Schenk v. Schenk

564 N.E.2d 973, 1991 Ind. App. LEXIS 16, 1991 WL 3515
CourtIndiana Court of Appeals
DecidedJanuary 17, 1991
Docket82A01-8912-CV-516
StatusPublished
Cited by14 cases

This text of 564 N.E.2d 973 (Schenk v. Schenk) 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
Schenk v. Schenk, 564 N.E.2d 973, 1991 Ind. App. LEXIS 16, 1991 WL 3515 (Ind. Ct. App. 1991).

Opinion

ROBERTSON, Judge.

Karen S. Schenk appeals the modification of the child custody order in the decree that dissolved her marriage to Richard L. Schenk. The trial court modified the custody order by awarding Richard custody of the parties' three daughters. Karen raises six issues which we restate and consolidate into three, none of which constitute reversible error. Therefore, we affirm.

FACTS

Karen and Richard were married on August 10, 1974. The petition for dissolution was filed November 7, 1985. Three daughters were born to this marriage, A.S. (born July 17, 1976), M.S. (born January 80, 1980), and T.S. (born December 81, 1981). Karen was awarded custody of the three girls.

In approximately November of 1986, Larry Hampton, Karen's boyfriend and business partner, moved into Karen's home. From March to September of 1987, Hampton sexually molested the two older girls.

In September of 1987-immediately after Hampton was accused of the molestations-the three girls were taken into protective custody pursuant to a CHINS petition.! At these proceedings, the father (Richard) requested that he be given custody of the girls. The. mother (Karen) testified at the CHINS hearing that she would never have anything more to do with *976 Hampton and that she would sever both her business and personal relationships with him. The Juvenile Referee placed the children with the mother and ordered that the children have no contact with Hampton.

*975 to LC. 31-6-4-6. A CHINS proceeding is filed in the juvenile court and is concerned with the detention, disposition, and case plan for a child in need of services effected and implemented by the Department of Public Welfare. IC. 31-6-4.

*976 Karen purchased Hampton's share of the advertising business in which they were partners. Hampton moved in with his parents in Kentucky. However, Karen has continuously remained in contact with Hampton and has continued to employ him in their business as a contract worker, sending him various projects to accomplish. On the weekends that Richard had visitation with his daughters, Karen traveled to Kentucky to visit Hampton. Eventually, Karen resumed a romantic relationship with Hampton.

In December of 1988, Hampton was con-viected of molesting the two oldest girls. He was sentenced to six years in prison (one year executed with work release and five years suspended with probation). The conditions of probation prohibited Hampton from having any contact with the victims except under therapeutic circumstances and surroundings (joint counseling sessions).

Karen's and Hampton's business was and is known as Schenk-Hampton Advertising, Inc. At the time of the modification hearing, Hampton was the Creative Director and Vice-President of Schenk-Hampton Advertising, Inc. Hampton was expected to be released from prison shortly and Karen and Hampton had circulated a flyer or letter to their clients informing them that Hampton would soon be back at the office. Karen testified at trial that she intended to marry Hampton as soon as his work release was over-which was to take place when he was released from prison within the year.

The modification hearing consumed six days. Based on the evidence, the trial court found:

that the father has demonstrated substantial and material changes in the circumstances so significant and continuing as to make the former order of custody herein unreasonable. And the Court further finds that the best interests of the children of the parties, and each of said children, would be served by granting the father's Petition to Modify and placing the care, custody and control of the parties' children in the father, Richard L. Schenk. The Court further finds that the changes in circumstances include, but are not limited to the following: Larry Hampton, the boyfriend of the mother Karen molested two of the children; Karen has resumed her relationship with Larry Hampton personally and professionally; Karen and Larry intend to resume living together as soon as possible in the home purchased and owned jointly by them. (R.p. 124).

The trial court granted Karen reasonable visitation with the girls but placed the following restriction upon the visitation:

Under no cireumstances shall the mother permit the children to be in the presence of [Larry Hampton] or have any contact with him except upon prior specific permission of this Court. Said contact, if approved in the future by this Court, shall be in the presence of a therapist or counselor pursuant to Court approved and monitored therapy sessions. (Rp. 125).

DECISION

I.

Whether the trial court erred by basing its decision to modify the custody order on ctreumstances that had not yet taken place?

Karen asserts that Hampton may or may not move back in with her and the children. She argues the trial court's modification was erroneously premature. We disagree.

IND.CODE 31-1-11.5-22(d) governs custody modification. It reads:

The court in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable. In making its determination, the court shall not hear evidence on mat *977 ters occurring prior to the last custody proceeding between the parties unless such matters relate to a change of circumstances.

Our review of a trial court's decision regarding a child custody modification is limited to determining whether the trial court abused its discretion in applying the applicable statutory guidelines. Smith v. Dawson (1982), Ind.App., 481 N.E.2d 850. On appeal from a modification of a child custody order, we will not judge the eredi-bility of the witnesses or substitute our judgment for that of the trial court. Barnett v. Barnett (1988), Ind.App., 447 N.E.2d 1172. In determining whether the trial court abused its discretion in modifying a child custody order, we consider only that evidence which supports the trial court's decision. Smitk, supra. In reviewing the trial court's determination of custody rights, we will only reverse upon a showing of a manifest abuse of the trial court's discretion and such abuse will not be found unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable and actual deductions to be drawn therefrom. K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749. Upon an affirmative finding by the trial court that a change in circumstances has been so substantial and continuing as to make the existing child custody order unreasonable, the function of the reviewing court is merely to determine whether there was substantial probative evidence supportive of that conclusion and, if so, it cannot be said that the trial judge abused his or her discretion. Poret v. Martin (1982), Ind., 484 N.E.2d 885.

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Bluebook (online)
564 N.E.2d 973, 1991 Ind. App. LEXIS 16, 1991 WL 3515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schenk-v-schenk-indctapp-1991.