Watkins v. Watkins
| Decision Date | 29 March 1943 |
| Docket Number | 27850. |
| Citation | 47 N.E.2d 606,221 Ind. 293 |
| Parties | WATKINS v. WATKINS. |
| Court | Indiana Supreme Court |
Appeal from Elkhart Circuit Court; Aldo J. Simpson Judge.
George Sands, of South Bend, for appellant.
John W. Thomas and George A. Crane, both of South Bend, for appellee.
The appellee sued the appellant for a divorce and for the custody of their three-year old child in the St. Joseph Superior Court. The complaint charged cruel and inhuman treatment and that the appellant was not a fit person to have the custody of said child. After the case was at issue the parties joined in requesting the court to cause its Probation Department to make a thorough investigation as to the conditions surrounding their respective homes, and that said report be received by the court and considered as evidence on the issue of the custody of said child, should a divorce be granted.
The venue of the cause was then changed to the Elkhart Circuit Court where the appellant filed a cross-complaint charging the appellee with cruel and inhuman treatment, and asking for the custody of said child on account of the appellee's alleged unfitness.
At the conclusion of the evidence the presiding judge declared, in open court:
Subsequently the court found for the appellant on her cross-complaint and that she was entitled to a divorce, but that the child should be made a ward of the court, placed in the custody of the appellee, and cared for in the home of the paternal grandparents, until the further order of the court. After the finding was announced, but before judgment, the appellant moved to see the report of the Probation Department, which motion was overruled. Judgment was then entered in accordance with the finding. During the term the appellant filed motions to modify the judgment and for a new trial on account of alleged errors relating to the order as to the custody of the child, both of which motions were overruled.
The propositions relied on for reversal are: (1) That it was error to deny the appellant's request to see the report which the Probation Department made to the court; and (2) that since the court found that the appellant was entitled to a divorce it was an abuse of discretion and contrary to law to adjudge, on the same evidence, that the appellee was entitled to the custody of the child.
The stipulation authorizing an investigation and report by the Probation Department was never withdrawn and followed the case to the trial court. Whether any such investigation was conducted or any report prepared or filed we do not know. The judge's certificate to the bill of exceptions recites that it 'contains all the evidence given in said cause.' No such report is contained therein, nor is there any showing that any was submitted or considered. The burden is on one asking for a reversal to present a record disclosing that error was committed. Under the...
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