Simons v. Simons

• Decision Date: 11 February 1991
• Docket Number: No. 27A02-8911-CV-586,27A02-8911-CV-586
• Parties: Deborah S. SIMONS, Appellant (Petitioner Below), v. Joseph W. SIMONS, Appellee (Respondent Below). 1
• Court: Indiana Appellate Court

Page 551

566 N.E.2d 551

Deborah S. SIMONS, Appellant (Petitioner Below), v. Joseph W. SIMONS, Appellee (Respondent Below).

No. 27A02-8911-CV-586. ¹

Court of Appeals of Indiana,

First District.

Feb. 11, 1991.

Gregory L. Laker, Davis Davis & Langan, Indianapolis, for appellant.

Anne C. Selby, Marion, for appellee.

ROBERTSON, Judge.

Deborah S. Simons appeals the modification of the child custody order in the decree that dissolved her marriage to Joseph W. Simons. The trial court modified the custody order by awarding Joseph custody of the parties' daughter, Angela. We reverse.

FACTS

Deborah and Joseph were married on November 2, 1974. One child was born to this marriage, Angela Michelle Simons (born May 28, 1976). Deborah and Joseph were divorced on June 1, 1979. Deborah was awarded custody of Angela subject to Joseph's reasonable visitation and Joseph was ordered to pay child support.

Joseph filed the present petition to modify the custody order on July 10, 1989. In his petition, he alleged a material change of circumstances so substantial and continuing as to make the existing custody order unreasonable as follows:

a. [Joseph] has had, for nine and one-half years, a stable marriage and home.

b. [Deborah] has moved approximately four times, causing the minor child to have to relocate and to change school systems.

c. [Deborah] has, several times in the past few years, expressed to [Joseph] that she could not handle the responsibilities of parenting the child.

On July 17, 1989, Deborah filed a motion for contempt and for modification of the child support order. She alleged that Joseph had failed to maintain medical insurance on Angela's behalf as required by the decree. She also requested that the support obligation be increased to conform with the Indiana Child Support Guidelines.

A hearing on all matters was held October 4, 1989. At the time of the hearing, Angela was thirteen (13) years old. On October 6, 1989, the trial court rendered its judgment, the pertinent part of which reads as follows:

Having previously taken this cause under advisement, the Court now makes the following orders:

(1) Custody herein is now modified and granted to [Joseph]. The parties shall transfer custody of the child on October 21, 1989.

(2) Support shall be made payable herein from [Deborah] to [Joseph] through the Clerk of the Court in the sum of $42.00 per week. [Deborah] is granted credit against that support obligation in the following amounts: (a) for insurance reimbursement from the time [Joseph] was able to be employed in June of 1982 to the present at $30.00 per month the sum of $2,510.00; (b) for the remaining support arrearage the sum of $4,679.00. [Deborah] is therefore granted credit in support for 174 weeks, at The evidence in the light most favorable to the trial court's judgment indicates that Joseph remarried soon after the divorce, has had no other children, and has lived in the same house in Marion, Indiana since his remarriage. Angela has a good relationship with her stepmother and has had the same bedroom in her father's house since his remarriage. Joseph was unemployed from the time of the divorce until 1981. Since the middle of 1982, Joseph has been gainfully employed, working for and with James Bowers doing construction work. Joseph is now vice-president of J.G. Bowers, Inc. and earns gross income of approximately $480.00 per week. Joseph has almost continuously been behind in his child support payments.

which time she shall begin paying the support obligation unless modified by the Court. [Joseph's] support hereby terminated.

The evidence also shows that soon before the divorce in 1979, Deborah and Angela moved in with Deborah's parents for approximately one and one-half (1 1/2) years. Then Deborah and Angela moved in with some friends, Jeff and Jackie Endsley in Monrovia, Indiana for four months. Next, Deborah and Angela lived alone for one year in Mooresville, Indiana where Angela attended kindergarten. After that, Deborah and Angela moved to an apartment in Indianapolis [the Lawndale apartment] where they lived for six years. During this time, Angela attended grade school at the Westlake Elementary School. While Deborah and Angela were living in the Lawndale apartment, a romantic interest of Deborah's, a man named John, lived with them for approximately two years. After breaking up with John, another romantic interest of Deborah's, a man named Dino, moved into the Lawndale apartment. Deborah, Dino, and Angela lived at the Lawndale apartment for approximately two years and then moved into a house on Dennison Street in Indianapolis owned by Dino's aunt and uncle. At this time, Angela began attending junior high school at South Wayne Junior High School. At the time of trial, Deborah's relationship with Dino had ended and he had moved out. However, Deborah and Angela had continued to live in the house on Dennison Street.

