David G. DUNLAP, Respondent-Appellant, v. Leeanne Sue DUNLAP, Petitioner-Appellee.
No. 3-784A201
Court of Appeals of Indiana, Third District.
March 28, 1985
475 N.E.2d 723
Lyons’ final contention is that the Institutional Conduct Adjustment Board‘s administrative punishment for his attempted escape1 renders a subsequent criminal prosecution and conviction for the attempted escape violative of the Fifth Amendment prohibition against double jeopardy.
While this is an issue of first impression, several other jurisdictions have specifically dealt with this question. As was recently stated by the Supreme Court of Georgia, “This Court and various federal courts hаve repeatedly held that the criminal and administrative conviction and punishment of a defendant for the same act does not constitute double jeopardy.” Anderson v. State (1983), 250 Ga. 500, at 501, 300 S.E.2d 163, at 163. Also see, Flowers v. State (1983), 166 Ga. App. 740, 306 S.E.2d 16; Colbeth v. Civiletti (S.D.Ind.1980), 516 F.Supp. 73; United States v. Bryant (5th Cir.1977), 563 F.2d 1227, cert. denied (1978), 435 U.S. 972, 98 S.Ct. 1616, 56 L.Ed.2d 65; United States v. Hedges (10th Cir.1972), 458 F.2d 188. Lyons has failed to demonstrate any error in the result reached by these courts, nor can this Court find any.
The Board is authorized to administratively punish acts done within the prison walls by imposing disciplinary sanctions. The Board may not, however, lengthen a convict‘s term in the prison. The Board functions to insure peace and order inside the prison. On the other hand, the State is required to insure the safety and well-being of thosе outside the prison walls and has been authorized by statute to punish those who attempt an escape by extending the length of their term.
Therefore, the administrative punishment imposed by the Institutional Conduct Adjustment Board, and the subsequent criminal prosecution and conviction for the same act, is not double jeopardy.
The trial court is affirmed.
Affirmed.
STATON, P.J., and GARRARD, J., concur.
Howard G. Heckner, Heckner & Kirsch, Ligonier, for petitioner-appellee.
HOFFMAN, Judge.
David G. Dunlap aрpeals the order of modification entered in favor of appellee Leeanne S. Dunlap transferring to her the care and custody of the couple‘s minor daughter.
The evidеnce shows that at the time of dissolution, the parties entered into an
The evidence presented and findings of fact entered by the trial court indicate that Tobie is an outgoing, well-adjusted, six-year-old girl, functiоning at average or above average levels in school. Her mother is an exemplary member of the United States Navy and believes she may make the Navy her career. Leeanne receives an income sufficient to support Tobie and adequate housing will be available for their use in Hawaii. Both parties have had Tobie in their possession a substantial amоunt of time since the dissolution and both agree that the other has provided her with proper care.
The evidence shows that Tobie‘s relationship with her father is a secure and affeсtionate one. In its initial findings of fact, though, the court noted:
“2. The Respondent, while he has maintained a home for Tobie, is now living with a lady to whom he is engaged, but is not married. This living arrangement is in the presence of Tobie.”
The trial court concluded that Tobie should be placed in the custody of her mother with David to have visitation rights. Following the filing of David‘s motion to correct errors, the trial сourt specifically added to its initial findings of fact and conclusions of law, the following:
“That Finding Of Fact No. 2, set out the fact that the Respondent is living with a lady to whom he is engaged, but is not married, which living arrangement is in the presence of Tobie, and the Court further finds that living out of wedlock in the presence of Tobie is morally detrimental to said child and creates an atmosphere that is not in hеr best interests. The Court concludes that living out of wedlock in the presence of the child creates an immoral atmosphere that is so detrimental to this child‘s moral upbringing, that this fact, alonе, constitutes a changed circumstance so substantial and continuing as to make the existing custody order unreasonable[.]” (Emphasis added.)
David argues on appeal that the evidencе does not present a legal or factual basis for a modification of the initial custody order.
This Court acknowledges that determinations relating to child custody lie within the sound discretion of thе trial court. The decision of the trial court will be reversed only for an abuse of judicial discretion. Barnett v. Barnett (1983), Ind. App., 447 N.E.2d 1172. The decision must be clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable and actual deductions which may be drawn therefrom. Campbell v. Campbell (1979), 182 Ind.App. 661, 396 N.E.2d 142. The “best interests” of the child are of primary importance in an action to modify custody. In re Marriage of Davis (1982), Ind.App., 441 N.E.2d 719. Continuity of custody is a key element in determining what the best interests of the child may be. Neighley v. Neighley (1971), 256 Ind. 43, 266 N.E.2d 793.
In Indiana, a modification of child custody may be made only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable.
David does not deny that he is living with a woman to whom he is engaged but not married. He and his fiancee have maintained а clean, well-kept home and have provided a stable and reliable environment for his daughter. His fiancee and Tobie share an affectionate relationship. Tobie is fully aware of her father‘s living arrangement and all parties agree that Tobie has in no way been adversely affected by the relationship. The psychological testing of Tobie, requested by her mother, has shown Tobie to be an intellectually and emotionally well-adjusted child. Leeanne‘s primary complaint with the homelife provided by David is that the living arrangement he maintains might adversely affect Tobie in the future.
The trial court has concluded that the extramarital living arrangement maintained by David and his fiancee is in itself so detrimental and immoral as to justify a change in custody. Although this living arrangement may not be the optimum one, the evidence clearly shows Tobie has not been adversely affected by it. In order to deprive a parent of the custody of a child because of sexual misconduct, the misсonduct must be shown to have an adverse effect upon the welfare of the child. Although it is a factor to be considered, evidence of sexual misconduct alone is insufficient to deny a parent the custody of a child. D.H. v. J.H. (1981), Ind.App., 418 N.E.2d 286. Without some evidence thаt the living arrangement is in some way detrimental to the welfare of Tobie, a modification of custody, based solely upon that relationship, is improper.
In her argument, Leeanne additionаlly notes that Tobie does not attend church when residing with her father. It is clear, however, that Indiana specifically leaves the choice of religious training to the custodial parent.
The facts and issues presented in support of Leeanne‘s petition to modify custody do not show that the present custody arrangement is unreasonable nor that there are changed circumstances so substantial and continuing as to warrant a modification of the original custody order.
The order of the trial court is reversed and the сause remanded for consideration of appellant‘s petition for increased support.
Reversed and remanded.
STATON, P.J., concurs in result.
GARRARD, J., concurs with opinion.
GARRARD, Judge, concurring.
When parties litigate a matter in our courts they and we are constrained to the еvidence admitted. On appeal it is that evidence to which we must apply the law. Where that party bearing the burden of proof fails to sustain his or her contention, either because thеre was no evidence available on a critical issue, or because the evidence failed to sustain that party‘s contention, there is a failure of proof.
Upon the evidence presented in the case at bar, I am constrained to agree with the majority that no change in circumstances so substantial and continuing as to make the existing order unreasonable was established.
I therefore agree the judgment must be reversed.