White v. White

• Decision Date: 31 August 1995
• Docket Number: No. 49A02-9406-CV-352,49A02-9406-CV-352
• Citation: 655 N.E.2d 523
• Parties: Sandy L. WHITE, Appellant (Petitioner), v. Daniel G. WHITE, Appellee (Respondent).
• Court: Indiana Appellate Court

Page 523

655 N.E.2d 523

Sandy L. WHITE, Appellant (Petitioner), v. Daniel G. WHITE, Appellee (Respondent).

No. 49A02-9406-CV-352.

Court of Appeals of Indiana.

Aug. 31, 1995.

Audrey K. Grossman, Treacy, Grossman & Sullivan, Indianapolis, for appellant.

Nancy L. Cross, Miroff, Cross, Ruppert & Klineman, Indianapolis, for appellee.

OPINION

SULLIVAN, Judge.

Sandy L. White (Sandy) appeals the trial court's decree dissolving her marriage to Daniel G. White (Daniel) and awarding custody of the couple's two minor children to Daniel.

We affirm.

The sole issue Sandy presents for our review is whether the trial court committed reversible error when it refused to allow her to call the parties' ten-year-old son as a witness at the dissolution hearing. ¹

On April 25, 1994, the trial court entered a Decree of Dissolution dissolving Daniel and Sandy's marriage. The decree awarded Daniel custody of the couple's two minor children. The facts most favorable to the trial court's judgment disclose that Daniel and Sandy married in 1982. Two children were born of the marriage, a son, Joshua, and a daughter, Jessica. On April 30, 1993, Sandy filed a dissolution petition. The trial court held a final contested hearing on the dissolution petition on January 13, 1994, at which both Sandy and Daniel sought custody. At the time of the hearing, Joshua was ten years of age, and Jessica was five. Before the submission of evidence at the hearing, Sandy's counsel requested that the trial court conduct an in-camera interview with the couple's two children before it made a custody decision. The trial court took the matter under advisement pending submission of all evidence.

Sandy called Daniel as her first witness, and he testified, among other things, that Sandy had a bad temper. The next witness was Dr. Richard L. Lawlor, a clinical psychologist who conducted a custody evaluation. ² Dr. Lawlor was Daniel's witness, but the parties agreed to allow him to testify out of order during Sandy's case-in-chief. Dr. Lawlor testified at trial that it would be in the best interests of the children for the trial court to award sole custody to Daniel because Sandy was engaging in a pattern of behavior known as parental alienation syndrome, a series of actions and "maneuvers" by which she would attempt to exclude Daniel and to denigrate him in the eyes of the children. ³ Dr. Lawlor also stated that Sandy displayed excessive anger and hostility toward Daniel.

Daniel's mother, Dorothy White (Dorothy), and his sister-in-law, Elizabeth White (Elizabeth), both testified that Sandy displayed anger and hostility. They also each testified that they saw Sandy kick Joshua. ⁴ Near the end of Daniel's presentation of evidence, the court informed counsel that it would have to resume the hearing at a later date.

On February 11, 1994, four days before the date on which the hearing was set to resume, the trial court denied Sandy's request for an in-camera interview. The hearing continued on February 15, 1994, ⁵ at which time Daniel testified and then rested his case. Sandy presented two rebuttal witnesses, both of whom testified that they had never seen Sandy become physically abusive toward her children, and that she would provide a suitable environment for the children. Next, Sandy's trial counsel attempted to call Joshua as a rebuttal witness. Daniel's counsel objected to "exposing [Joshua] to a Court Room", contending that testifying would have a damaging emotional effect on him. Record at 534. The trial court sustained Daniel's objection and refused to allow Sandy to call Joshua as a witness, stating, in part, as follows:

"It is the position of this Court and has been the position of this Court since day one that children of the parties are not to be called as witnesses. I will allow children of the parties to be called as witnesses if the issue is emancipation for the limited purpose of them testifying as to whether they meet the qualifications of the statute. I will allow children of the parties to be called as witnesses for the limited purpose of them testifying as to advanced educational expenses.... I think that it is abundantly clear, based on [I.C. 31-1-11.5-21(d) ] and based on case law, that it is within this Court's discretion to exclude children as witnesses." Record at 542-43.

Sandy then testified as a rebuttal witness and specifically denied allegations that she ever kicked Joshua as Elizabeth and Dorothy White had testified.

