that both parties nonetheless loved their daughter and would make good parents, the trial court entered a divorce decree and awarded custody of Kara to Kim. However, the trial court attached the following condition:

that he could provide a home in the United States for Kara. He obtained a job in Ohio as an assembler/welder at a water refining company, receiving approximately $7.00 an hour for a 40-hour work week. Kim remained in the air force, earning approximately $1,100 per month plus medical benefits for herself and Kara.

"While the Court has no particular objection to the parties' child being raised for a short, temporary period of time in Japan, the Court is not pleased with the prospect that such an arrangement will continue indefinitely or, perhaps, become permanent. [Kim] indicated in her testimony that she thought her tour of duty would end in November of this year but also stated that she thought it was possible it could be extended indefinitely. Such an occurrence would effectively cut off [Gary's] relationship with the child and make it nearly impossible for him to see her, except on a very infrequent basis. Accordingly, the Court orders that [Kim's] custody of Kara be conditioned upon her return to the United States in November of this year. In the event, however, that her tour is extended beyond November of this year, the Court directs that while [Kim] shall continue to have custody of Kara, actual physical custody shall be placed with [Kim's] parents, Mr. and Mrs. Sloderbeck of Marion, Indiana, until such time as [Kim] is restationed in the United States."

Record at 34. On September 10, 1986, the trial court entered a nunc pro tunc entry, requiring Gary to pay $25 per week in child support.

ISSUES

Four issues are raised by Gary, which we restate as the following three:

1. Did the trial court abuse its discretion in awarding custody of Kara to Kim?

2. Did the trial court abuse its discretion in ordering Gary to pay $25 per week of child support for Kara?

3. Did the trial court err in awarding the Sloderbecks physical custody of Kara in the event that Kim did not return to the United States within a specified time? ¹

DECISION

ISSUE ONE--Did the trial court abuse its discretion in awarding custody of Kara to Kim?

PARTIES' CONTENTIONS--Gary argues that the trial court abused its discretion in awarding custody to Kim because he had shared equally in caring for Kara, because Kim had become violent on one occasion and because Japan had unsuitable living conditions.

Kim responds that there was sufficient evidence adduced at trial to support the trial court's decision.

CONCLUSION--The award of custody to Kim was not clearly against the logic and effect of the facts and circumstances before the trial court.

In custody disputes, the trial court is often called upon to make Solomon-like decisions in complex and sensitive matters. Guiding the trial court in custody determinations is an Indiana statute. See Ind.Code 31-1-11.5-21 (Supp.1987). The trial court must consider the factors listed in IC 31-1-11.5-21 along with other relevant factors, but is not required to make a specific finding on each of the listed factors. Hoyle v. Hoyle (1985), Ind.App., 473 N.E.2d 653. As the trial court is in a position to see the parties, observe their conduct and demeanor, and hear their testimony, its decision receives considerable deference in an appellate court. Fox v. Fox (1984), Ind.App., 466 N.E.2d 789, trans. denied; D.H. v. J.H. (1981), Ind.App., 418 N.E.2d 286. Thus, we will reverse the trial court's custody determination only if it is clearly against the logic and effect of facts and circumstances before it so that an abuse of discretion has occurred. Hoyle, supra.

Gary's argument is merely a request for us to reweigh the evidence, which we cannot do. D.H., supra. The evidence before the trial court indicated both parents sought custody of Kara, and that each has an adequate income and the ability to support her. Both Kim and Gary shared the responsibility of caring for Kara in the past. Kara enjoyed good relationships with both Kim's and Gary's parents. The testimony further showed that it was common for a single woman with children to be in the air force. Record at 81. Kim found adequate housing on the base for herself and Kara. Kara would spend half a day with a babysitter and half a day at a Christian day care center while Kim worked. Record at 82.

At the hearing, Gary and Kim attempted to discredit the other in the eyes of the trial court by making various allegations of misconduct, but the trial court found no evidence to support the allegations and labeled them as "spurious." Record at 33. Although determining that both of the parties were good parents, the trial court made a difficult decision, and based on its observations, determined that the best interests of Kara would be for Kim to retain custody. There was evidence at trial to support the trial court's decision; we see no abuse of discretion. See Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071; In Re Marriage of Myers (1979), 180 Ind.App. 284, 387 N.E.2d 1360.

ISSUE TWO--Did the trial court abuse its discretion in ordering Gary to pay $25 per week of child support for Kara?

PARTIES' CONTENTIONS--Gary challenges that there was no evidence produced at trial on the issue of support on which the trial court could support its nunc pro tunc order.

Kim replies that the testimony regarding Kim's and Gary's employment and earnings was sufficient to support the order.

CONCLUSION--The trial court did not err in entering a support order, requiring Gary to pay $25 per week in child support.

Again, we will not reverse the trial court's decision absent a showing of an abuse of discretion. Olson v. Olson (1983), Ind.App., 445 N.E.2d 1386. Custody, support and visitation are always issues before the trial court in a dissolution proceeding when a child of the parties exists. Dorsey v. Dorsey (1980), Ind.App., 409 N.E.2d 1233.

IC 31-1-11.5-12 sets forth factors which the trial court should consider in awarding child support. The trial court is not required to elaborate on how it balances the factors considered. In Re Marriage of Rupp (1983), Ind.App., 449 N.E.2d 1164. In this case, there was sufficient evidence before the trial court to shed light on the relevant factors, and to support its award. The trial court was informed of the livelihoods of both Gary and Kim, and knew that Kim earned $1,100 per month, and Gary earned approximately $280...