Thompson v. Thompson

• Decision Date: 07 March 1990
• Docket Number: No. 48A02-8712-CV-507,48A02-8712-CV-507
• Citation: 550 N.E.2d 1332
• Parties: Paul E. THOMPSON, Appellant (Respondent), v. Joyce M. THOMPSON, Appellee (Petitioner).
• Court: Indiana Appellate Court

Page 1332

550 N.E.2d 1332

Paul E. THOMPSON, Appellant (Respondent), v. Joyce M. THOMPSON, Appellee (Petitioner).

No. 48A02-8712-CV-507.

Court of Appeals of Indiana Second District.

March 7, 1990.

Donald E. Snow, Donald E. Snow & Associates, Greenfield, for appellant.

Joan Bashaw Gregg, Gregg & Bybee, Anderson, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Respondent-appellant Paul Thompson (Paul) appeals from the modification of a custody order, which granted custody of the children to Joyce Thompson (Joyce), and granting Joyce possession of the marital residence.

We affirm.

FACTS

The facts most favorable to the judgment reveal that on June 12, 1985, the parties' marriage was dissolved. The dissolution decree provided, in pertinent part:

"The Court finds that there was one child born of the parties, namely: Paul Daniel Thompson, born February 27, 1973, and Respondent [Paul] is hereby awarded the care and custody of said minor child, reserving to the Petitioner [Joyce] reasonable rights of visitation. The Court further finds that legal custody of Michael Ray King, son of the Petitioner, who has been raised by the Respondent since the age of five (5) months, shall be shared jointly by Respondent and Petitioner and Michael Ray King shall be allowed to live with the Respondent, if he so chooses. If, at any time, the children wish to live with the Petitioner, the Respondent shall sign over full custody of children without a court hearing. The Court further finds that the Petitioner can see the minor child of the parties for visits and activities anytime he wishes as long as it doesn't interfere with schooling.

The Court further finds that the control of the property at 2024 Costello Drive, Anderson, Indiana, shall be awarded to the Respondent, but upon the death of either party the property shall go to the survivor. The Court further finds that the property will remain in both parties names as joint tenants, and if ever sold profits shall be equally split.

The Court further finds that all medical expenses of the dependent children and other debts shall be paid by the Respondent, until such time as the Petitioner secures suitable employment, at which time the non-insured medical expenses and other debts shall be equally divided between Petitioner and Respondent."

Record at 31-32 (emphasis supplied).

Several weeks after the dissolution decree was entered, Joyce returned to the residence and lived with Paul and the children. Paul paid the mortgage payments for the residence. After Joyce had returned to the residence, Joyce and Paul acquired a second mortgage on the residence to repair termite damage. Both Joyce and Paul were liable under the mortgage, but Paul made all of the payments.

After the marriage was dissolved, Joyce had several back surgeries, and was unable to seek gainful employment. She received social security benefits, and had attended vocational rehabilitation sessions in order to become employable. Paul continued to be employed by General Motors' Delco Remy plant, where he had worked for twenty years.

Paul developed a drinking problem, and on several occasions was abusive to Joyce. He occasionally offered the children alcohol, and permitted them to consume it. Joyce testified the boys had developed a "party til you puke" attitude, and she was concerned about their philosophy of life. In May of 1987, at Joyce's demand, Paul left the residence.

Joyce filed a petition to modify the dissolution decree on May 14, 1987. She sought custody of the children, and control and use of the marital residence. Evidentiary hearings were held on July 21 and September 30, 1987, and an in camera interview with the children was conducted by the court at the September 30th hearing.

On October 1, 1987, the trial court granted Joyce's petition for modification, and provided:

