Richardson v. Morgan

612 N.E.2d 157, 1993 Ind. App. LEXIS 358, 1993 WL 104876

• Court: Indiana Court of Appeals
• Decided: April 12, 1993
• Docket: 48A05-9204-CV-126
• Status: Published

Opinions

BARTEAU, Judge.

Ranaye Richardson and Daniel Morgan were divorced in 1988. At that time, the two agreed that they would have joint custody of their twin sons (now age 11), with Ranaye having primary physical custody. This agreement, as well as a very complicated visitation schedule, was made a part of the divorce decree. On March 20, 1991, Daniel sought modification of the original custody order, alleging "a substantial and continuing change of circumstance to warrant a modification of the Court's previous custody order." (R. 25). After hearing evidence and interviewing the twins in camera, the trial court granted Daniel's petition to change the children's primary residence, leaving the joint custody order intact. On appeal from this order, Ranaye argues that the evidence does not support a finding of changed circumstances to support the modification. She also argues that she was denied due process. We agree with Ranaye that the evidence does not support the trial court's decision and reverse. Because we reverse, we will not address Ranaye's due process argument.

FACTS

Ranaye is a special education teacher at a local school. She is married to a police officer with the Madison County Sheriff's Department. Ranaye, her second husband, her husband's nine year-old son from a previous marriage, and the twins live in the same home in which Ranaye and Daniel lived during their marriage-a three bedroom home on a two-acre lot off of Highway 9 in Anderson. Ranaye's work schedule is such that she arrives home when the boys do. Although she leaves before they do in the morning, her husband is at the house with the children. Her husband's schedule varies depending on the type of work he is doing at the time. In addition to his job with the sheriff's department, Ranaye's husband also does odd jobs. The boys attend church with their mother and step-father. Several witnesses testified that Ranaye was a fit mother and that her home was suitable for the children.

Daniel works at Inland Fisher Guide and his second wife is a legal secretary. They live in a two bedroom duplex in a rural area. By all accounts, this home is nice and adequate for the children. Daniel is very involved in the boys' upbringing and has coached the boys' sports teams.

The boys, Jarrell and Joseph, are both bright children who are described as mature for their age. Both parents describe the twins as being happy and seemingly well adjusted when they are with that particular parent. The boys do well academically and are very involved in sports. There is evidence that Daniel and Ranaye disagree on how to raise the children. Considerable testimony was elicited at trial regarding one incident in particular. Ranaye became upset when she saw Daniel, who was coaching the boys' basketball team, spank one of the boys in front of the team father. members during practice. In response, Ra-naye would not permit the twins to play on a basketball team which Daniel coached. Eventually, however, Ranaye agreed to their playing basketball on the week nights and weekends when they were with their (Under the original order, Daniel had custody of the boys two nights during the week in addition to every other weekend).

Dr. Kenneth Dimick acted as a moderator to help Ranaye and Daniel work out problems in the joint custody arrangement. He had agreed with Ranaye and Daniel that he would not testify in court as to which party he felt should have custody. He did, however, testify that he did not think it would be harmful for the children if Daniel were to have primary physical custody of the boys. He also testified that both boys had a strong desire to live with Daniel. Dr. Dimick testified that the boys' Intelligence Quotient test scores had dropped since the original custody order; however, there was no indication as to why this drop occurred. Further, Dr. Dimick testified that test scores will vary from one test to the next. There is no evidence that the boys had any discipline or behavior problems.

After hearing testimony from several witnesses and interviewing both boys in camera, the trial court entered the following order:;

ORDER

The Court having taken under advisement the Petition to Modify filed by Husband on March 20, 1991 and having heard evidence on said petition on July 18, 1991, October 30, 1991 and November 6, 1991 and having interviewed the minor children in chambers now finds that the Agreement entered by the parties and filed with the Court on April 7, 1988 should be modified to read as follows:

CUSTODY AND VISITATION¹

5. The children shall reside primarily with father.

6. Mother shall have all reasonable access to the children, which shall include no less than the following:

a) Alternate weekends from Friday at 8:80 p.m. until 8:00 p.m. on Sunday. However, mother shall transport the children on said weekends to any activities in which the children have been previously enrolled.

b) One weekday evening from the close of school until 8:80 p.m. when the children are not scheduled to participate in school related or athletic activities. Father shall advise mother no less than two weeks in advance of said activities so the week-day evening visitation can be scheduled.

8. In addition, during the period of time when the children are with father, he shall extend the mother the right to baby sit for the children when a sitter is required, taking into account the children's wishes and reasonable opportunities for relatives to have the children and spend time with them.

9. Father shall have the children for a period of four weeks immediately after the school year ends. The children shall then be with mother for four weeks. Father shall then have the children with him for the balance of the school summer vacation.

