In Re the Marriage of Myers

387 N.E.2d 1360, 180 Ind. App. 284
CourtIndiana Court of Appeals
DecidedApril 25, 1979
Docket3-578 A 134
StatusPublished
Cited by17 cases

This text of 387 N.E.2d 1360 (In Re the Marriage of Myers) 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
In Re the Marriage of Myers, 387 N.E.2d 1360, 180 Ind. App. 284 (Ind. Ct. App. 1979).

Opinions

STATON, Judge.

After hearing evidence, the trial court issued a decree dissolving the marriage of Bruce Myers and Laura Myers and awarding custody of their son, Keith Allen Myers, to Laura Myers. Bruce Myers appeals the grant of custody.1 We hold that the trial court abused its discretion when it acted under a presumption that the mother should have custody of a child upon dissolution of marriage.

At the end of 1974, Bruce and Laura Myers agreed their marriage was irretrievably broken. They agreed that Bruce would file a petition seeking dissolution of their marriage and that he would retain custody of Keith, born April 15, 1973. Bruce filed the petition on December 31, 1974. Hearings were held on five occasions extending over nineteen and one-half months. On November 2, 1977, each side rested. On December 13, 1977, the court entered judgment awarding custody of Keith to Laura.

Bruce filed a motion to correct errors which was denied. Attached to the motion was the sworn affidavit of Thomas C. Sop-ko, the attorney who represented Bruce at the hearings relating to the dissolution proceeding. Sopko indicated (referring to an attached exhibit) that on November 4,1977, the court notified the attorneys of its intended disposition of the case, including its decision to award custody of Keith to Laura. On November 7, the next regularly scheduled court date, Sopko conferred with the trial judge, the Honorable William Ho-sinski. In his affidavit, Sopko averred:

“10. That during the course of said conversation the undersigned advised the Judge of the undersigned’s great surprise and concern regarding the Judge’s decision on the matter of custody of the one minor child of the parties.
“11. That during the course of said conversation, the Judge, indicated to the undersigned that the only testimony that the Court was actually concerned with was the testimony of the two (2) psychiatrists who testified on the last day of the series of the aforementioned hearings.
“12. That additionally, the Judge also indicated to the undersigned that while the Judge was familiar with the present [1362]*1362status of the Dissolution of Marriage Act which sets forth that there no longer is any presumption favoring the mother in the determination of child custody, that he was of the personal opinion that the mother should be given the benefit of the doubt.
“13. That the Judge went on to further relate that it was his personal opinion that in most instances that the mother is the more appropriate custodial parent.
“14. That thereafter, the undersigned and counsel for the Respondent while endeavoring to work out some mutually agreeable visitation program with the child for the Petitioner, had occasion to have a joint conference in the Chambers of the Honorable William Hosinski during which said conversation the undersigned and counsel for the Respondent inquired as to the opinion of the Court with regard to what would be a reasonable visitation program.
“15. That the undersigned suggested to the Court that since his client had, in fact, had custody of the minor child for approximately three and one-half (3V2) years, and at all points in time since the Petition for Dissolution of Marriage was filed back in December of 1974, that the undersigned was of the considered opinion that his client should now enjoy at least the same liberal visitation program that the Court had established during the course of the proceeding for the Respondent-mother when she was the noncustodial parent.
“16. That the Judge indicated to the undersigned that this should necessarily not be the case as in the Judge's opinion it had been ‘an abnormal situation’ wherein the father had custody of the child during the pendency of these proceedings.
“17. That once again, during the course of this second conversation, the undersigned had additional discussions with the Court concerning a father being awarded custody of his children, and again the Judge indicated that it was his opinion that in most situations, the mother is, and should be, presumed to be a more fit and proper person to be the custodial parent.”

Sopko’s affidavit was attached to Bruce’s motion to correct errors pursuant to Ind. Rules of Procedure, Trial Rule 59(D), which provides as follows:

“When a motion to correct errors is based upon evidence outside the record, the cause must be sustained by affidavits showing the truth thereof served with the motion. The opposing party has fifteen [15] days after service of affidavits in which to serve opposing affidavits and fifteen [15] days after service of the motion in which to file cross-errors' or in which to assert relevant matters relating to the kind of relief to be granted. The period for filing affidavits may be extended for an additional period not exceeding thirty [30] days for good cause shown or by written stipulation.”

Laura’s attorney, who was present at one of the conversations between Sopko and the trial judge, failed to file any opposing affidavits.

Sopko’s affidavit became part of the record of the proceedings under Ind. Rules of Procedure, Appellate Rule 7.2(A)(1). The trial judge certified the transcript and failed to file opposing affidavits, under AP. 7.2(A)(3)(c).

Under the rules of our courts, if Sopko’s affidavit contained erroneous statements, either Laura or the trial judge could have filed opposing affidavits. Since no opposing affidavits were filed, this court must accept as true the facts averred in Sopko’s affidavit filed on behalf of Bruce. Roberts v. Watson (1977), Ind.App., 359 N.E.2d 615; Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592. See also Jackson v. State (1978), Ind.App., 372 N.E.2d 1242.

Accepting such facts as true, we must determine whether the trial judge’s remarks constitute reversible error in regard to the determination of custody.

Indiana statutory law provides as follows:

[1363]*1363“the court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there shall be no presumption favoring either parent.” IC 1971, 31-l-11.5-21(a) (Burns Code Ed., Supp.1977).

The trial judge was bound to render his custody decision in accordance with this provision. However, Judge Hosinski’s remarks to Sopko indicated he was unable or unwilling to do so—he personally presumed that in most instances the mother is the more fit and proper custodial parent, and that the mother should be given “the benefit of the doubt.”

The trial judge’s remarks at the close of the evidence provide further support for Bruce’s contention that the judge acted with a presumption in favor of the mother. The judge stated:

“There is no doubt in the Court’s mind about the competency or the genuine concern of the mother, Laura, or the father to take care of his son. There never was a question with the Court as to if he is a competent person to take care of his child.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

White v. White
655 N.E.2d 523 (Indiana Court of Appeals, 1995)
Hunsberger v. Hunsberger
653 N.E.2d 118 (Indiana Court of Appeals, 1995)
Crider v. Crider
635 N.E.2d 204 (Indiana Court of Appeals, 1994)
Laudig v. MARION CTY. BD. OF VOTERS REG.
585 N.E.2d 700 (Indiana Court of Appeals, 1992)
Laudig v. Marion County Board of Voters Registration
585 N.E.2d 700 (Indiana Court of Appeals, 1992)
Alberts v. MacK Trucks, Inc.
540 N.E.2d 1268 (Indiana Court of Appeals, 1989)
Sebastian v. Sebastian
524 N.E.2d 29 (Indiana Court of Appeals, 1988)
In Re Marriage of Salas
447 N.E.2d 1176 (Indiana Court of Appeals, 1983)
Bish v. State
421 N.E.2d 608 (Indiana Supreme Court, 1981)
Brokus v. Brokus
420 N.E.2d 1242 (Indiana Court of Appeals, 1981)
Dh v. Jh
418 N.E.2d 286 (Indiana Court of Appeals, 1981)
D. H. v. J. H.
418 N.E.2d 286 (Indiana Court of Appeals, 1981)
Abell v. Clark County Department of Public Welfare
407 N.E.2d 1209 (Indiana Court of Appeals, 1980)
Highfield v. Lang
394 N.E.2d 204 (Indiana Court of Appeals, 1979)
In Re the Marriage of Myers
387 N.E.2d 1360 (Indiana Court of Appeals, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
387 N.E.2d 1360, 180 Ind. App. 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-myers-indctapp-1979.