Whitman v. Whitman

405 N.E.2d 608, 76 Ind. Dec. 607, 1980 Ind. App. LEXIS 1509
CourtIndiana Court of Appeals
DecidedJune 17, 1980
Docket2-378A95
StatusPublished
Cited by70 cases

This text of 405 N.E.2d 608 (Whitman v. Whitman) 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
Whitman v. Whitman, 405 N.E.2d 608, 76 Ind. Dec. 607, 1980 Ind. App. LEXIS 1509 (Ind. Ct. App. 1980).

Opinions

SHIELDS, Judge.

Wife appeals the trial court’s judgment modifying custody of the parties’ minor children and determining Husband’s delinquent support obligation.

Reversed in part; affirmed in part.

Under terms of the 1974 decree dissolving the parties marriage, Wife was granted custody of their two children and Husband was ordered to pay $15 per week for each child as support. In August, 1977 Husband filed a petition to modify the custody order alleging a substantial change of conditions. Wife then petitioned to cite Husband for contempt for unpaid support of more than $1,000.1 After a consolidated hearing on the petitions, the trial court found Husband delinquent under the support order, although not in contempt. Specifically considering expenditures made by Husband, the trial court ordered Husband’s delinquency satisfied by the transfer of $450 to Wife.2 The trial court also found a substantial change of conditions warranted transfer of the custody of the children to Husband.

Wife contends the trial court abused its discretion and acted contrary to law by

(1) modifying the original custody order,
(2) computing Husband’s support delinquency to allow for his expenditures for the children; and
(3) failing to find Husband in contempt for not paying the required support;

Modification of Custody

IC 31-1-11.5-22(d) [Burns Code Ed., Supp.1979] permits the trial court to modify custody provisions only upon “a showing of [610]*610changed circumstances so substantial and continuing as to make the existing custody order unreasonable.” The trial court’s determination that conditions justify modification rests in its sound discretion, and to challenge this determination Wife must demonstrate the trial court abused its discretion. Campbell v. Campbell, (1979) Ind.App., 396 N.E.2d 142, 143.

Although the evidence is conflicting, that favorable to the trial court’s decision supports a finding of a substantial change of circumstances.3 During the three years the children were in Wife’s custody they had moved seven times. There was evidence indicating that for a period in 1976 the children’s living quarters were cramped and unsanitary. When the children visited with Husband and his new wife in summer, 1976, the children were initially so unruly that one babysitter threatened to quit. However, their behavior improved over the summer and the children were described as healthier looking after their visit with Husband. Husband’s ability to care for the children had substantially improved since the decree, — he had bought a home with room to accommodate the children and was married to a woman who cared for the children and for whom the children had affection. In the latter part of 1976, Wife and the children moved to Georgia with Husband’s consent, but for several months Husband was unable to locate them.

However, IC 31-1-11.5-22(d) requires that prior to modifying a custody order the trial court determine not only that changed conditions be substantial but that they be continuous. The evidence presented at trial relates to conditions dating one to one-and-one-half years prior to the hearing. There was no evidence that the conditions continued even months before the modification determination. Indeed, uncontroverted evidence presented by Wife indicates the children most recently were not unruly nor dirty and were doing well in school.4 At the time of the hearing Wife was providing as much living space for the children as Husband, each child having a separate bedroom.

When reviewing the trial court’s discretionary determination, this Court examines the evidence to determine if there is any evidence supporting the trial court’s determination; and it is only when the trial court’s determination is “against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be draw therefrom” that we will reverse. Marshall v. Reeves, (1974) 262 Ind. 107, at 115, 311 N.E.2d 807, at 812. The overlying concern in any custody determination is the best interest of the child. Franklin v. Franklin, (1976) Ind.App., 349 N.E.2d 210. When initially determining the custodian of a child in a dissolution, IC 31-1-11.5-21(a) [Burns Code Ed., Supp.1979] requires the court make its determination “in accordance with the best interests of the child.” At that point, there is no presumption favoring either parent, the statute requiring certain factors to be considered by the trial court, all focusing on the child’s welfare.5 Once [611]*611the initial determination has been made pursuant to these guidelines, a petition seeking modification must establish a substantial and continuing change in the original conditions necessitating the modification. IC 31-1-11.5-22(d). Such strict showing promotes the stability of the child, therefore ensuring the child’s best interests will be paramount.

Because there is no evidence to support a finding that any changes continued to affect the children so as to make its original order unreasonable,6 we find the trial court abused its discretion in modifying its earlier custody order.

Computation of Delinquency

Specifically considering expenditures made by Husband, the trial court ordered Husband to transfer $450 to Wife in satisfaction of his delinquency. At the hearing Husband had affirmatively defended a delinquency of approximately $1350 by requesting the court reduce that amount by expenditures for clothing, toys, food, and entertainment which he directly furnished the children. He additionally requested credit for actual support furnished by him May through August, 1976 while the children were in his custody.

Wife contends the trial court’s allowance for Husband’s payments not conforming to the support order effected a retroactive modification of the order and was therefore contrary to law. Husband responds the trial court was merely acknowledging compliance with the purpose of the support order — to care and provide for the children.

As Husband indicates, an order for child support, established as part of a dissolution action, is intended to provide for the support and maintenance of the parties’ minor children. IC 31-1-11.5-12 [Burns Code Ed., Supp.1979]; In re Marriage of Honkomp, (1978) Ind.App., 381 N.E.2d 881, 882. In accordance with this duty the trial court frames its order establishing the obligated parent’s legal responsibility to support the children, retaining continuing jurisdiction to modify that responsibility when conditions require. Brokaw v. Brokaw, (1980) Ind.App., 398 N.E.2d 1385; See IC 31-1-11.5-17 [Burns Code Ed., Supp. 1979].7 All modifications to a support order, however, must operate prospectively. Jahn v. Jahn, (1979) Ind.App., 385 N.E.2d 488.

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Bluebook (online)
405 N.E.2d 608, 76 Ind. Dec. 607, 1980 Ind. App. LEXIS 1509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitman-v-whitman-indctapp-1980.