Johnson v. Nation

615 N.E.2d 141, 1993 Ind. App. LEXIS 635, 1993 WL 191399
CourtIndiana Court of Appeals
DecidedJune 9, 1993
Docket30A05-9111-CV-359
StatusPublished
Cited by12 cases

This text of 615 N.E.2d 141 (Johnson v. Nation) 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
Johnson v. Nation, 615 N.E.2d 141, 1993 Ind. App. LEXIS 635, 1993 WL 191399 (Ind. Ct. App. 1993).

Opinion

SHARPNACK, Chief Judge.

Joseph Johnson (Father) appeals the trial court’s judgment transferring sole custody of his two minor children from himself to Patricia Nation (Mother) and granting him visitation rights. We reverse in part.

Father raises several issues for our review, but, because of our resolution of this *143 case, we need address only the following restated issues:

(1) Are the trial court’s conclusions of law clearly erroneous?
(2) Did the trial court err by determining that Mother, as the noncustodial parent, was not required to take her children to various religious functions during her visitation time with the children?
(3) Did the trial court err by denying Father’s request for modification of Mother’s visitation rights?

The facts and procedural history relevant to this case are as follows. After nine years of marriage, Mother and Father were divorced in 1985 and the trial court awarded Father sole custody of Tyler, who was five years old, and Maggie, who was two years old. The trial court granted Mother reasonable visitation rights.

In November of 1985, Mother requested the court to reconsider its order pertaining to custody of the children and the trial court denied her request. In January of 1987, Mother filed a petition to modify the parties’ dissolution decree seeking joint and shared physical custody of the children and designation of specific, regular periods when she would- have physical custody of the children.

At Father’s suggestion, Mother and Father met in an attempt to resolve their differences. Following extensive negotiations, the two prepared a written agreement, which they submitted to their respective attorneys. Mother entered into this agreement, in lieu of going to trial, because of the extensive visitation rights she received pursuant to the agreement. 1 In May of 1987, the court approved the parties’ “Agreed Modification of Decree of Dissolution of Marriage.” (Record, pp. 45-47.)

In August of 1990, Father filed a petition to modify Mother’s visitation, alleging that the existing visitation arrangements served neither the best interests of the children nor the best interests of the parents. On November 28, Mother filed a petition requesting, first, that the court modify custody by granting her sole custody of the children, and, second, that, after that modification, the court provide her existing visitation schedule to Father.

In May of 1991, a hearing was held on the parties’ cross petitions for modification. In August, the court entered extensive findings of fact and conclusions of law, as well as a judgment which granted sole custody of the children to Mother and granted Father extensive visitation. It is from this judgment that Father appeals.

First, Father argues that we must reverse the trial court because its conclusions of law are clearly erroneous. We agree.

In an initial custody determination, no presumption favors either parent. Ind. Code § 31-l-11.5-21(a). The court assumes that both parties are equally entitled to custody, but bases a decision on which parent would better rear the child. Walker v. Chatfield (1990), Ind.App., 553 N.E.2d 490, 492. The best interests of the child determines custody. I.C. § 31-l-11.5-21.

A change of custody request is governed by a different standard. Adams v. Purtlebaugh (1951), 230 Ind. 269, 102 N.E.2d 499. Only upon “a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable” may a trial court modify a custody arrangement. I.C. § 31-1-11.5-22(d). This statute is a codification of our case law, which requires a change in circumstances so decisive in nature as to make a change in custody necessary for the welfare of the child. Poret v. Martin (1982), Ind., 434 N.E.2d 885, 888.

The trial court here made extensive findings of fact and conclusions of law. Where the trial court has heard the evidence and had the opportunity to judge the credibility of the witnesses, a reviewing *144 court will not set aside the findings of fact and conclusions of law unless they are clearly erroneous. Lawyers Title Ins. Corp. v. Pokraka (1992), Ind., 595 N.E.2d 244. In determining whether findings of fact and conclusions of law are clearly erroneous, we will neither reweigh the evidence nor determine the credibility of the witnesses; rather, we will consider only the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. Id. Only where the record contains no facts or inferences supporting the trial court’s findings are the court’s findings of fact clearly erroneous. Where uncontra-dicted evidence may support conflicting inferences, the inferences drawn by the trier of fact will prevail. Id. Only when the evidence is without conflict and leads to but one conclusion, but the trial court reached a contrary conclusion, will we reverse the trial court’s decision as being contrary to law. Id.

The trial court’s “findings of fact” and conclusions of law relevant to this issue read as follows:

“11. On November 28, 1990, after having taken the deposition of Joseph Johnson on November 14, 1990, [Mother] filed her Petition to Modify seeking custody of Tyler and Maggie. In that petition [Mother] alleged that [Father] had essentially become preoccupied with his church related and evangelistic activities and that this change in [Father] constituted a substantial and continuing change of circumstances since the date of the entry of the Decree on September 10, 1985'....
12. From the date of the marriage of the parties on October 27, 1976 until their separation on May 31,1985, religion played a very insignificant factor in the family life. The evidence is that at the most [Mother] and [Father] attended church once or twice per year and were not involved in any church related activities. Based upon this and other testimony, the Court finds that the parties held a belief in God during their marriage and that their objective was to raise their children with the recognition of the ethical values (such as the Ten Commandments) which are found in their religion.
* * * * * *
14. Upon returning to Greenfield, [Father] reestablished his ties with his home church and began to become deeply involved in church activities. [Father’s] current wife is the choir director at his church and each of them are involved in many different church and church related activities.
15.

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

Related

Carl Wayne Montgomery v. Patricia Ann Montgomery
59 N.E.3d 343 (Indiana Court of Appeals, 2016)
Lesley Farley Pitcavage v. Joel Michael Pitcavage
11 N.E.3d 547 (Indiana Court of Appeals, 2014)
In re the Marriage of Kenda
873 N.E.2d 729 (Indiana Court of Appeals, 2007)
In Re the Marriage of McSoud
131 P.3d 1208 (Colorado Court of Appeals, 2006)
A.G.R. Ex Rel. Conflenti v. Huff
815 N.E.2d 120 (Indiana Court of Appeals, 2004)
Appolon v. Faught
796 N.E.2d 297 (Indiana Court of Appeals, 2003)
Hoffman v. Heim
784 N.E.2d 985 (Indiana Court of Appeals, 2003)
In Re Paternity of KRH
784 N.E.2d 985 (Indiana Court of Appeals, 2003)
Winkler v. Winkler
689 N.E.2d 447 (Indiana Court of Appeals, 1997)
Periquet-Febres v. Febres
659 N.E.2d 602 (Indiana Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
615 N.E.2d 141, 1993 Ind. App. LEXIS 635, 1993 WL 191399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-nation-indctapp-1993.