Marriage of Spoor v. Spoor

641 N.E.2d 1282, 1994 Ind. App. LEXIS 1495, 1994 WL 598520
CourtIndiana Court of Appeals
DecidedOctober 31, 1994
Docket45A03-9310-CV-00362
StatusPublished
Cited by12 cases

This text of 641 N.E.2d 1282 (Marriage of Spoor v. Spoor) 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
Marriage of Spoor v. Spoor, 641 N.E.2d 1282, 1994 Ind. App. LEXIS 1495, 1994 WL 598520 (Ind. Ct. App. 1994).

Opinion

OPINION

HOFFMAN, Judge.

Appellant Reba Ann Spoor, n/k/a Reba Ann Lyon, appeals the trial court's determination modifying custody of the three children born during her marriage to appellee William Spoor. The facts relevant to the appeal appear below.

An order dissolving the marriage of William and Reba was entered on November 26, 1985. Custody of Billy born November 15, 1979; Patty born February 7, 1982; and Jack born May 2, 1983 was awarded to Reba. William was ordered to pay $125.00 per week in child support and was granted reasonable visitation.

Extensive litigation followed. In February 1987, William filed for a modification regarding medical expenses, the tax exemption, and visitation. The petition was resolved by an agreed order in June 1987.

In February 1988, William filed a petition to modify custody. In September 1988, William filed a petition for temporary custody pending the final hearing. Both petitions were denied. After an appeal by William, the lower court's decision was affirmed in a memorandum decision by this Court on January 30, 1991.

Prior to this Court's memorandum decision, William filed a petition to modify visitation on September 18, 1989, and Reba filed a petition for an increase in child support in November 1989. The parties entered into an agreed order regarding the visitation schedule. The petition for an increase in child support was granted.

*1284 In May 1991, William filed a petition to decrease child support. The petition was denied.

In August 1992, William filed the petition to modify custody with which this appeal is concerned. William alleged substantial changes in circumstances such that the care and custody of the parties' minor children should be changed. The specific changes alleged were: 1) that Reba's husband, Michael, abused alcohol and was physically and emotionally abusive to the children on a regular basis; 2) that Reba did not provide safe and appropriate housing for the children; and 3) that Reba and Michael do not provide the children with a loving and nurturing environment and often leave them inadequately supervised. William alleged that his wife, Cindy, was a full-time homemaker and would care for the children. William's petition was accompanied by an affidavit from "Edith Hartnett, Psy.D." upon which he sought emergency temporary custody of the children.

Protracted proceedings ensued. The children, the Lyons, and the Spoors were evaluated by a licensed clinical psychologist, Marguerite P. Rebesco, PhD. Dr. Rebesco found strengths and weaknesses in the parenting abilities of all the adults. Her recommendation was that all of the adults work together and through counseling to meet the "exhausting" needs of the children. She concluded that the children would benefit from joint legal custody with physical custody changed to William at the conclusion of the school year.

Over the course of several months, eviden-tiary hearings were held at which the parties and the children testified. On June 29, 1998, the court entered findings of fact and conclusions of law determining that physical custody should be changed to William, with consultation between William and Reba as to many decisions. The trial court's extensive findings and conclusions rely heavily upon the evaluation by and testimony of Dr. Re-besco. The trial court rejected in toto the evaluation by Hartnett.

As distilled, the court found that Reba frequently "abdicated" her parenting responsibilities to her parents and Michael due to her work and school situation; that the children's hygiene often appeared neglected; that the children had academic difficulties in school; that Reba's father had twice made disparaging comments about William which made the children uncomfortable; and that the custodial home was a mere 600-750 square feet, lacking adequate heat in Patty's bedroom and was located in a rural setting without opportunities for socializing with other children. The court also concluded that William demonstrated ability to set limits for the children; that Cindy was a full-time homemaker who could offer care to the children; and that William's home was 2,000 square feet located near parks and other homes offering opportunities for the children to make friends.

As restated, Reba presents one issue for review: whether the trial court erred in determining that William proved a change in circumstances so substantial and continuing so as to make the existing custody order unreasonable.

Upon an initial custody determination, the trial court presumes that both parents are equally entitled to custody. Robertson v. Robertson: (1994), Ind.App., 634 N.E.2d 93, 94. However, in a petition to modify custody, the petitioner must demonstrate the existence of changed cireum-stances so substantial and continuing as to make the existing custody order unreasonable. Id.; IND.CODE § 81-1-11.5-22(d) (1993 Ed.). The standard is in place to avoid the disruptive effect of moving children back and forth between divorced parents and to dissuade former spouses from using custody proceedings as vehicles for revenge. Kuiper v. Anderson (1994), Ind.App., 634 N.E.2d 556, 557-558. Accordingly, it has long been recognized that the welfare of the children is paramount and is promoted by affording them permanent residence rather than the insecurity and instability that follow changes in custody. Id. at 558. This is so even though at any given point in time the noneus-todial parent may appear capable of offering "better" surroundings, either emotional or physical. Id.

*1285 The standard, however, does not require a trial court to find that the present custodial parent is unfit prior to granting a change. Id. The changes asserted in the petition are to be judged in the context of the whole environment. Id. A trial court's inquiry in proceedings to modify a eustody decree is strictly limited to consideration of changes in circumstances which have occurred since the last custody decree. In re Marriage of Simmons (1985), Ind.App., 487 N.E.2d 450, 453-454.

When reviewing a trial court's decision as to modification of custody, this Court determines whether the record discloses evidence or reasonable inferences to be drawn therefrom which serve as a rational basis to support the findings of the trial court. Robertson, 634 N.E2d at 94. The trial court's determination will be reversed only when the petitioner fails to allege and prove a decisive change in conditions and the trial court does not make findings that there was a change in conditions which warranted a modification of custody, or when the trial court abuses its discretion. Id. at 94-95.

As noted above, not only must changes be substantial and continuing so as to render the prior custody decree unreasonable, the changes must have occurred since the prior custody order. In the present custody order, the trial court reported the difficulty in making the determination that a change would be in the best interests of the children.

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

Related

Donald C. Searing v. Karen Vivas (mem. dec.)
Indiana Court of Appeals, 2016
In Re: The Paternity of J.K., A.K. v. T.L.
Indiana Court of Appeals, 2013
Wolljung v. Sidell
891 N.E.2d 1109 (Indiana Court of Appeals, 2008)
Baxter v. McKinney
766 N.E.2d 1203 (Indiana Court of Appeals, 2002)
In Re Paternity of MJM
766 N.E.2d 1203 (Indiana Court of Appeals, 2002)
Mundon v. Mundon
703 N.E.2d 1130 (Indiana Court of Appeals, 1999)
Campbell v. Campbell
975 S.W.2d 869 (Court of Appeals of Arkansas, 1998)
Hanson v. Spolnik
685 N.E.2d 71 (Indiana Court of Appeals, 1997)
Jones v. Jones
931 S.W.2d 767 (Supreme Court of Arkansas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
641 N.E.2d 1282, 1994 Ind. App. LEXIS 1495, 1994 WL 598520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-spoor-v-spoor-indctapp-1994.