"This matter having come before the Court for hearing to modify the final decree of dissolution. The Court finds that there has been a material change in said circumstances, the decree of dissolution heretofore entered is modified as follows: Custody of the two minor children is awarded to the wife reserving to the husband reasonable rights of visitation which shall be no less than two weekends per month and one day each week. If convienent [sic] to the parties and to the children, bearing in mind their school responsibilities. Husband to pay $100.00 per week support commencing Friday October 2, 1987 and each week thereafter. All payments to be made to the office of the Clerk of this Court. Wife is to pay the first mortgage thereon (Emphasis supplied.) Record at 49-50. ¹

                including the taxes and insurance.  Husband is to pay the second mortgage thereon until fully amortized and paid.  Wife is awarded the use of the family residence and after July 15 of the year in which the youngest child graduates from high school the real estate is ordered sold.   The proceeds of the sale, after the sale and administrative expenses are paid, are ordered divided equally by the parties.  In the event that the wife becomes employed wife is ordered to notify the court and counsel of that event and the court may reconsider the amount of support.  First mortgage at First Savings and Loan to be paid by the wife.  Seceond [sic] mortgage at Associates is to be paid by the husband until fully amortized.  Parties ordered and directed to execute such documents as necessary for husbnad [sic] to have tax exemptions of both children for the year 1987.  Starting in the year 1988 the parties to execute such documents as necessary for husband to have younger shild [sic] as tax exemption and wife shall have older child as tax exemption.  Husband directed to pay Attorney McCarty $75.00 and Attorney Gregg $225.00 within 90 days."
                

ISSUES

Paul presents several issues for our consideration, which we consolidate and restate as:

1. Whether the trial court abused its discretion when it determined there had been a substantial change in circumstances?

2. Whether the trial court erred when it awarded use and control of the marital residence to Joyce?

3. Whether the trial court erred when it ordered Paul to pay the second mortgage?

DECISION

ISSUE ONE--Did the trial court abuse its discretion when it determined that there had been a substantial change in circumstances?

PARTIES' CONTENTIONS--Paul argues that the trial court erred in not setting forth specific facts in support of its conclusion that there had been a substantial change in circumstances, that the evidence does not support the trial court's conclusions, and therefore the trial court improperly based its decision on the in camera interview with the children. Joyce responds that, absent a specific request, findings of fact are not mandatory, that the evidence sufficiently supports the judge's conclusions, and therefore the trial court did not improperly base its decision solely upon the interview with the children.

CONCLUSION--The trial court did not abuse its discretion.

Paul's first contention, that the trial court was required to make specific findings in support of its conclusions, is without merit. It has been determined that in a modification of custody decision, absent a request pursuant to Ind. Rules of Procedure, Trial Rule 52(A), there is no requirement for the trial court to make specific findings of facts in support of its conclusions of law. Clark v. Clark (1980), Ind.App., 404 N.E.2d 23; Campbell v. Campbell (1979), 182 Ind.App. 661, 396 N.E.2d 142.

When reviewing a custody modification decree, we will only reverse if the trial court has abused its discretion. The trial court has abused its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court. If there is any evidence, or legitimate inferences therefrom, to support the finding and judgment of the trial court, we will not substitute our judgment for that of the trial court. Poret v. Martin (1982), Ind., 434 N.E.2d 885.

The crucial consideration for the trial court, when deciding custody questions, is the best interest of the child. Wright v. Wright (1984), Ind.App., 471 N.E.2d 1240, trans. denied. A change in custody is proper "only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable." Ind.Code 31-1-11.5-22 (1988).

An examination of the record reveals sufficient evidence to support the trial court's conclusion that a substantial change in circumstances existed, and that a change in custody was in the best interest of the parties' child. ²

Joyce testified that Paul had become a heavy drinker, consuming nine to twelve beers per day during the week, and a case per day on weekends. Record at 80. She also testified that he had, on at least one occasion, experienced an alcohol related blackout. Record at 81-82. Joyce also testified that the police had been summoned on several occasions due to Paul's abusive behavior while under the influence of alcohol. Record at 82, 92. She further testified that Paul had given both minor children alcohol on several occasions, and had instilled in the children a belief that "the ideal life would be to work seven to three, come home and drink and party till [sic] you puke or pass out and get up and go to work the next morning." Record at 82-83. She also testified that Paul had insisted on visiting the children while he was intoxicated. Record at 90-92.

We do not conclude it was illogical or unreasonable for the trial court to determine that a substantial change of circumstances had occurred, and that the best interests of the parties' child would be served by awarding custody to Joyce. Paul, like other appellants before him, would have us reweigh the evidence.

Paul focuses on the trial court's in camera interview with the children as being an improper basis for awarding custody of the parties' child to Joyce. While we agree it would be improper for the trial court to base its decision...