Shaw v. Shaw
| Decision Date | 21 December 1973 |
| Docket Number | No. 2--1072A85,2--1072A85 |
| Citation | 159 Ind.App. 33,304 N.E.2d 536 |
| Parties | Diana Lynn SHAW, Appellant (Plaintiff Below), v. Larry J. SHAW, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
John L. Fox, Indianapolis, for appellee.
Plaintiff-Appellant Diana Lynn Shaw (Diana) appeals from a divorce decree in favor of Defendant-Appellee Larry Shaw (Larry) granting him custody of their minor child, claiming error in the admission of certain evidence and in refusing to grant a new trial based upon newly discovered evidence and abuse of discretion in awarding custody.
We affirm.
The facts most favorable to Larry as Appellee are:
On September 8, 1970, Diana, a grade school teacher, filed a Complaint against Larry for divorce in which she sought custody of Danny, their two-year-old child.
On September 29, 1970, Larry counterclaimed for divorce and contested the custody issue, claiming that Diana was not a fit person to have care and custody of Danny.
An agreement was entered into by Larry and Diana on October 8, 1970, by the terms of which Diana retained custody of Danny pending outcome of the litigation and Larry was given visitation privileges with Danny away from Diana.
The trial commenced on March 8, 1972 and lasted for three days over a period of two weeks with numerous witnesses appearing for each side. Among other things, Diana charged Larry with being interested in another man, job rotation, and writing bad checks.
While the evidence was conflicting, the trial court's decree is supported by the following evidence bearing upon Larry's fitness to have custody:
1. At the time of the trial, Larry resided with his parents on the family farm in Illinois, where he was employed by his father to help in expanding a livestock trucking business.
2. If custody were awarded to Larry, Danny would accompany Larry to the farm and reside with him there along with other members of the family. In addition to the supervision provided by Larry, Danny's paternal grandparents would exercise continuous care and supervision over him.
3. Danny would have his own room on the farm. In addition, he would receive regular religious training at a church attended by the family for many years. When he reached school age, Danny would attend a nearby school and would be transported there by his grandfather, who drove a school bus 4. While Larry had various employments, he supported his family.
Evidence was also presented which related to Diana's unfitness to have custody:
1. Over Diana's objection, a typewritten statement (Exhibit 1 herein), bearing a signature which Larry identified as Diana's, was admitted into evidence. In this statement, Diana purportedly relinquished all rights as a parent to Danny and swore that she was not a capable and fit mother to raise a child. In this document she also purported to sign away all her rights of custody to Larry. The statement was executed some seventeen months before the divorce action was filed.
2. In the fall of 1969, Diana had expressed approval of the use of LSD and on two occasions was observed by Larry smoking marijuana cigarettes.
3. In November of 1969 (less than one year before the divorce action was filed). Diana made plans to travel with two male companions to Chicago, and showed affection for these two men in the presence of Larry and his family.
4. In the spring of 1970, Larry observed Diana sexually molesting Danny in the bedroom of their home.
5. In August, 1970, less than one month before the parties separated, Diana traveled to Bloomington, Indiana, and lived with three men in an apartment for two weeks while she attended classes at Indiana University.
6. Also in August of 1970, after Diana had returned from Bloomington, she was discovered by Larry in the company of a nude man in the bedroom of their home.
7. On August 10, 1971, Diana was arrested for, and admitted, driving eighty-seven miles per hour with Danny in the automobile.
8. Approximately one year after the divorce action was filed, and while Danny was temporarily visiting Larry on the farm in Illinois, Diana and a male companion with whom she was traveling were arrested and charged with criminal property damage and disturbing the peace in connection with an altercation which took place at the Illinois farm. Diana threw rocks at the house, broke windows, physically assaulted Larry and threatened to kill him.
No objection was made by Diana to any evidence prejudicial to her, except as to Exhibit 1.
On April 25, 1972, the trial court entered a decree granting Larry the divorce on his counterclaim and awarding him custody of Danny. Limited visitation rights were granted to Diana.
On June 26, 1972, Diana filed her Motion to Correct Errors and requested a new trial on the ground of newly discovered evidence.
This 'evidence' consisted of an opinion letter sent to Diana's attorney by a staff counselor for the Domestic Relations Counseling Service, Inc. and was written approximately two months after the decree was entered. In this letter, the counselor concluded that Larry was not fit to have custody of Danny, a conclusion based on conversations which the counselor had with Diana and persons who knew Larry between 1968 and 1972.
Affidavits accompanying the Motion showed that the counselor had been retained by Diana prior to entry of the decree, and that he had unsuccessfully attempted to confer with Larry before trial.
Diana's Motion to Correct Errors was overruled by the trial court. She appeals.
Disposition of this appeal poses these issues:
ISSUE ONE. Did the trial court abuse its discretion in awarding custody to Larry because some unfavorable evidence relating to Diana's unfitness as a mother concerned events occurring many months prior to trial?
ISSUE TWO. Was Exhibit 1 (Diana's typewritten acknowledgment of unfitness and relinquishment of her rights to custody) erroneously admitted into evidence because it was not relevant to the issue of her fitness as a mother?
ISSUE THREE. Did the trial court err in refusing to grant Diana a new trial based upon the existence of the opinion letter as newly discovered evidence?
As to ISSUE ONE, Diana contends that the trial court could only consider evidence bearing upon her misconduct or unfitness contemporaneous with or at the time of the trial itself, and that because no such contemporary evidence was presented the trial court abused its discretion in awarding Larry custody.
Larry contends that the trial court remained free to review and weigh all the evidence presented on the question of Diana's fitness, including evidence which described events which took place prior to trial.
As to ISSUE TWO, Diana contends that Exhibit 1, which was executed almost three years prior to the time of trial, was too remote to have any bearing upon her fitness at the time of trial, and therefore should have been excluded as irrelevant.
Larry argues that Exhibit 1 was highly relevant to the question of Diana's fitness to have custody. He contends that the remoteness factor did not affect the exhibit's admissibility, only its weight.
As to ISSUE THREE, Diana claims that the opinion letter satisfied all of the requirements of newly discovered evidence as a basis for granting a new trial.
In response, Larry contends that the opinion letter could have been made available at trial.
ISSUE ONE.
CONCLUSION--It is our opinion that the trial court did not abuse its discretion in awarding custody of Danny to Larry because there was sufficient and substantial relevant evidence bearing upon Diana's unfitness as a mother and Larry's fitness as a father to justify the court's judgment in the best interests of the child.
To prevail in this appeal Diana, as an appellant, has a long hill to climb because she must demonstrate abuse of judicial discretion by the trial court:
(Emphasis supplied.) Gilchrist v. Gilchrist (1947), 225 Ind. 367, 372, 75 N.E.2d 417, 419.
Abuse of discretion is defined in McFarlan v. Fowler Bank City Trust Co. (1938), 214 Ind. 10, 12 N.E.2d 752, 754:
'An abuse of discretion is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.' (Emphasis supplied.)
See also, DuFour v. DuFour (1971), Ind.App., 273 N.E.2d 102 at 106 (dissenting opinion).
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