Brickley v. Brickley

210 N.E.2d 850, 247 Ind. 201, 1965 Ind. LEXIS 325

• Court: Indiana Supreme Court
• Decided: October 18, 1965
• Docket: 30,702
• Status: Published

Opinions

Per Curiam.

This is an appeal from an order of the lower court granting a change of custody of the daughter of the parties from the appellant-father to the appellee-mother.

Appellant filed motion for new trial asserting the findings of the lower court were not sustained by sufficient evidence and were contrary to law. The overruling of such motion is assigned as error on this appeal.

From the record it appears that on October 26, 1962, a divorce was granted by the lower court to appellee. By such decree custody of the four year old daughter of the parties was awarded to appellant with appellee being granted visitation privileges with such child of one week-end per month and two week-ends during the summer.

Subsequently on February 29, 1963, appellee filed petition to change the custody order which after a hearing was denied on April 26, 1963. Thereafter' on June 12, 1963, appellee filed petition to modify the order as to visiting privileges with the result that the court after hearing evidence granted appellee on October 19, 1963, more liberal visitation privileges. No appeal was taken from such rulings.

On April 29, 1964, appellee filed the instant petition for change of custody from which this appeal stems. The lower court on May 25, 1964, after hearing evidence granted the change of custody of the daughter of the parties from appellant-father to appellee-mother.

The lower court’s findings of facts supported by evidence were in substance to the following effect: The child was in the custody of the paternal grandmother from November 1962 until January 1963 and possibly until March 1963 in Bluffton, Indiana. Subsequent to such time successive housekeepers were hired by appellant (Dr. Brickley) who was a busy surgeon, to look after such child in his residence. Appellant admitted some difficulty in keeping housekeepers. Appellant’s sister stayed at his home and took care of the child while appellant was actively seeking a new housekeeper. A Mrs. Titus was the first housekeeper hired by appellant. A Mrs. Price was hired as housekeeper shortly prior to the October 3, 1963 hearing on change of visitations, and stayed until sometime in February or March 1964 when she left to go to the assistance of - her mother who had a heart attack. During the period of Mrs. Price’s absence appellant’s mother and sister were each there part of the time.

It is of course the settled law that for a change of custody to be warranted from that previously ordered by the court there must be a change in conditions from the date of the last order, and the change must be of such a decisive character as to make the same necessary for the welfare and happiness of the child. Adams v. Purtlebaugh (1952), 230 Ind. 269, 274, 102 N. E. 2d 499, 501; Morrison v. Morrison (1960), 130 Ind. App. 270, 279, 164 N. E. 2d 113, 118; Wible v. Wible (1964), 245 Ind. 235, 239, 196 N. E. 2d 571, 573.

Although it is not pointed out by appellant in his briefs, it is true there were some references in the lower court’s findings to a change in conditions since the date of the divorce decree. We believe, however, these recitals should be considered merely as surplusage as there were specific references in the findings to material changes of conditions supported by the evidence which on their face appeared to have occurred since the last prior adjudication in 1963. They were:

(1) Said child has now reached school age, and would be required to enter elementary school in the fall of 1964.

(2) As established by the testimony of Dr. Palmer, a psychiatrist, the child has symptoms of (a) anxiety complex, being torn between mother and father, and (b) a depression complex, all occurring while in custody of the defendant-father.

There were further findings as to a change in conditions as to the mother’s (Marie S. Brickley’s) mental and physical condition and drinking addiction, in that the preponderance of evidence was held to show on April 29, 1964 (Judge Funk’s hearing) that her condition had improved and she no longer required treatment.

The court further found from the evidence' that the home of the mother at Riverside, Illinois, which was in the residence of her parents and had been reported-on by the Cook County Department of Public Aid, was a fit and proper place-for said child; that said conditions and environment near the school and in the home where her half-brother also lived, were in the better interests of said child than her present environment where her father who was a busy surgeon was only able to see her a limited period of time and she was left to the association and control of changing housekeepers or the intermittent care of a paternal grandmother and aunt.

While ive are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions¹ that we are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.

On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal. See: Daniels v. Indiana Trust Company (1943), 222 Ind. 36, 48, 51 N. E. 2d 838, 843; Kist v. Coughlin (1944), 222 Ind. 639, 656, 57 N. E. 2d 199, 205; Rush v. Hunziker (1940), 216 Ind. 529, 536, 24 N. E. 2d 931, 934.

As we stated in Heckman v. Heckman (1956), 235 Ind. 472, 478, 134 N. E. 2d 695, 698:

“. . . In considering the sufficiency of the evidence to sustain the finding of the court, a fragment, part or portion of the evidence is not plucked from the whole and appraised alone, but all the evidence, together with all the permissible and reasonable inferences deductible therefrom, is surveyed to determine the ultimate facts and circumstances established thereby favorable to the decision of the trial, court. A reversal of a judgment predicated upon a finding results only when there exists no competent evidence to support such finding.”

The record in this cause discloses probative evidence which supports the lower courts’ findings. This Court is in no position to invade the province of the trier of the facts, nor to express an opinion as to what significance should be given certain testimony in the record.

The lower court’s findings being sustained by sufficient evidence and not being contrary to law, the order of the lower court appealed from is now affirmed.

Myers, J., not participating; Achor, J., dissents.

1 . See cases collected in 4 West’s Ind. Digest, § 1010, p. 750.