Wilson v. Wilson

716 N.E.2d 486, 1999 Ind. App. LEXIS 1499, 1999 WL 732739
CourtIndiana Court of Appeals
DecidedSeptember 21, 1999
DocketNo. 79A02-9906-CV-414
StatusPublished
Cited by3 cases

This text of 716 N.E.2d 486 (Wilson v. Wilson) 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
Wilson v. Wilson, 716 N.E.2d 486, 1999 Ind. App. LEXIS 1499, 1999 WL 732739 (Ind. Ct. App. 1999).

Opinion

OPINION

DARDEN, Judge

STATEMENT OF THE CASE

Julie Wilson appeals the trial court’s order in her child custody and support modification action against Larry Wilson.

We affirm in part and reverse in part.

ISSUES

I. Whether the trial court erred in striking a provision from the parties’ property settlement agreement.

II. Whether the trial court erred in granting Larry’s request to provide work-related child care for the parties’ son.1

FACTS

Larry and Julie Wilson’s marriage was dissolved in 1993. The dissolution decree incorporated a property settlement agreement which included the following provision:

The Husband and Wife shall have joint legal custody of the minor child of the parties, to-wit: Wesley P. Wilson, born March 20, 1990, and the Wife shall have physical custody of said minor child and shall have the right to make the normal religious and medical decisions of a cus[488]*488todial parent and the Husband shall have the right of visitation.

Larry’s Brief, p. 2.2

Julie’s counsel explained that this provision was included in the agreement because Julie “had some hesitancy about joint custody, she was afraid that it wouldn’t work because she realized that there would be a religious dispute and in order to avoid that problem we included a provision which said that she was expressly to have the right to make normal religious and medical decisions of a custodial parent.”3 (R. 45).

On July 16, 1998, Julie filed a petition to modify child custody and support wherein she alleged that joint legal custody was no longer working between the parties and was no longer in Wesley’s best interests because of conflicts that had arisen between Julie and Larry regarding religion and medical care. She also asked the court to increase Larry’s child support payments.

At the hearing on the petition, the parties’ counsels summarized the parties’ respective cases. Specifically, as to the child custody issues (religious and medical), Julie’s counsel explained that Larry has been taking Wesley to Jehovah’s Witnesses meetings and on door to door solicitations. Julie does not want Wesley participating in Jehovah’s Witnesses activities. Her counsel explained as follows:

My client, I think would testify, that she is not comfortable with the child going to Jehovah’s Witnesses meetings for a number of reasons. She feels that Jehovah’s Witnesses is a kind of cult, that it does not encourage tolerance of people, that the child comes home very critical of her and many other people when he has been with his father and has gone to these meetings and that it is having a negative effect on the child.... The child comes home saying things like, church is bad, and when mother tries to tell him that’s not appropriate, that church is not a bad thing, he argues and appears to be very confused about these things.... The former wife would testify that since ... [Wesley has] been attending the Jehovah’s Witnesses meetings that she observes him in ... increased conflict and confusion and distress.

(R. 45-46, 49).

When Julie expressed her concerns to Larry, reminded him about the provision in their settlement agreement and asked him not to take their son to Jehovah’s Witnesses meetings, Larry responded that the provision “didn’t mean anything.” (R. 45). Julie’s counsel explained to the court that if Larry “would respect that provision in the decree, probably joint custody would be all right.” (R. 47). Julie’s counsel further explained that Julie was concerned when Wesley needed a tonsillectomy, and Larry attempted to tell the doctor that he would not consent to a blood transfusion because of his religious beliefs.

Larry’s counsel responded that a “more likely source of [Wesley’s] distress and source of conflict would be the fact that he’s having some problems in school.” (R.51). The Guardian Ad Litem recommended no change in Wesley’s custody. She also recommended that the court permit Larry to take Wesley to religious meetings when they occur during Wesley’s visitation. She acknowledged that her recommendation did not “speak to the law of the settlement agreement or the law of a custodial parent’s rights.” (R. 54).

As to child support, Julie’s counsel explained that Larry currently pays $50.00 per week in child support. She asked the court to increase the support to $76.41 per week pursuant to the child support guide[489]*489lines. Counsel further explained that Julie pays $65.00 per week for Wesley’s work-related child care. Larry’s counsel asked the court to permit Larry, who is on disability, to provide Wesley’s work-related child care. Julie responded that it was not appropriate for Larry to provide child care because he has had heart surgery and “may not have the stamina to keep up with [Wesley].” (R. 44). Larry explained that the surgery took place more than 10 years ago and that his health has been very stable. He recently helped construct the new Jehovah’s Witnesses Kingdom Hall.

As to child custody, the trial court issued an order which provides in pertinent part as follows:

That portion of the decree relative to religious preference is stricken from the settlement agreement. The mother shall continue to make decisions with regard to medical treatment for the minor child.
The father is entitled to attend religious services with the child during his visitation period....
In all other respects the Settlement Agreement and custody remain the same. Wesley shall remain in the joint custody of the parties.

(R. 33-34). According to the trial court, active involvement “in some religion is generally better than none.” (R. 57).

As to child support, pursuant to the Tippecanoe County Visitation and Access Guidelines, the trial court granted Larry’s request to provide Wesley’s work-related child care. The court also denied Julie’s request to modify Larry’s child support payments. The court explained its decision as follows to Julie:

[I]f I re-calculate the support based on the same income figures that you used, but take out the sixty-five dollars ... we don’t end up with a change which would justify modification of support from fifty dollars a week. We don’t have a change — big enough change to modify it, so it’ll have to stay at fifty dollars a week, but you don’t have to pay the sixty-five either. So, in that way, you get in some respects more of a financial break than you came in here asking for.

(R. 60).

DECISION

I. Religious Meetings

Julie first argues that the trial court erred in “striking the provision in the parties’ property settlement agreement pertaining to religious decisions.” Julie’s Brief, p. 1. We agree.

Ind.Code § 31-15-2-17 provides in pertinent part as follows:

(a) To promote the amicable settlements of disputes that have arisen or may arise between the parties to marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for: ...

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

Related

Judith (Lund) Pherson v. Michael Lund
997 N.E.2d 367 (Indiana Court of Appeals, 2013)
Dewbrew v. Dewbrew
849 N.E.2d 636 (Indiana Court of Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
716 N.E.2d 486, 1999 Ind. App. LEXIS 1499, 1999 WL 732739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-indctapp-1999.