Swonder v. Swonder

• Decision Date: 21 November 1994
• Docket Number: No. 89A04-9312-CV-467,89A04-9312-CV-467
• Citation: 642 N.E.2d 1376
• Parties: In re the Marriage of Janice A. SWONDER (Allen), Appellant-Petitioner, v. James E. SWONDER, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1376

642 N.E.2d 1376

In re the Marriage of Janice A. SWONDER (Allen), Appellant-Petitioner, v. James E. SWONDER, Appellee-Respondent.

No. 89A04-9312-CV-467.

Court of Appeals of Indiana Fourth District.

Nov. 21, 1994.

Wilson S. Stober, Amy L. White, Goodin & Kraege, Indianapolis, for appellant.

Gregory A. Horn, Harlan Schussler Boston Bever Horn & Hyde, Richmond, for appellee.

OPINION

RILEY, Judge.

Petitioner-Appellant Janice A. (Allen) Swonder appeals the trial court judgment modifying a marriage dissolution decree which changes primary custody of her three sons to their father, James Swonder, in the event that she moves to Colorado.

We reverse and remand.

ISSUE

Janice raises the following issue for our review: Did the trial court err when it found that a custodial parent's plan to move out-of-state presented a substantial and continuing change of circumstance such that the existing custody order was unreasonable, and conditioned continued custody on that parent's relinquishing plans to relocate?

FACTS

Janice Swonder (Janice) and James Swonder (James) were married on August 14, 1971. The couple moved to Richmond, Indiana in 1978 to accommodate James's career plans. Twins were born to this marriage in 1980 and a younger son was born in 1984. Janice has not been employed outside the home since the couple moved to Richmond.

On October 9, 1991, the marriage was dissolved by a decree which incorporated an agreement of settlement. The agreement provided that Janice would have custody of the three children and James would have liberal visitation.

On June 21, 1993, pursuant to IND.CODE 31-1-11.5-21.1 (1993), Janice filed a notice of intent to change residence and told James of her intention to move with the children to Fort Collins, Colorado. The family had visited this location regularly since the couple was first married and it is a relatively short drive from the home of Janice's sister and her family.

In response, James filed a petition for modification of the original decree asking the court to award custody of the children to him. To ensure that Janice could not move the children before the modification hearing, James sought and obtained a temporary restraining order and a preliminary injunction. Janice agreed that she would delay her move and the parties entered into a related stipulation to that effect.

After two hearings at which the trial court heard evidence and interviewed the children in chambers, the trial court entered an order and memorandum on September 3, 1993, which stated, in part:

The Court, having considered the evidence, arguments of counsel, trial briefs and written authorities submitted, and having interviewed each of the three children of the parties, finds that the proposed move of [Janice] to Fort Collins, Colorado and the resultant effect upon each of the three children, and the effects upon the welfare of each such child would constitute changed circumstances so substantial and continuing as to make the existing custody order unreasonable, so that custody of the minor children of the parties should then be granted to [James]

IT IS THEREFORE ORDERED AND DECREED that the Dissolution of Marriage Decree previously entered is modified so that the same shall provide as follows, to-wit: the three minor children of the parties shall remain in [Janice]'s custody so long as [Janice] does not move to the State of Colorado; in the event [Janice] completes her intended move to the State of Colorado, then such minor children shall be placed in the custody of [James].

(R. 132). It is from this order that Janice appeals.

DISCUSSION

Janice contends that the record is insufficient to support the trial court's order conditioning a modification of custody on her relocating to Colorado. She urges that this conclusion is not supported by statute, by precedent, or by sound public policy. In opposition, James asserts that the record contains "ample and sufficient evidence from which the trial court could, and did, logically conclude that the decisive change of conditions affecting the three (3) boys' welfare would occur if they were removed from the State of Indiana and their lifelong home." Appellee's Brief at 15.

A modification of custody is governed by I.C. 31-1-11.5-22(d), which requires that the trial court find a substantial and continuing change in circumstances has occurred which renders the original custody order unreasonable before a modification can be ordered. ¹ A petition to modify custody is not a vehicle to relitigate the initial custody determination as to who might make the better parent. Walker v. Chatfield (1990), Ind.App., 553 N.E.2d 490, 492. "Only a strict showing that the present custody arrangement is unreasonable will suffice to justify a change in custody." Pea v. Pea (1986), Ind.App., 498 N.E.2d 110, 113, reh'g denied, trans. denied. We require this strict showing to prevent the disruptive effect of moving children back and forth between divorced parents. Drake v. Washburn (1991), Ind.App., 567 N.E.2d 1188, 1189, trans. denied, 579 N.E.2d 31.

