Swartzel v. Swartzel

• Decision Date: 08 May 1986
• Docket Number: No. 4-985A257,4-985A257
• Parties: Denise Rae SWARTZEL, Appellant (Respondent Below), v. Steven Paul SWARTZEL, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 71

492 N.E.2d 71

Denise Rae SWARTZEL, Appellant (Respondent Below), v. Steven Paul SWARTZEL, Appellee (Petitioner Below).

No. 4-985A257.

Court of Appeals of Indiana,

Fourth District.

May 8, 1986.

Kelly Leeman, Logansport, for appellant.

James K. Muehlhausen, R. Tod Groff, Logansport, for appellee.

YOUNG, Presiding Judge.

Denise Rae Swartzel appeals the decision of the trial court denying her petition to modify the visitation provisions of the parties' dissolution decree. Although she presents several arguments for reversal, we need address only one.

The decree of dissolution, issued on October 13, 1981, granted Mr. Swartzel custody of the parties' four minor children. Appellant was given visitation at all reasonable times, subject to the proviso that she not take the children outside the court's jurisdiction without the prior written consent of Mr. Swartzel.

In June of 1984, subsequent to an automobile accident involving the parties, the trial court issued an emergency order authorizing appellant to take the children to West Virginia for approximately three weeks. During such visitation the children were required to contact their father or grandmother at least once every three days. The court noted that since the original decree, appellant had moved from a religious commune to a trailer, she had not attempted to kidnap the children, and the Parental Kidnapping Prevention Act ¹ had been passed.

On October 22, 1984, appellant filed the petition to modify which forms the basis of this appeal. She requested visitation for eight weeks during the summer and at other reasonable times, as well as authority to remove the children from Indiana for such visitation. After a hearing on the motion, the trial court denied her request.

Since appellant failed to meet her burden of proof at trial, she is appealing a negative judgment and may prevail only by establishing that the trial court's decision is contrary to law. McCurdy v. McCurdy (1977), 173 Ind.App. 437, 363 N.E.2d 1298. In determining whether a judgment is contrary to law, we may neither weigh the evidence nor assess the credibility of witnesses. We may disturb the trial court's judgment only if the evidence leads to but one conclusion which is opposite the one reached by the trial court. Id.

IND.CODE 31-1-11.5-24 governs the visitation rights of a noncustodial parent. That section provides:

(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation by the parent might endanger the child's physical health or significantly impair his emotional development.

(b) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation might endanger the child's physical health or significantly impair his emotional development.

In addition to establishing that modification would be in the best interests of the child, a party proceeding under subsection (b) must show some change in circumstance since the original decree. State ex rel. Jemiolo v. La Porte Circuit Court (1982), Ind., 442 N.E.2d 1060. After hearing the evidence in this case, the trial court concluded that there had been "some changes in circumstances since the original Decree of Dissolution ... but that the changes shown were not so substantial and continuing as to make the existing custody order unreasonable." ²

It is beyond dispute that appellant's circumstances have changed since the original order regarding visitation. At that time she lived and ate all her meals in a religious commune in West Virginia. She now resides in a three bedroom house several miles from the commune with a new husband and infant son. The record reveals that appellant's home is clean, adequately furnished and otherwise physically suitable for visitation. It is difficult to envision a way in which appellant could have better improved her living conditions, short of moving back to Indiana, to facilitate visitation with her children. In short, the conditions which apparently led the court to restrict visitation originally no longer exist.

The question remains, however, whether it is in the best interests of the children to modify the original order regarding visitation. In State v. Starke Circuit Court (1958), 238 Ind. 204, 149 N.E.2d 541, our supreme court noted a child's need for companionship with both its parents.

Admittedly, in all such cases the welfare of the child must receive first consideration by the court, and this is true even though its parents are unreasonable, recalcitrant or even contemptuous of the court in regard to their behavior toward each other. However, the welfare of a child not only requires that it be supported; a child also needs the affection and companionship of both its parents insofar as their unnatural position makes this possible. Therefore, the visiting privileges with the father as decreed by the court are a matter of proper care and custody with which relator was charged. Furthermore, in this case both...