Truden v. Jacquay

• Decision Date: 25 July 1985
• Docket Number: No. 3-1084,3-1084
• Citation: 480 N.E.2d 974
• Parties: In re the Marriage of Frederick TRUDEN, Respondent-Appellant, v. Rebecca Truden (JACQUAY), Petitioner-Appellee. A 292.
• Court: Indiana Appellate Court

Page 974

480 N.E.2d 974

In re the Marriage of Frederick TRUDEN, Respondent-Appellant, v. Rebecca Truden (JACQUAY), Petitioner-Appellee.

No. 3-1084 A 292.

Court of Appeals of Indiana Third District.

July 25, 1985.

Cornelius B. (Neil) Hayes, Hayes, Swift & Finlayson, Fort Wayne, for respondent-appellant.

Daniel J. Graly, John F. Lyons, Barrett, Barrett & McNagny, Fort Wayne, for petitioner-appellee.

STATON, Presiding Judge.

Frederick Truden (Truden) appeals a trial court order modifying visitation with his three minor children who are in the custody of their mother, Rebecca Truden Jacquay (Jacquay).

Consolidated and restated, the following issues are presented for review: ¹

I. Did the trial court err in excluding Truden's "motive" evidence?

II. Did the trial court err in failing to ask the minor children questions submitted by Truden for an in camera interview of the children?

III. Did the trial court err in refusing to make a record of the in camera interview or relate to the parties the children's comments?

IV. Were the trial court's Findings of Fact and Conclusions of Law contrary to or unsupported by the evidence?

V. Did the trial court err in excluding Truden's "newly discovered evidence" at the hearing on Truden's Motion to Correct Errors?

The trial 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. IC 31-1-11.5-24(b).

In reviewing a trial court's determination of custody and visitation rights, this Court will reverse only upon a showing of manifest abuse of the trial court's discretion and such abuse will not be found unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749, 755. We will not weigh conflicting evidence or judge the credibility of witnesses, for these are matters particularly within the trial court's province. Smith v. Dawson (1982), Ind.App., 431 N.E.2d 850, 851.

The evidence which supports the trial court's decision reveals that the Truden's marriage was dissolved on April 5, 1983. Custody of the three minor children, Michael, Marissa and Mitchell, ² was awarded to Jacquay. Truden was permitted visitation on alternate weekends, one evening each week, alternating holidays and one week during the summer. Truden exercised his visitation until early May, 1984. On May 6, the children returned from their weekend visitation with their father and while their mother and stepfather were putting the two younger children to bed both became very upset. Upon questioning, the oldest child, Michael, broke down crying and related to his mother that he couldn't take it anymore; that his father had been hitting and hurting him. He related several specific incidents in which he said his father hit him in the groin, hit him in the back, elbowed him in the stomach, punched him in the stomach knocking the wind out of him and kicked him in the shin during a game of tackle. Michael told his mother that such physical abuse occurred during every weekend visitation. He also said his father frequently called him derogatory names such as "wimp", "jerk", "sissy", "asshole", and "fucker." Michael told his mother the reason he had not told her before was that he was afraid his father would hit him or hurt him, or that he would "kill him."

Jacquay examined Michael that evening and found knuckle marks on his back where Michael said his father had hit him for spilling milk.

On May 15 Jacquay filed a Petition for Permanent Suspension and/or Restriction of Visitation Rights and a Petition for Emergency Ex-Parte Suspension of Visitation Rights. Later, the same day Truden filed a Verified Information for Contempt, Petition for Modification of Child Support and Request for Clarification of Visitation Order, all concerning matters contained in the original dissolution decree over which the parties were in dispute.

On May 16 the court vacated the Ex-Parte Order suspending visitation and set May 23 for hearing on the Petition for Permanent Suspension. Jacquay subsequently filed a Petition to Interview Minor Children in Chambers.

The parties presented evidence on May 23 and June 6 and the trial judge interviewed Michael and Marissa in Chambers on June 8. Both parties submitted proposed Findings of Fact and Conclusions of Law and the court issued its order on June 29. From May 16 to June 29 Truden exercised his regular visitation.

