Wible v. Wible, 30506

• Citation: 245 Ind. 235,196 N.E.2d 571
• Decision Date: 05 March 1964
• Docket Number: No. 30506,30506
• Parties: Suzann K. WIBLE, Appellant, v. James H. WIBLE, Appellee.
• Court: Supreme Court of Indiana

Page 571

196 N.E.2d 571

245 Ind. 235

Suzann K. WIBLE, Appellant, v. James H. WIBLE, Appellee.

No. 30506.

Supreme Court of Indiana.

March 5, 1964.

Rehearing Denied April 20, 1964.

Albert W. Ewbank, George A. Henry, Indianapolis, for appellant.

Donald J. Bolinger, Kokomo, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for appellee.

ARTERBURN, Judge.

This is an appeal from a judgment of the court entered upon a motion to modify the permanent custody of the children of the parties to this cause. After being married approximately twelve years, the parties were divorced on April 1, 1960. They had three minor children (ages 10, 7 and 6), whose custody was given to the mother (the appellant) at the time of granting of the divorce. The petition to modify the permanent custody of the children was filed approximately six to seven months later, specifically November 7, 1960. In a motion for a new trial, which was overruled, the appellant states that there was no evidence nor allegations of any material change in conditions to support the court's modification of the judgment fixing the permanent custody of the children.

As we read the briefs on each side of the controversy, we are led to believe that these parties, both hot-tempered and contentious, were inclined to quarrel over petty matters as easily as over more important issues. It appears that at visitation time both parties showed little restraint or toleration towards each other in the meetings. Quarreling arose because the mother was not as punctual as she probably should have been in having the children ready, or because the children were sick with the mumps, or happened not to be at home at the time. An illustration of the difficulties of the two is: At one time when the children were placed in the car to be taken away by the father for a visit, the mother claims she opened the door to kiss her daughter goodbye and the father started the car up, injuring her to some extent, while the father claims that the mother attempted to grab the child and take her out of the car to keep her from making the visit. It is with such factual background and similar contentions that the briefs of both parties are filled.

The trial court in such matters as this must be concerned solely with the welfare of the children and not with the desires of the parents. It is claimed by the appellant that the trial court held her in contempt for her failure to comply fully with the order of visitation, and punished her by depriving her of the children. Of course, the custody of children cannot be used as a means of punishing the parents. It is the children's welfare--not the parents'--that must control the actions of the court.

It is further contended by the appellant that although the court was presented with the petition to modify on November 7, 1960, the special judge appointed to hear the petition to modify continued the matter with hearings from time to time until May, 1962, when he finally made the order changing the permanent custody of the children to the father. During that time the court made interlocutory orders, temporarily giving the custody of the children to the father. The appellant claims that during this time the trial court permitted the appellee to have the custody of the children and to use many months 'as a build-up of proof' to be used on the final hearing; that the court permitted the introduction of evidence that occurred subsequent to the filing of the petition to modify on November 7, 1960 and thus gave the appellee a chance 'to make a case for himself.'

Regardless of all these contentions, it appears to us that we may not re-try the facts or weigh the evidence, as the parties apparently desire us to do on appeal. Rather, we are limited to a consideration of whether or not the trial court, in a second petition to modify the order for the permanent custody of the children (reviewed by a second judge) had sufficient ground therefor. Was there a substantial change in condition? The second petition to modify the judgment fixing the permanent custody of the children contains no allegations that there has been a substantial change in their condition. The only allegation in the petition for change of custody that even attempts to show a change in condition is that allegation which alleges that the plaintiff moved the children from the Kokomo school system where they were attending school, and took them to Indianapolis. The evidence on this point shows that the appellant-mother gave up the property in which she was living in Kokomo to the appellee-father, since it was given to him as part of the settlement in the divorce action, and moved to Indianapolis. There she rented property near her father and mother--both of whom were physicians. There was evidence to the effect that this made the appellee-father angry because he desired them to stay in that home and make the mortgage payments thereon. There is no evidence, however, which shows that this change in the schooling of the children was unwarranted, unreasonable, or, in fact, was injurious to the children.

There was a great deal of evidence with reference to the illness of the mother. The evidence was that the father even told the children not to mind the mother--that she was 'sick in the head'. However, when he married her he knew of her temperament and that certain drugs were prescribed which she used during the twelve-year period they were married. The appellee is a physician.

Appellant contends all these issues bearing on the custody of the children were gone into and considered in the hearing for a divorce and the custody of the children; that this second hearing on the petition to modify their custody...