Our review of the trial court's decision 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, 851. We neither reweigh evidence nor judge witness credibility and may only consider that evidence which supports the trial court's determination. Winderlich v. Mace (1993), Ind.App., 616 N.E.2d 1057, 1059, reh'g denied. We will reverse only upon a showing of a manifest abuse of the trial court's discretion and such abuse will only be found if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Simons v. Simons (1991), Ind.App., 566 N.E.2d 551, 554.

In a 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 decisive change of conditions in the custodial home or a change in the treatment of the children in the custodial home which necessitates removal. Id. This change must be of a decisive, substantial, and continuing nature. Walker, 553 N.E.2d at 492. The trial court judge must consider the evidence with the best interest of the children uppermost in his or her mind as the paramount concern. Pribush v. Roy (1983), Ind.App., 456 N.E.2d 747, 749. It is the effect upon the children which renders any particular change substantial or inconsequential. Ohman v. Ohman (1990), Ind.App., 557 N.E.2d 694, 696, reh'g denied, trans. denied. Thus, the changed circumstances warranting modification must be of a decisive nature, and such circumstances will support a modification order only if the modification is necessary for the welfare of the children involved, thereby conclusively establishing that the existing custody order is unreasonable. Id.

When a custodial parent intends to relocate outside the state of Indiana, he or she must file a notice of intent pursuant to I.C. 31-1-11.5-21.1. Beeson v. Christian (1991), Ind.App., 583 N.E.2d 783, 787. The statute imposes no burden of proof on the party intending to relocate, Hoos v. Hoos (1990), Ind.App., 562 N.E.2d 1292, 1294, and was not enacted to punish parents who move, but to provide a means for modifying visitation and support orders which would be made unreasonable because of a long distance move by the custodial parent. Smith v. Mobley (1990), Ind.App., 561 N.E.2d 504, trans. denied (dissenting opinion of Judge Miller, 561 N.E.2d at 509.). I.C. 31-1-11.5-21.1 must be construed in conjunction with I.C. 31-1-11.5-22(d) which requires the noncustodial parent to show a change in circumstances so substantial and continuing as to make the existing custody order unreasonable before custody may be modified. Pea, 498 N.E.2d at 114.

The fact that the move makes visitation inconvenient for the noncustodial parent does not of itself warrant a modification of the original order. Lubeznik v. Liddy (1985), Ind.App., 477 N.E.2d 947, 952, reh'g denied, trans. denied. The denial of continued custody, solely on the grounds of change in residence, is improper "where the move is being made in good faith and out of a desire to improve the material or psychological life of the custodian, so long as the child's interests are not prejudiced thereby." Sebastian v. Sebastian (1988), Ind.App., 524 N.E.2d 29, 33 (citing H. Clark, The Law of Domestic Relations in the United States Section 20.4 (2 ed. 1987)).

In 1992, Justice DeBruler wrote that whether an out-of-state move by the custodial parent is sufficient to satisfy the standard depends on the facts of a particular case. Lamb v. Wenning (1992), Ind., 600 N.E.2d 96, 98. An out-of-state move is not, by itself, a substantial change of circumstances such as to make that parent's continued custody unreasonable, In re Marriage of Poret (1982), Ind., 434 N.E.2d 885, 890; however, the circumstances inherent in such a move are not necessarily insufficient as a matter of law to warrant modifying custody. Lamb, 600 N.E.2d at 99.

To determine that an existing custody order is 'unreasonable,' a trial court is not required to find that the present custodian is unfit or that the existing order is harmful to the welfare of the child. This determination may include all relevant factors, including changes in circumstances of both the custodial and noncustodial parents and the resulting and potential advantages and disadvantages to the child. The change in conditions must be judged in the context of the whole environment.

A move far away will significantly impact the relationship between the child and the parent without physical custody and severely hamper active participation of such parent in the child's upbringing.... It is the effect upon the child, however, that renders a change substantial or inconsequential. The child's welfare, not that of the parents, should be the primary...