18. The prior Order that father pay support is hereby vacated. The Court was not provided with information concerning the current incomes of each party and will hold a hearing on this issue upon the filing of a praecipe by either party. Alternatively, the Court will consider the filing of stipulations by the parties concerning either their agreement concerning the amount of child support or stipulations of the respective incomes of the parties and a child support guideline calculation sheet from which the Court will rule without a hearing.

All remaining provisions of the Agreement entered by the parties on April 7, 1988 remain in full force and effect.

(R. 42-3).

DECISION

As in any other custody modification case, a parent seeking to change the primary residence of a child where a joint custody order is in place must show a change in circumstances so substantial and continuing as to make the original residential arrangement unreasonable. Ind.Code 31-1-11.5-22; Lomb v. Wenning (1992), Ind., 600 N.E.2d 96. As stated by our supreme court:

We conclude that the more stringent modification of custody standard should apply. The same concerns about stability and continuity present in sole custody modifications are present in the joint custody situation. One of the most significant elements of stability in the child's life is the child's primary caretaker-the person who cooks his meals, puts him to bed, and cares for him on a daily basis. It is certainly likely in joint custody arrangements that both parents are more involved in rearing a child. Still, when a child lives primarily with one parent under joint custody, a modification which sends a child to live with the other parent may have the same effect, as far as the child is concerned, as a traditional change in custody. Therefore, we hold that where there is joint legal custody with one parent providing the child's primary residence, a court may modify that residence only upon a showing of changed circumstances so substantial and continuing as to make the original residential arrangement unreasonable.

Id. at 98. It is not sufficient that a change in the custodial home has taken place: the petitioner must show that the change is of a decisive, substantial and continuing nature. Simons v. Simons (1991), Ind.App., 566 N.E.2d 551. Further, to prevail on a petition to modify custody, the non-custodial parent bears a heavy burden of overcoming the custodial parent's right to continued custody. Id.; Elbert v. Elbert (1991), Ind.App., 579 N.E.2d 102, 106.

Our review of the trial court's decision to modify custody is limited to determining whether the trial court abused its discretion in applying the applicable statutory guidelines. Id.; Schenk v. Schenk (1991), Ind.App., 564 N.E.2d 978, 977, reh'g denied. We will not reweigh the evidence nor judge the credibility of witnesses and we may only consider that evidence which supports the trial court's determination. Id. We will reverse a modification decision if there has been a manifest abuse of the trial court's discretion. S-mons, 566 N.E.2d at 554. An abuse of discretion occurs if the petitioner fails to allege and prove a decisive change in conditions and there are no findings by the trial court of such changes. Id.

Such an abuse of discretion oc curred here. Although Daniel alleged in his modification petition that there had been a substantial change in cireumstances, he made no allegations as to what those changes were. Further, he failed to prove at trial that there have been such changes. The only real change found in Ranaye's life is that she has remarried and there is another boy living in the house. This, standing alone, is not sufficient to show a decisive change in circumstances.

Daniel argues in his brief that Ranaye has "created an atmosphere in the boys home where their contact with father, one of the things they most desire is minimized and thwarted at every turn." Appellee's Br. 10. This allegation is not supported by the evidence. Admittedly, Ranaye did not want the boys to play on the basketball team that Daniel coached. She testified that she was opposed to Daniel coaching the boys after she saw Daniel spank one of the boys at practice. Whatever her reasons, she did propose a compromise which was accepted by Daniel. There is no evidence that Ranaye interfered with any of Daniel's scheduled visits. Further, there is no evidence that Ranaye tried to undermine Daniel in front of the boys.

Daniel also places much stock in the boys' expressed desire to live with him. However, absent evidence that the existing custody order is unreasonable, a child's wishes will not support a modification of custody. Id.

In summary, we find that the trial court abused its discretion by modifying the 1988 child custody order and reverse.² Because we reverse the modification, we need not address Ranaye's argument that she was denied procedural due process.

REVERSED.

RUCKER, J., concurs. HOFFMAN, J., dissents with opinion.

1 . The numbering on this order is intended to correspond with numbered paragraphs in the divorce decree. The fact that the numbers are not consecutive should not be taken to mean that the order is in some way incomplete.

2 . We recognize in Lamb v. Wenning (1992), Ind., 600 N.E.2d 96, an opinion handed down after the trial court's order in this case, the supreme court remanded the custody modification to the trial court "for evaluation of the evidence according to the change in custody standard...." Id. at 99. In Lamb, the trial court judge stated at the hearing that he was going to modify custody because it would be in the best interest of the children. In the written order, however, he stated that there had been a change of circumstances to warrant the modification, but did not state what those circumstances were. The petitioner had not alleged changed circumstances in his petition. Unsure which standard the trial court employed, the supreme court remanded for clarification.

Here, however, Daniel did allege a change in circumstances. Further, there is no indication that the court used the "best interest" standard, as was the case in Lamb.