Cunningham v. Cunnningham

787 N.E.2d 930, 2003 Ind. App. LEXIS 760, 2003 WL 21019529
CourtIndiana Court of Appeals
DecidedMay 7, 2003
Docket79A05-0210-CV-493
StatusPublished
Cited by15 cases

This text of 787 N.E.2d 930 (Cunningham v. Cunnningham) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cunningham v. Cunnningham, 787 N.E.2d 930, 2003 Ind. App. LEXIS 760, 2003 WL 21019529 (Ind. Ct. App. 2003).

Opinion

OPINION

MATHIAS, Judge.

Andrew K. Cunningham's ("Father") and Diana (Cunningham) Cartwright's ("Mother") marriage was dissolved in 1998. Mother and Father were awarded joint custody of their two children, with Mother having physical custody. In 2002, Father *932 filed a petition to modify custody in Tippecanoe Superior Court. The trial court denied the petition, and Father appeals raising three issues, which we restate as the following two:

I. Whether the trial court erred when it denied Father's petition to modify custody; and,
II. Whether the trial court abused its discretion when it refused to conduct an in camera interview with the children unless both parties agreed.

Finding that there is evidence to support the trial court's denial of Father's petition to modify custody, a decision to which we must give substantial deference, we affirm.

Facts and Procedural History

Father's and Mother's marriage was dissolved in 1998. Father and Mother were awarded joint custody of their two children, K.C. and N.C., with Mother having physical custody. At the time of the divoree, K.C. was nine years old and N.C. was nearly seven years old. In 1999, Mother married Don Cartwright ("Stepfather"), who has custody of his three minor daughters.

On July 30, 1999, Father filed his first petition to modify custody. At that time, a guardian ad litem ("GAL") was appointed. In his report, the GAL concluded that Mother should retain physical custody of K.C. and N.C. At the time of that report, Mother indicated that she and Stepfather were purchasing a home in Lebanon, Indiana, which is only thirty-two miles south of Father's home in Lafayette. Family therapist, Dennis Edwards, was also hired to complete a custody evaluation. Dr. Edwards determined that Father should be granted physical eustody of the children. On April 4, 2000, the trial court denied Father's petition to modify custody.

It is not entirely clear from the record whether Mother, K.C., and N.C. ever resided with Cartwright and his three daughters prior to January of 2001. However, due to instability in Mother's marriage and her father's illness, K.C. and N.C. resided with Father from the summer of 2000 until January of 2001. Also, at all times prior to January of 2001, K.C. and N.C. attended school in Tippecanoe County.

In January of 2001, Mother, with K.C. and N.C., moved to Indianapolis where they began to live with Stepfather and his daughters. K.C. and N.C. were enrolled in Warren Township Schools where they remain today. Father was unable to continue with his court ordered Wednesday night visitation due to the eighty-mile distance between the two residences. However, he regularly sees the children nearly every weekend, which is in excess of his court-ordered visitation of every other weekend.

After the move to Indianapolis, K.C.'s grades dropped significantly, but N.C.'s grades remained consistent. Both children no longer participate in extracurricular activities to the extent that they were able to do so prior to moving to Indianapolis. Also, since the move to Indianapolis, K.C. admits to using marijuana on at least one occasion. Stepfather admits that his relationship with K.C. is "a little strained" and that "it's a difficult situation." 'T'r. p. 235. Mother believes that K.C.'s and N.C.'s relationship with their stepsisters is good, but also admits that there have been adjustment problems with blending the two families.

On May 9, 2002, Father filed a second petition to modify custody. The previously appointed GAL filed a supplemental report, and Dr. Edwards filed a second custody evaluation. Both recommended that Father should be awarded physical custo *933 dy of the children. In his report, the GAL concluded: +

[KC.] has not adjusted well to the events and changes that have occurred in the mother's home and life the past 3 years. He has for a long period of time talked about living with his father, and based on all that has happened I believe it is in his best interests for that to occur at this time.
[N.C.] has avoided some of the inter family conflicts in the mother's house. My perception is she "flys below the radar" not wanting to draw attention or create conflict in the home. She has had a lengthy opportunity to live in the mother's/stepfather's home and assess how she feels about it and her stepsisters. She has spent considerable visitation time with the father since the divorcee. She feels she would like an opportunity to try living in her father's home. I believe she should be given an opportunity to try living with her father.

Appellant's App. p. 24.

During his eustody evaluation, Dr. Edwards interviewed only Mother, Father, and the children. He also asked both K.C. and N.C. to complete certain sentences expressing their feelings on a worksheet entitled "Incomplete Sentences Blank." In his report, Dr. Edwards noted that their "responses to the Incomplete Sentences Blank are dominated by the stress they have been under regarding the conflict between their parents and the conflict in the Cartwright home." Appellant's App. p. 16. However, when he testified at the hearing held on Father's petition, Dr. Edwards stated, "it's not too good to read too much into one response unless we've had a follow-up interview in which you ask, what did you mean by that, or can you tell me some more about that." Tr. p. 82. Dr. Edwards then stated that he did not conduct a follow up interview with the children. Tr. p. 32.

During Dr. Edwards' custody evaluation, both children indicated a preference to live with Father. Dr. Edwards also observed that K.C. has developed a negative attitude about school that was not present during his initial evaluation in 1999. Finally, in his report, Dr. Edwards stated:

At the time of my initial evaluation, I had concerns about the children being able to adjust to multiple changes, including school, neighborhood, home and the stepfamily living situation, if primary custody was awarded to the mother. It would appear that the children have had difficulty making these adjustments, particularly [K.C.]. They have had to try to "fit in" with an existing family and home, sharing living space with stepsisters. This stress, along with the separation from his father, seems to have undermined [K.C.'s] motivation to succeed in school. I am concerned that neither parent sought any professional counseling to help with those adjustment difficulties.

Appellant's App. p. 17.

A hearing was held on Father's petition on August 22, 2002. At the hearing, both the GAL and Dr. Edwards testified, in addition to Mother, Stepfather, Father, and several family members. Also, Father's fiancée, who now resides in Father's home with her thirteen-year old son, testified regarding her relationship with K.C. and N.C. At the hearing, both Father and Mother indicated their willingness to attend counseling with the children. While Mother admitted that there have been adjustment problems in blending the two families, she also testified that K.C. and his stepsister Kelly, who are close in age, ride bikes and go shopping together, and that they are pretty good friends. Tr. p. *934

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Bluebook (online)
787 N.E.2d 930, 2003 Ind. App. LEXIS 760, 2003 WL 21019529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-cunnningham-indctapp-2003.