Mikels v. Mikels

228 N.E.2d 20, 248 Ind. 585, 1967 Ind. LEXIS 485

• Court: Indiana Supreme Court
• Decided: July 11, 1967
• Docket: 31,055
• Status: Published

Opinions

Mote,

J.—We have before us for consideration the trial court’s decision and judgment which changed the custody of a minor child from the Appellant to the Appellee, after the hearing on a petition alleging changed conditions.

The only question presented by the appeal is whether such judgment and decree of the trial court was proper, it being asserted that the evidence does not disclose a change of conditions from the time of the decree of divorce and the awarding of custody to Appellant of such a decisive character as to make it necessary for the welfare and happiness of the child, employing the exact language as that used in Adams v. Purtlebaugh (1951), 230 Ind. 269, 102 N. E. 2d 499, and under the language in the opinion in Wible v. Wible (1964), 245 Ind. 235, 196 N. E. 2d 571.

Appellant also cites Brickley v. Brickley (1965), 247 Ind. 201, 210 N. E. 2d 850, wherein the following language was employed:

“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.”

We are not critical of the language used in Brickley v. Brickley, supra, Wible v. Wible, supra, and Adams v. Purtlebaugh, supra, indeed, we subscribe thereto; however, in determining the import and the decisive character of the evidence, the trial judge, before whom the parties and the witnesses appeared, is clothed with the obligation and responsibility of evaluation. If there is any evidence, or legitimate inferences therefrom, to support the finding and judgment of the trial court, this Court may not intercede or interfere and exercise or use its judgment as a substitute for that of the trial court.

We find ample, substantial evidence in support of the trial court’s order and judgment changing the custody of the minor child of the parties from the Appellant to the Appellee. While we do not regard the evidence as overwhelming, it is enough. This theory is so well supported by such a long line of cases decided by the appellate tribunals of Indiana that it needs no cited authorities in support of same.

Our attention has been .called to Gilchrist v. Gilchrist (1947), 225 Ind. 367, 75 N. E. 2d 417. While this opinion precedes the above referred to and relied upon authorities in point of time, the language therein contained is quite as potent in its application as the day it was written. This Court said:

“The disposition of children presents a delicate and perplexing task which has taxed the wisdom of judges since the day of Solomon. The trial court is better able to arrive at a sound and safe conclusion than can a court of review which has only the cold printed or typed record before it. It is true that the facts in this case are not in great dispute but even where evidentiary facts are admited different inferences and conclusions may be drawn therefrom, and conclusions and judgments may hang upon intangibles and impressions not cognizable to a court of review. The trial court in this case saw the mother and the stepmother and was in better position to weigh the evidence and the inferences therefrom and determine the best interest of the child, and having done so, it is not for us to substitute our judgment for the judgment of the trial court’s unless it appear from uncontradicted and undisputed evidence and the only inferences therefrom that the trial court violated its discretion and reached an untenable position. To reverse this case would require us to hold that the trial judge violated sound judicial discretion in reaching his conclusion. This we are unwilling to do.”

A motion by Appellee to dismiss the appeal herein is still pending; such motion is now overruled.

Based upon what we have stated herein, we conclude that there is ample, substantial evidence of probative value to sustain the order and judgment of the trial court and that the same is not contrary to law.

Judgment affirmed.

Hunter, C. J. and Arterburn, J., concur. Jackson, J., dissents with opinion. Lewis, J., not participating.