Walker v. Walker
| Decision Date | 21 June 1989 |
| Docket Number | No. 49A04-8807-CV-0025,49A04-8807-CV-0025 |
| Parties | In re the Marriage of Teresa A. WALKER, Appellant (Petitioner), v. Stephen D. WALKER, Appellee (Respondent). |
| Court | Indiana Appellate Court |
Teresa A. Shook, Indianapolis, for appellant.
Gale M. Phelps, Phelps & Fara, Indianapolis, for appellee.
Teresa A. Walker appeals the award of joint legal custody with respect to her daughter, Jessica (presently age 4), entered in conjunction with her divorce from Stephen D. Walker. We affirm.
Whether the court abused its discretion in entering an order of joint legal custody?
The largely undisputed facts indicate Teresa and Stephen were married on April 28, 1984. One child, Jessica, was born to the marriage May 20, 1985. Teresa moved out of the marital residence May 1, 1987 and filed for dissolution June 25, 1987. (Jessica was 2 years old at that time.)
At the contested final hearing of dissolution on March 4 and 22 of 1988, both parties asked for sole custody of Jessica. The court's dissolution decree provided for the joint legal custody of Jessica. Stephen got physical custody. He and Jessica will continue to live in the marital residence. Teresa is to pay $30.00 a week child support.
During the separation, the couple demonstrated an ability to cooperate concerning the care of Jessica. They had worked out amicable visitation and daycare arrangements without court supervision. They presently live within 10 to 15 minutes (travel time) of each other.
Additional facts are supplied as needed.
Child custody determinations fall squarely within the discretion of the trial court and will not be disturbed except for an abuse of discretion. Brown v. Brown (1984), Ind.App., 463 N.E.2d 310. On review, we will not reweigh the evidence, adjudge the credibility of the witnesses, nor substitute our judgment for that of the trial court. We will examine the evidence to determine if there is any evidence supporting the trial court's determination. We will not reverse unless we find the trial court's decision is against the logic and effect of the facts and circumstances before the Court or the reasonable inferences drawn therefrom. Whitman v. Whitman (1980), Ind.App., 405 N.E.2d 608.
IND.CODE 31-1-11.5-21 governs joint custody orders. It reads:
(a) The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there shall be no presumption favoring either parent. The court shall consider all relevant factors including:
(1) The age and sex of the child;
(2) The wishes of the child's parent or parents;
(3) The wishes of the child;
(4) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(5) The child's adjustment to his home, school, and community; and
(6) The mental and physical health of all individuals involved.
* * * * * *
(f) The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child. As used in this section, "joint legal custody" means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training. An award of joint legal custody does not require an equal division of physical custody of the child.
(g) In determining whether an award of joint legal custody would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) The fitness and suitability of each of the persons awarded joint custody;
(2) Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) The wishes of the child and whether the child has established a close and beneficial relationship with both of the persons awarded joint custody.
(4) Whether the persons awarded joint custody live in close proximity to each other and plan to continue to do so; and
(5) The nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
Teresa argues the court abused its discretion in awarding joint custody because the award is not in the best interests of the child and is contrary to law because it is not supported by the evidence. She argues:
[the transcript] is replete with acknowledgments of fights, disagreements, arguments, and general resentment toward one another. Teresa testified that Stephen had been physically abusive toward her and that he lost his temper often. Teresa testified that she was the chief caretaker of Jessica and that Stephen was gone much of the time. On the other hand, Stephen testified that Teresa had been abusive toward him and that she was short tempered. Stephen stated that he wouldn't trust Teresa with a gun.
Yet, he also testified that he had pushed her down and felt resentful toward Teresa and her boyfriend, David Hawk. Stephen testified that he had been the principal caretaker of Jessica and that Teresa was gone much of the time.
Both Teresa and Stephen testified that there were many disputes and arguments. They testified that they argued about when and where Jessica should be allowed to visit and that visitation had been denied. They argued about what time Jessica should be returned home and who should provide transportation. They could not agree on whether the child was sick and who should take her to the doctor. They disputed who was responsible for taking her to the dentist. The parties showed an inability to cooperate, even for the sake of the child. Appellant's brief p. 5.
A thorough examination of the record does not support Teresa's version of the facts. The trial court could easily have found some of the incidents alluded to of minor importance. Other incidents alluded to are materially misrepresented or have no basis in the record.
The record does indicate some incidents of violence. At the breaking point in the marriage (immediately before Teresa moved out), Teresa testified Stephen "jerked" her out of bed, "jerked" her through the hallway and "slung" her into the other bedroom "because he wanted to talk to me." The record indicates the following circumstances surrounding the incident: 1) It was five o'clock in the morning and Teresa had only been home a short time. She had been out on a date with the man she presently lives with. (The trial court could have appreciated Stephen's anger without condoning the use of violence.) 2) Teresa had been in bed with Jessica (the court could have found Stephen's desire not to argue with Teresa in Jessica's presence commendable.)
Teresa also testified, without contradiction, that on another occasion Steven had jerked her hair and had taken Jessica from her arms. Teresa and Stephen admitted that they had argued on other occasions in the past.
Teresa testified that, on one occasion during the separation, she had a problem picking Jessica up for her period of visitation (or returning her after her period was over--the record is unclear). This problem had arisen because she did not have transportation. Although she had at least one automobile available to her, she had a car pool arrangement with a co-worker to save money. Stephen testified that if there was a similar problem in the future he would pick Jessica up when it was time for her to come home.
Teresa testified about an occasion during the separation when she and Stephen had not agreed about Jessica's medical needs. The evidence most favorable to Teresa indicates that when she had dropped Jessica off at Stephen's house, she told him she thought Jessica should go to the doctor because she was sick. She thought Stephen would take Jessica to the doctor on his day off. When she returned to pick Jessica up, Jessica had not been to the doctor and was still sick. Teresa took Jessica to the doctor who treated her for an ear infection. Stephen testified that, at the time, he did not think Jessica needed to go to the doctor.
Stephen did testify he did not trust Teresa with a gun. But, this testimony is taken out of context. He was arguing he should be awarded a particular gun owned by the parties as part of the property settlement.
Teresa directed us to page 221 of the record to support her assertion (quoted above) that Stephen resents her and her boyfriend, David Hawk. Stephen's testimony on that page reads:
Very little law in Indiana has been decided concerning joint legal...
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