Walker v. Chatfield

• Decision Date: 24 April 1990
• Docket Number: No. 49A04-8812-CV-00416,49A04-8812-CV-00416
• Citation: 553 N.E.2d 490
• Parties: Gloria Denise WALKER, Appellant, v. Terry Dannett CHATFIELD, Appellee.
• Court: Indiana Appellate Court

Page 490

553 N.E.2d 490

Gloria Denise WALKER, Appellant, v. Terry Dannett CHATFIELD, Appellee.

No. 49A04-8812-CV-00416.

Court of Appeals of Indiana,

Fourth District.

April 24, 1990.

Lorine Brown Regulus and Kevin L. Scionti, Roberts & Bishop, Indianapolis, for appellant.

Daniel F. Cummings, Cummings & Merriman, Indianapolis, for appellee.

MILLER, Judge.

Gloria Walker, after a hearing before the trial court, lost custody of her eight-year-old daughter to the child's father, Terry The issue Walker raises in her appeal is whether the judgment granting permanent custody to Chatfield was contrary to law where there was no evidence of abandonment, and no showing of a substantial and continuing changed circumstances in her home. She also claims the judgment was contrary to law because the child was, in effect, placed with the paternal grandparents. ¹

Chatfield. The initial custody determination had been decided in 1981 under the paternity statute, IND.CODE Sec. 31-6-6.1-11. On January 11, 1988 Chatfield filed a petition for temporary custody, restraining order and a vacation of wage assignment alleging the child had been "abandoned" by Walker. The trial court granted the petition. After a hearing on January 22, 1988, the trial court left the temporary custody of the child with Chatfield, although the child was actually staying with Chatfield's mother. The change separated the child not only from her mother, but also her two half-brothers (then ages 7 and 4) and her half-sister (then age 11). On September 13, 1988 the trial court awarded custody to Chatfield.

We agree with Walker that there was a lack of evidence of a decisive and substantial change in circumstances affecting the welfare of the child, and reverse.

DECISION

This custody action was initiated by Chatfield (Father) on the basis that the child was abandoned. ² There was no substantial evidence supporting Father's claim; however, the unsupported claim enabled Father to gain temporary custody and later permanent custody. We are sensitive to the difficulties trial courts encounter in making custody determinations, and to the fact that we only reverse when there is abuse of the judge's discretion. Therefore, we have carefully reviewed the record. We believe that the judge made his determination of custody as he would have at an initial custody determination and did not properly take into consideration the standards required for modification of custody. In this regard we observe that, in an initial custody determination, the court presumes the parties are equally entitled to custody, but makes a decision based on which parent would be better. In subsequent hearings to modify custody, the petitioning party bears the burden of overcoming the custodial parent's right to continued custody because of our jurisdiction's policy that a permanent home is considered best for the welfare of the child. Thus, our courts have held that, in modification proceedings, the change in the custodial home must be one of a decisive, substantial and continuing nature. In re Marriage of Henderson (1983), Ind.App., 453 N.E.2d 310. We recognize that there will always be changes in circumstances between the initial hearing and subsequent hearings--the child matures, parents may remarry, divorce, move, have more or less income than at the initial hearing, there may be other children added to the family through birth or remarriage that change the relationship of the child to the custodial parent, and so forth.

But what life is all about is growth and change. However, these changes, which we take for granted, do not automatically trigger the right of a court to re-examine whether or not one parent might be preferred as custodian over another, as is the test at an initial hearing. Thus, mere changes that occur as life goes on do not, standing alone, justify a modification of custody. What we look for when we review the trial court's action is evidence of a decisive and substantial change in circumstances which either establishes the unfitness of the custodial parent or affects the welfare of the child so that it renders the original custodial order unreasonable. For the reasons we state below, we conclude there was no showing of a substantial and continuing change in the custodial parent's circumstances warranting a change of custody from Walker (Mother) to Father.

