Smith v. Mobley, 57A03-9001-CV-27

Citation561 N.E.2d 504
Case DateOctober 29, 1990
CourtCourt of Appeals of Indiana

Howard S. Grimm, Jr., John M. Haecker, Grimm & Haecker, Fort Wayne, for appellant.

Daniel F. Diggins, S. Michele Schaefer, Emerick & Diggins, P.C., Kendallville, for appellee.

STATON, Judge.

Andrea J. Smith appeals the modification of a custody order relating to her two minor children. Her appeal presents us with two issues, which we rephrase as follows:

I. Whether the trial court abused its discretion in modifying custody from Smith to her former husband after she gave notification pursuant to IND.CODE 31-1-11.5-21.1 (Supp.1990) that she intended to move, with the minor children, from the State of Indiana.

II. Whether the trial court abused its discretion in failing to cause the modification of child support to be retroactively effective to the time at which Smith became unemployed.

We affirm in part and reverse in part.

Thomas G. Mobley (Thomas) and Andrea J. Smith (Andrea) were divorced on November 21, 1988. Pursuant to the divorce decree, Andrea was awarded custody of the two minor children. After the divorce, she became engaged to Charles M. Smith (Charles). Later she was transferred to a new job in Columbia, South Carolina. On January 3, 1989, Andrea filed a "Report by Petitioner of Moving Out of the State of Indiana," to which Thomas responded with a "Verified Petition to Modify Custody." A hearing was held, wherein Andrea stated that she would not be moving to South Carolina, but instead would be joining her fiance in Virginia Beach, Virginia. Temporary custody was awarded to Thomas until Andrea and Charles could get permanently settled in a new home.

On March 31, 1989, Andrea filed her first Motion to Reconsider, alleging that since the hearing, she and Charles had married and established a marital domicile in Virginia Beach. On May 22, 1989, Andrea filed her second Motion to Reconsider, alleging that she and Charles had now established a marital domicile in Nashville, Tennessee. After a hearing on the motions, they were denied and permanent custody was awarded to Thomas, with full visitation rights allowed to Andrea.

I. Custody

Andrea contends that the trial court erred in modifying custody of the minor children from her to Thomas. In determining whether a change of custody is warranted, the trial court's task is to determine whether there has been a change in circumstances which is so substantial and continuing as to make the existing order unreasonable. Burrington v. Howard (1988), Ind.App., 521 N.E.2d 371, 372, trans. denied. The factors which are to be considered when determining whether to modify custody when the custodial parent indicates her intent to move out of the state include the distance involved in the proposed change of residence and the hardship and expense involved for the noncustodial parent to exercise his visitation rights. I.C. 31-1-11.5-21.1. Upon consideration of these and other important factors relating to the best interests of the child, the determination of whether or not to modify custody lies within the sound discretion of the trial judge. Pea v. Pea (1986), Ind.App., 498 N.E.2d 110, 113, trans. denied.

We will reverse a trial court's decision to modify custody only upon a showing of abuse of that discretion. Thompson v. Thompson (1990), Ind.App., 550 N.E.2d 1332, 1335. An abuse of discretion is evident upon a showing that the court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. If there is any evidence, or legitimate inferences which could be drawn therefrom, which support the finding and judgment of the trial court, we will not substitute our judgment. Id.

In support of her contention that the trial judge abused its discretion, Andrea cites Pea v. Pea, supra. In Pea, the father of the child moved to Illinois. Later, the mother moved several times within Indiana and eventually married a man with which she was cohabiting. The trial court had awarded temporary custody to the father, and after a hearing a year later, awarded permanent custody to the father. The mother appealed, and the Second District reversed, holding that the mother's move within Indiana and a change in the mother's lifestyle did not constitute substantial changes warranting modification of custody.