In its order the court concluded that Truden's actions, both physically and verbally, had endangered and might continue to endanger Michael's physical health and constituted a significant impairment of Michael's emotional development. The court also held that Marissa and Mitchell were similarly endangered, directly and by exposure to the abuse of Michael. The court restricted Truden's visitation to alternate Saturdays from 9:00 a.m. until 8:00 p.m. subject to the availability of a third party supervisor.

Jacquay's evidence consisted of her own and her present husband's testimony regarding Michael's revelations, including the fact that Truden spanked three year old Mitchell whenever he wet himself. Jacquay also testified that Marissa suffered nightmares for two or three days after returning from a visitation with Truden. Too, Marissa was having trouble relating to playmates and nursery school and was extremely dependent on Jacquay. She said that Mitch likewise had nightmares and crying spells after visitation and was experiencing difficulty with bedwetting and toilet training.

Dr. Jere Leib, a clinical psychologist who had treated Michael immediately after the divorce and again shortly before the modification hearing, testified that Michael had indicated places on his body where his father had hit him and that Michael

"... is experiencing considerable distress, apprehension, fear, about ongoing contacts with his father, that he is anticipating in a frightening way, that he will experience some verbal and a physical punishment toward him, and has considerable fear of spending time with his father in a lone situation...."

Trial Record at 183.

It was Dr. Leib's opinion that continued unsupervised visitation for Michael posed a potential for physical or psychological damage to him. He also opined that exposure to Michael's experiences was likely to have an "unfavorable impact," a "damaging effect" on the two younger children. He recommended that visitation be either in the presence of a third party or in a public place.

Michael Morone, a close friend of Truden's since grade school, testified that he had heard Truden on a perhaps a dozen occasions, call Michael a wimp or stupid. He testified that it was common for Truden to call Michael a jerk or stupid.

Truden denied ever punching any of his children and characterized any instances of physical contact as discipline, warranted under the particular circumstances. He said he loved his children and found them a joy to be around most of the time. He denied using derogatory names to berate his children, but said he might say something like "Don't be a wimp" or "Don't be a sissy."

A friend of Truden's, Lita Till, said she had heard him call his children names when they were "acting up or doing something they shouldn't have been doing;" but she denied ever seeing him punch any of his children. She found nothing out of the ordinary in the way Truden corrected his children.

Till's mother, Audrey Hershberger, related that she had been in the company of Truden and his children nine or ten times for an hour or so at a time and had never heard him berate the children or seen him physically discipline them.

I. Motive Evidence

During the hearing Truden sought to examine the attorney who represented him in the dissolution proceedings, Perry Shilts. The trial judge reiterated an earlier ruling that the issues would be limited to visitation and the allegations behind the Petition to Suspend Visitation. Truden claims that Shilt's testimony was relevant on the issue of Jacquay's motives behind filing the petition; he claimed that she was motivated by the parties' disputes over the property settlement agreement and weeknight visitation.

The admission or exclusion of evidence is a matter within the sound discretion of the trial court. Babson Bros. Co. v. Tipstar Corp. (1983), Ind.App., 446 N.E.2d 11, 16. A trial court's determination is required to rest upon relevant evidence and to the extent practicable irrelevant evidence should be excluded. Relevance is the logical tendency of evidence to prove a material fact, Lake County Council v. Arredondo (1977), 266 Ind. 318, 363 N.E.2d 218, 220, and we conclude in the case at bar that we agree with the trial court that "motive" evidence is irrelevant to the issues of child abuse and visitation. The court repeatedly limited the evidence to that which had a bearing on the allegations in the petition--that mistreatment of the children required a modification of visitation. We do not find that evidence of the parents' ongoing disputes has a tendency to prove or disprove those allegations. Moreover Truden cites no authority to support such a proposition. Accordingly, we find no error in the trial court's exclusion of the "motive" evidence.

II, III

In Camera Interview

The parties agreed to have the court interview the children separately, in chambers without counsel or the parties present. However, Truden requested that the conversations be on the record so that he would have an opportunity to rebut anything the children might say. He also submitted questions which he requested the judge to ask each of the children. The judge ruled that the interviews would not be recorded so that the parents could not later confront the children....