On February 25, 1994, the trial court entered findings of fact and an order awarding Daniel custody of the children. The trial court's findings formed the basis for the dissolution decree, which awarded Daniel sole custody subject to Sandy's guideline visitation. ⁶

At custody hearings, a parent seeking custody bears the burden to demonstrate his or her fitness, and may submit evidence which reflects the other parent's incapacity to serve the child's best interests. The trial court then exercises its discretion to award custody of the child consistent with the child's best interests. E.g., In re Marriage of Myers (1979) 3d Dist., 180 Ind.App. 284, 387 N.E.2d 1360, 1364. This court generally will not reverse a custody determination absent a manifest abuse of discretion. See Buchanan v. Buchanan (1971) 256 Ind. 119, 267 N.E.2d 155, 158; Myers, supra at 1364; Schwartz v. Schwartz (1976) 1st Dist., 170 Ind.App. 241, 351 N.E.2d 900, 901. A trial judge abuses his or her discretion if he or she renders a decision that is clearly against the logic and effect of the facts and circumstances before the court or the reasonable inferences to be drawn therefrom. Prenatt v. Stevens (1992) 4th Dist. Ind.App., 598 N.E.2d 616, 619; Walker v. Walker (1989) 4th Dist. Ind.App., 539 N.E.2d 509, 510. See also Myers, supra, 387 N.E.2d at 1364; Schwartz, supra at 901; Shaw v. Shaw (1973) 2d Dist., 159 Ind.App. 33, 304 N.E.2d 536, 539.

By refusing to allow Joshua to testify in any manner during the dissolution proceedings, the trial court essentially made two determinations. First, it refused to allow Joshua to rebut Dorothy and Elizabeth White's allegations that Sandy kicked him on a specific occasion or occasions. In addition, the trial court also foreclosed Sandy from eliciting any testimony regarding Joshua's custody preference. We therefore review each of these decisions.

I. Exclusion of Child's Rebuttal Testimony

Sandy contends that the trial court committed reversible error in not allowing Joshua to rebut Dr. Lawlor's allegations that she restricted the children's access to Daniel, as well as the allegations that Sandy kicked him. Daniel responds that the trial court did not err because I.C. 31-1-11.5-21(d) ⁷ grants a trial judge discretion not to allow a child to testify at dissolution proceedings. Alternatively, Daniel contends that even if the trial court committed error, it was harmless because other evidence in the record addressed the same points that Joshua would have made on the stand. Daniel specifically draws our attention to the fact that Sandy testified on rebuttal and denied the allegations that Dorothy and Elizabeth White had made.

Because Joshua was ten years of age at the time of the hearing, Indiana law does not presume that he was incompetent to testify. ⁸ We mention the issue of Joshua's competency because Sandy devotes a significant portion of her briefs to arguing that the trial judge could not automatically presume Joshua incompetent. We agree. In doing so, however, we note that the trial judge's reluctance to allow Joshua to testify does not appear to arise because of a determination or even a suspicion that Joshua was incapable of understanding the nature and significance of an oath. Rather, it appears that the trial judge was more concerned about the emotional toll on Joshua which testifying in his parents' dissolution proceeding would exact. Nevertheless, while the trial judge's motives were no doubt admirable in trying to shield Joshua from the dissolution and custody proceedings we must agree that he erred in doing so with regard to certain rebuttal testimony.

The facts here are similar to those presented in Bowman v. Bowman (1948) 118 Ind.App. 137, 77 N.E.2d 900. Bowman involved the proffered testimony of an eleven-year-old child of the parties to a dissolution proceeding whose father offered her as a witness at those proceedings. After the girl gave her age and stated that she was a child of the parties, her mother's attorney objected to any " 'further use' " of her testimony due to her age and the "nature of the case." Id. 77 N.E.2d at 901. The trial court sustained the objection and refused to allow the child to testify further. Upon appeal, the Bowman court reversed, first noting that children over ten years of age are competent witnesses. Id. The court then stated that it knew of "no authority vested in the trial court" which would allow the court to exclude the child's testimony in such a situation. Id.

Here, the trial judge determined that I.C. 31-1-11.5-21(d) as well as case law ⁹ placed within his discretion whether to exclude children of the parties as witnesses in dissolution proceedings. We disagree with the trial judge's interpretation of I.C. 31-1-11.5-21(d). I.C. 31-1-11.5-21 addresses child custody orders. Section (a) provides that a trial court "shall determine custody and enter a custody order in accordance with the best interests of the child" and that the court "shall consider all relevant factors" including those which the statute specifies. ¹⁰ Section (d) provides as follows:

"The court may interview the child in chambers to ascertain the child's wishes. The court may permit counsel to be present at the interview, in which event a record may be made of the interview and the same may be made part of the record for purposes of appeal."

Section (d) is a provision which allows a trial judge to interview minor children in chambers to ascertain their views regarding, for example,...