Winkler v. Winkler, 967

• Decision Date: 18 April 1969
• Docket Number: No. 967,967
• Citation: 17 Ind.Dec. 240,246 N.E.2d 375,252 Ind. 136
• Parties: Elmer WINKLER, Appellant, v. Jeanine A. WINKLER, Appellee. S 91.
• Court: Indiana Supreme Court

Page 375

246 N.E.2d 375

252 Ind. 136

Elmer WINKLER, Appellant, v. Jeanine A. WINKLER, Appellee.

No. 967 S 91.

Supreme Court of Indiana.

April 18, 1969.

Dan R. Winchell and William F. Landers, Jr., Indianapolis, for appellant.

Jessie Levy, Mary Louise Wolfard, Arch N. Bobbitt, Indianapolis, for appellee.

PER CURIAM.

This is an appeal from the Superior Court of Marion County, No. 3 modifying decree transferring custody of the three minor children of the parties, from the appellant to the appellee and awarding the appellee $7,200.00 a year as support for the children.

The decree issued after a trial before the court and the court having heard the evidence, and arguments of counsel, modified the change of custody of the three minor children, granting the custody to their mother, the appellee. It was further found that a reasonable sum for the support of the minor children should be fixed at the court's interview and cross-examination provided visitation of the minor children with their father, the appellant, at least every other weekend beginning Saturday at 9:00 A.M. and ending Sunday at 5:00 P.M. The court also allowed a reasonable amount for attorney fees of plaintiff-appellee's attorney in the sum of $500.00.

A nunc pro tunc entry, five days after the decree, was granted which set forth 'That since the granting of the divorce herein on June 26, 1963, from a fair preponderance of the evidence submitted, there has been a substantial change of conditions affecting the best interests and the personal welfare of the minor children of the parties warranting a change of custody from the father to the mother.' Said nunc pro tunc entry was incorporated in the decree and became a part thereof.

Appellant contends that the trial court erred in making extra judicial inquiry into the facts at issue and in considering the results of such inquiry as evidence. The appellant further contends that counsel's consent to interview did not waive appellant's objection to error, further contending that the statements solicited from the children in private interview were materially prejudicial to appellant's cause; that there was no substantial showing of change of circumstances to justify change of custody. Furthermore, that the trial court's restriction of appellant's right of visitation was not supported by the evidence and is contrary to law; that the support allowed exceeds the necessary or proper amount, and that it was error to require appellant to pay appellee's attorney fees.

On the question as to the court's interview, omitting the formal parts, we quote:

'And afterwards to wit March 14, 1967, being the 8th Judicial Day of the March term, 1967, of said Court, before the Honorable Glenn W. Funk, Judge thereof, the following further proceedings were had herein towit:

'Court files pursuant to motion results of interview with children, * * *.'

It is apparent from the record that appellant's attorneys in open court consented to the interview by the court of the two older children, Michel and Philip; further, appellant refused the invitation to be present at the court's interview and crossexamination of the children of the parties. Appellant having consented to an interview of the children by the court, and having consented to such procedure and not making prompt objection thereto could not wait until the outcome of the interview was known before making his objection. Spencer v. State (1958), 237 Ind. 622, 624, 147 N.E.2d 581, 72 A.L.R.2d 304.

As to the attorney fees appellant cannot for the first time raise the issue of the authority or propriety of the allowance of a fee for appellee's attorney when such issue was not raised or presented in the trial court. Sicanoff v. Miller et al. (1960), 131 Ind.App. 535, 546, 167 N.E.2d 481. In the present case the burden was upon the appellant to raise the question of lack of authority of the trial court...