Scope of Review

The best interest of the child is committed to the sound discretion of the trial court and will be only reversed on appeal upon a showing of abuse of that discretion. Marshall v. Reeves (1974), 262 Ind. 107, 311 N.E.2d 807, 811, opinion supplemented on other grounds, 262 Ind. 403, 316 N.E.2d 828; Hyatte v. Lopez (1977), 174 Ind.App. 149, 366 N.E.2d 676 (child custody in paternity case); Fox v. Fox (1984), Ind.App., 466 N.E.2d 789 (child custody under divorce statute). An abuse of discretion exists where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the trial court or the reasonable, probable and actual deductions to be drawn therefrom. Campbell v. Campbell (1979), 182 Ind.App. 661, 396 N.E.2d 142.

Our function on appeal is to examine the decision of the trial court and determine whether the record discloses evidence or reasonable inferences to be drawn therefrom which serve as a rational basis to support the finding of the trial court. We will not reweigh the evidence or judge the credibility of the witnesses. K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749, 755. Our supreme court has set out the standards for appellate review of a trial court's custody modification. The first situation in which a reviewing court may reverse a custody modification is where there are a combination of two deficiencies: 1) a failure to allege and prove a decisive change in conditions, and 2) no findings by the trial court that there existed such changes in conditions which warranted modification. Absent such deficiencies, the abuse of discretion rule comes into play. Marshall v. Reeves, supra, 262 Ind. at 113, 311 N.E.2d at 811. Under either analysis, the result is the same in this case. The Father made allegations of abandonment which were unsupported by the evidence. The trial court made no specific findings in the order changing custody to Father. Looking at the record as a whole, and considering this jurisdiction's fixed policy favoring a stable, permanent home, the judge's decision is contrary to the logic and effect of the facts and circumstances.

Standard for Modification of Custody--Paternity

In decisions involving child custody--whether under the divorce statute or under the paternity statute--the best interests of the child are the primary consideration. ³ Poret v. Martin (1982), Ind., 434 N.E.2d 885 (divorce); Griffith v. Webb (1984), Ind.App., 464 N.E.2d 384 (paternity). In Griffith v. Webb, the trial court changed custody of a child from her mother--with whom she had lived for 7 years--to her father. The mother argued on appeal that there was insufficient evidence to show a substantial change in conditions. Judge Hoffman, speaking for the Court of Appeals, 3rd District, upheld the trial court noting the paternity statute, IND.CODE Sec. 31-6-6.1-11(e), does not contain the requirement of finding a substantial and continuing change of circumstances, but only requires the court to consider the best interests of the child. Judge Hoffman observed he could not understand the logic behind the legislature's decision to provide a different standard for custody modifications arising out of paternity actions than for those arising out of divorce situations and suggested this might have "constitutional ramifications". Id. at 385. But, in his opinion, only the legislature could change this discrepancy.

In our opinion, Griffith did not apply the correct standard of appellate review. In Griffith, Amanda was born to Susan Griffith in October 1976. Thomas Webb was adjudged to be the father in 1977. Amanda lived with her mother from birth until June 1983 when custody was changed to her father. In reviewing the trial court's decision, the court stated:

The evidence in this case demonstrated that both parties wanted custody of Amanda and Amanda exhibited no clear preference. Rather, she was well adjusted to both families including her stepmother and half-brother. There was some indication that Susan was not completely in the best of health. She also had a history of instability, particularly in the area of employment. Whereas, Thomas remained steadily employed and had developed familial ties. Thomas' home was small, but Susan had no home of her own and instead lived with her mother.

The situation in this action may have presented a "close call" for the trial court. However, in view of the evidence, we cannot say that the trial court's decision constituted an abuse of discretion. We cannot say that the change in custody was not in the best interests of the child, Amanda.

Griffith, supra, 464 N.E.2d at 386 (emphasis added).

It is apparent the Griffith court did not consider the fact that Susan had raised the child for seven years as an issue or as having any weight--and, consequently, treated the matter as an initial custody hearing, not a modification. By finding the child "was well adjusted to both families" and the case was a "close call", the court acknowledged that the decision could have gone either way, which is commonly the case in an initial custody determination. Id. There was no weight given to the policy or principle that permanence and stability is a paramount consideration when determining whether a change in custody is in a child's best interests. The Griffith opinion acknowledged the mother was a fit person and did not find the original order was unreasonable --and yet allowed the change of custody to stand. In addition, there was no indication in the opinion that the trial court determined the mother to be unfit, that remaining with the mother...