To summarize Angela's educational and moving experience, the evidence indicated that Angela attended kindergarten in Mooresville. Afterwards, upon moving to the Lawndale apartment in Indianapolis, she attended grade school at the Westlake Elementary School. Then, upon moving to the house on Dennison Street, she attended South Wayne Junior High School. Westlake Elementary School and South Wayne Junior High School happen to be in the same school system. Therefore, since the time Angela started first grade, she has only moved once--from the Lawndale apartment to the house on Dennison. Moreover, there was no evidence to suggest that this move required Angela to change schools. The evidence would appear to indicate that the move coincided with Angela's promotion to junior high school. In sum, Deborah and Angela have moved one time in approximately the last eight years and no move has ever disrupted Angela's schooling.

Joseph presented evidence that Angela had exhibited some "peculiar" religious beliefs and behaviors. For example, she would talk about demons and would exorcise them from Joseph's car before getting in. However, Joseph admitted that Angela had not entertained these notions for many years and these beliefs and behaviors were only manifested during her mother's and her short stay with the Endsleys in the early 1980s.

The evidence also indicated that Angela had been quite upset when her mother broke up with the two above-mentioned romantic interests. Further, Angela's grandmother, Joseph's mother, testified that on one occasion many years ago she did not believe that Deborah's attention to an ear infection experienced by Angela was appropriate. The earache episode took place when Deborah and Angela lived in Mooresville--before Angela had started the first grade.

Evidence also indicated that Deborah had made disparaging remarks about Joseph in front of Angela regarding his support delinquencies. Also, Joseph testified that he and Deborah had argued about visitation in the past. However, Joseph admitted that the parties had been able to agree to an extended visitation schedule in the last two years which seemed to work better. Joseph testified that Angela had told him that she wanted to live with him. He also testified By all accounts, Angela is a well-adjusted teenager who is performing well at school and who does not have any particular problems (aside from being the subject of this lawsuit). She has been on the honor role and has won other academic commendations throughout her school experience.

that Deborah had asked him to take custody of Angela in the past. However, the evidence is uncontradicted that the most recent of the two times that Deborah requested such a change was approximately two years before the present petition for modification was filed.

The trial court interviewed Angela in camera. However, no record of the in camera examination was made. After the in camera interview, the trial judge made the following comments:

I've now had a chance to talk to Angela. I guess the first thing I would say is that she's a very sweet girl. Seems to be. Pretty mature. Pretty ... seems well able to take care of herself and at least understand the dynamics between herself and everybody else and between the two of you. So you both have something to be proud of. It's one of the best parts of this job is when I get to talk to kids. Especially kids that are as nice as this one. So congratulations on that.

DECISION

In an initial custody determination, the trial court presumes that both parents are equally entitled to custody. Walker v. Chatfield (1990), Ind.App., 553 N.E.2d 490. The initial custody determination is based on the trial court's determination of which parent would be better. Id. However, a subsequent petition to modify custody is not a vehicle to relitigate the initial custody determination as to who might make the better parent. Id. In a subsequent petition to modify custody, the noncustodial parent bears the burden of overcoming the custodial parent's right to continued custody and must make a showing of a change in the custodial home which is of a decisive, substantial, and continuing nature. Id.

IND. CODE 31-1-11.5-22(d) governs custody modification. It reads:

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. In making its determination, the court shall not hear evidence on matters occurring prior to the last custody proceeding between the parties unless such matters relate to a change of circumstances.

Our review of a trial court's decision regarding a child custody modification is limited to determining whether the trial court abused its discretion in applying the applicable statutory guidelines. Smith v. Dawson (1982), Ind.App., 431 N.E.2d 850. On appeal from a modification of a child custody order, we will not judge the credibility of the witnesses or substitute our judgment for that of ...