Spencer v. Spencer

• Court: Indiana Appellate Court
• Writing for the Court: BARTEAU
• Citation: Spencer v. Spencer, 684 N.E.2d 500 (Ind. App. 1997)
• Decision Date: 18 August 1997
• Docket Number: No. 09A05-9703-CV-117,09A05-9703-CV-117
• Parties: Kim Dawn SPENCER, Appellant-Petitioner, v. John J. SPENCER, Appellee-Respondent.

Page 500

684 N.E.2d 500

Kim Dawn SPENCER, Appellant-Petitioner, v. John J. SPENCER, Appellee-Respondent.

No. 09A05-9703-CV-117.

Court of Appeals of Indiana.

Aug. 18, 1997.

Rehearing Denied Oct. 10, 1997.

Florence Anne Briggs, Flora, for Appellant-Petitioner.

Jeffrey D. Stanton, Stanton & Enyeart, Logansport, for Appellee-Respondent.

BARTEAU, Judge.

Kim Dawn Spencer appeals a trial court order modifying a child custody agreement. She raises three issues, which we consolidate and restate as:

1. Whether a delay of 18 months between the time of a party's motion to terminate a temporary agreed order as to custody and the court's final ruling modifying custody deprived the non-custodial parent of due process?

2. Whether there was a "substantial change" in one or more of the statutory factors which must be satisfied before a custody order can be modified?

We affirm.

FACTS

Kim Dawn Spencer and John J. Spencer were married on November 7, 1987. The couple had one child, Ethan Spencer, who was born on November 12, 1989. The marriage was dissolved on August 26, 1991. The dissolution decree provided that Kim would have custody of the child, with John to have reasonable visitation.

On May 1, 1995, Kim and John agreed to modify the custody provision of the dissolution decree. The agreed order stated that since the entry of the dissolution decree, there had been a substantial change in circumstances which warranted a temporary modification of custody. The parties agreed to share legal custody of Ethan, with John to have physical custody of the child and Kim to have reasonable visitation. On December 31, 1995, Kim and John were to decide whether to continue the temporary agreement, make it permanent, or terminate it.

On July 21, 1995, Kim petitioned to terminate the agreed order, and on August 1, 1995, John petitioned to modify custody to give him permanent custody of the child. On November 17, 1995, the parties filed an agreed entry providing that Kim was to have visitation with the child every other weekend and at various specified times on every day of each week. Five days later, John filed a petition to maintain the status quo as to custody, because Kim had taken the child to Florida on a vacation trip without John's approval and during Ethan's school term.

After a change of judge on John's motion and a series of reschedulings due to requests for continuances by both parties, hearings were held on January 19 and 29, 1996, and September 10, 1996. On December 5, 1996, the trial judge awarded physical custody of the child to John, with Kim and John to have permanent joint custody and Kim to have substantial visitation. The court noted that Kim had enjoyed substantial visitation during the time John had physical custody, and that the time in John's custody seemed to have stabilized the child.

STANDARD OF REVIEW

A child custody determination falls within the sound discretion of the trial court, and its determination will not be disturbed on appeal absent a showing of abuse of discretion. In Re Guardianship of R.B., 619 N.E.2d 952, 955 (Ind.Ct.App.1993). We are reluctant to reverse a trial court's determination concerning child custody unless the determination is clearly erroneous and contrary to the logic and effect of the evidence. Id. We do not reweigh evidence nor reassess witness credibility, and we consider only the evidence which supports the trial court's decision. Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind.Ct.App.1996).

DUE PROCESS

The trial court's final order changing custody was issued about 18 months after Kim filed her original petition to terminate the order granting temporary custody to John. Kim contends the delay deprived her of procedural due process, because it effectively gave John physical custody of Ethan for a year and a half, and because the length of time the child was in John's custody was one basis for the court's award of permanent physical custody to John.

In some circumstances, a delay in the resolution of a custody dispute can have the effect of denying due process to a non-custodial parent:

A prompt hearing is especially essential in a custody case where the parties are dueling for a child's affections and the longer a delay, the more chance one party has to influence the child. When the parent who has the opportunity to exert influence has received temporary custody in an ex parte proceeding, there is even a greater reason for having a prompt hearing.... Because a delay in custody hearing may increase the chances of a custodial parent eventually being deprived of custody, it is not reasonable for a custody hearing to follow an ex parte transfer of custody by two months.

Brown v. Brown, 463 N.E.2d 310, 313 (Ind.Ct.App.1984).

In Brown, a mother obtained an emergency ex parte order transferring custody of her two minor daughters to her. Although the father was not present when the order was granted, and he twice sought to have it dissolved, no hearing was held for two months. After the hearing, custody was transferred to the mother, with whom the daughters had been staying since the emergency order, in part because the daughters had expressed a desire to remain with the mother. We found that the delay, in conjunction with two other serious procedural irregularities, ¹ had the effect of denying the father due process. Id. at 314.

We also found that delay in holding a permanent custody hearing deprived a parent of due process in Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind.Ct.App.1994). There, the father filed an ex parte emergency petition for temporary custody of his children. His request was granted, and a hearing on the custody modification was not held for fifteen months. The court then modified custody in favor of the father. During the period between the ex parte emergency petition and the hearing, the mother had only limited supervised visitation, and she was effectively removed from her children's lives for almost two years before she had an opportunity to be heard. Thus, the father had ample opportunity to influence the children while the mother was out of the picture.

In Wilcox and Brown, the noncustodial parent was denied both meaningful contact with the child and a timely day in court. That was not the case here, and the passage of time before the final custody determination did not deprive Kim of due process. Kim and John shared legal custody of the child at all times. During the entire time when John had physical custody of Ethan, Kim had substantial contact...