We do not find the rationale in Pea to be controlling in this case, as we find several factors present in Pea to be lacking here. First, in Pea, both parents moved away from the original marital domicile. Id. at 111-112. Thus, any hardship was initiated by both parties. Here, only Andrea has moved, and any hardship on Thomas is solely of her making. Second, the mother and her new husband in Pea had established a permanent residence in a home that was fully paid for. Id. at 114. Here, Andrea and Charles rent their home, and have exhibited a history of frequent moves. Finally, the mother in Pea moved within the state, whereas Andrea moved outside of Indiana to two different states, and her present residence is six-and-one-half hours from Thomas' residence.

Although Andrea correctly points out that a custodial parent's move out-of-state is not per se a substantial change in circumstances, Pea, supra, at 114, our Supreme Court has stated:

We agree with the Court of Appeals in concluding that a custodial parent's move out of state is not per se a substantial change in circumstances such as to make that parent's continued custody unreasonable. However, in so concluding, it appears to have considered the removal of the boys to Arizona in isolation from the relevant circumstances of their lives. Whether or not any given change is substantial must be determined in the context of the surrounding circumstances. If, in context it is likely to beget a consequential end result, it must be deemed to be substantial.

Poret v. Martin (1982), Ind., 434 N.E.2d 885, 890.

The trial court could reasonably have found that it was in the best interests of the minor children to reside with their father, because "remaining in Indiana would promote stability in [their] schooling, community, social, church, and familial relationships." Burrington, supra, at 373. The move to Nashville could very well beget a consequential end result to any of these crucial relationships, making the change in circumstances substantial and warranting a modification of custody. The Supreme Court in Poret observed:

It is, after all, the effect upon the child that renders the change substantial or inconsequential; and a change that might be regarded as slight or inconsequential in one case might be catastrophic in another. The trial judge, therefore, must consider all circumstances, including those previously weighed, in order to determine, in context, the substance of the change giving rise to the review.

Poret, supra, at 888.

The trial judge ordered home studies of both parental homes, heard protracted testimony of both parents and other witnesses, and conducted an in camera interview with the older child. The judge's findings indicate that the father was living in the marital residence in Kendallville; that after some problems, the older child had now become well-adjusted to the school environment; that within nine months of the entry of the judgment and findings Andrea had remarried and moved two times; that the children were attending church with their father on a regular basis; and that the children's extended family, including both sets of grandparents, resided in the Kendallville area. In addition, the judge heard testimony that the drive to Nashville took about six-and-a-half hours; that Thomas had the childrens' grandparents watch them while he was at work; and that Andrea and Charles had only rented a home in Nashville, Tennessee for five months prior to entry of the judgment and findings.

The record reveals that the trial judge undertook an exhaustive review of the adequacy of both homes, the capability of both parents, and the interests of the children in order to facilitate his determination. Although that review indicated to the judge that both parents love the children and sincerely desire their custody, he nonetheless found that the best interests of the children would be served by granting permanent custody to Thomas with liberal visitation rights to Andrea. The evidence and the inferences from the evidence support the findings of the trial court: 1) that a continuing and substantial change in circumstances had taken place, and 2) that the best interests of the children required a change in custody to Thomas.

II. Support Payments

Andrea next contends that the trial court erred in failing to make the reduction in her support payments retroactive to the time at which she became unemployed. She further contends that the trial court erred in not abating the support payments for the time during which the children visited her pursuant to the court's June 20, 1989 visitation order. Thomas argues in response that retroactive modification of a support order is not permitted under Indiana law, and therefore the court did not err. 1 Thomas is correct in observing that retroactive modification of support is error. Jahn v. Jahn (1979), 179 Ind.App. 368, 385 N.E.2d 488, 490. Such retroactive modification is erroneous, however, only if it purports to relate back to a date earlier than that of the petition to modify. Kruse v. Kruse (1984), Ind.App., 464 N.E.2d 934, 939, trans. denied; In re Marriage of Wiley (1983), Ind.App., 444 N.E.2d 315, 319. Thus, a trial court may make a modification of support payments effective as of any date after the filing of the petition. Wiley, supra, at 319. This rule serves to avoid encouragement of dilatory tactics and further the purposes of the changed circumstances rule. Kruse, supra, at 939.

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