*1 the trial unpersuaded we remain (Now Middy ELBERT, The trial its discretion. court abused Mildred True), Appellant, the California of aware became court filed his after William proceedings v. of any determination prior petition but ELBERT, Appellee. jurisdiction. its nia cise After court, u jurisdiction. communicating with the trial [*] [*] court declined provisions the Califor- [*] to exer- # Court No. 31A04-8910-CV-444. Fourth Appeals District. Indiana, to communi- court a trial allow TUCCJA Sept. 1991. state of another a court cate with prior to determin- exchange information jurisdic- or decline to retain
ing whether 81-1-11.6-7(d). The UCCJA
tion. IC deter- trial court if the provides that
also forum, inconvenient it is an
mines that stay the may dismiss court the trial 31-1-11.6-7(e) There IC
proceedings. trial court for the ample reasons more was the California
determine 58- N.E.2d at forum."
appropriate other than truly no different
Our case trial appellate review involving
cases It is well-established discretion.
court reversing such deci precluded
arewe manifest there has been unless
sions context of In the discretion. of that
abuse accu 81-1-11.6-7, proposition
1.C. (1986) Dennis rately Dennis stated 234, 235:
N.D., 387 N.W.2d the decision settled
"It is well jurisdiction to exercise to decline en- grounds lies forum on inconvenient discretion, trial court's
tirely within ap- reversed will be its decision (Ci- of discretion. an abuse only for peal discretion, omitted.) An abuse
tations unreasonable, arbitrary, implies an part of on the attitude
or unconscionable court, is assumed never trial affirmatively established."
must be Supreme Dakota North light, the
In this of its decision affirmed
Court custody juris- declining to exercise We deferring Iowa.
diction similarly. rule
should
MILLER, Judge. denial of appeals the Middy True
Mother son, her custody of gain petition the time (eight years old at *3 Stephen Elbert father hearing), from years for seven child had lived whom the trial claims divorcee. She since the it refused its discretion when abused court relied on custody improperly change to custody. She deny her to religious factors its discretion court abused claims the also support and to ordering pay to in transporta- for all costs responsible with Jason. for her visitations tion attorney's appellate requests Stephen pursuing fees, Middy is claiming that harassment, purposes of for appeal ap- on pending this case was that while allegedly trial court was peal-and any action-she to take jurisdiction without the trial order from ex-parte obtained responsibility relieving her of the the child. transportation for expenses outset, make clear want to At deci- affirming the trial court's that we are change of because deny a sion present evidence Middy failed to change continuing a substantial been detrimen- home which was in custodial However, there is way. in tal to Jason judge that the Middy's claim merit 1) interrogat- authority overstepped his regard Middy and her husband ing order, and, 2) in his church attendance their requirements his by expressing Middy present- parent. Had for a suffi- on her behalf evidence substantial ed to exercise permit cient custody-which she discretion faced with been might have not do-we did tainted, a requiring judgment that was Stephen find that also new trial. We attorney's appellate the issue of waived harassment-by the basis fees-on in accord- the record supplement failure to rules. appellate our ance with AND DECISION DISCUSSION ap- Jr., Albany, for New Garry, R. John married Stephen Elbert Middy and pellant. July 21, 1976, on and divorced August year-old Cotner, Al- their one Fox, New Fox & R. Richard pursu- Jason, son, was awarded appellee. bany, for transpor for the responsible ing her to be May, In agreement. settlement to a ant However, modify for visitations. petition tation of Jason Middy filed contingency provision included the order expanded visi- custody or to obtain decree pregnant, she [Middy] "if shall become custody was request Her rights. tation motion ex-porte file an is allowed expanded. rights were denied, visitation [Stephen] to be requiring an order obtain married Vance September In if her transportation said responsible for Danville, Kentucky. True, chiropractor cannot drive that she determines doctor divorce, Stephen continued After the 42). (R. long distances1. Indiana, where he had Corydon, reside discre- abuse its trial court I. Did the approxi- Corydon is his life. lived all denying tion in modification? *4 At the from Danville: 110 miles mately appeal in an recognizes hearing, in an older lived of the time will custody, remodeled. this court modify he had Corydon in which refusal to home a deci- the trial court's away from the four houses reverse where only house is effect logic and good clearly against a has parents. his Jason sion is home The non- cireumstances. many activities facts and enjoys of the relationship and of a the burden Corydon parent bears parents. The Stephen's with custody present showing" that the including a "strict play area has an acre home v. Moutaw is unreasonable. goal arrangement and and a basketball diamond baseball 1294; neighbor- in the 420 N.E.2d Ind.App., of friends has lots Jason Moutaw 31-1-11.5-22(d). she claims appeal, On in the area who IC relatives Middy has hood. clearly against the court's decision up for visits. pick Jason occasion on in that: presented logic of the evidence divorce, had al- Stephen, who Since Jason, 1) but parents wanted both construction, started ways worked his mother. live with wanted Jason has a Jason and remarried. business own with he had talked The court stated wife, Stephen's relationship with good to live with he wanted and that Jason (11 years daughter a Rhonda has Rhonda. mother. mar- hearing) from a former time of old at kept informed of 2) not been She had baby, had a and Steven riage and Rhonda that she well-being and and life Jason's hearing). (age at the time four Shane opportunity of an deprived had been Shane; how- with shared bedroom Jason relationship with her develop parental new house ever, planned to build Stephen son. child. for each separate room awith relationship with her 8) interferes Steven modify on June petition to Middy filed a her attempts to discredit and with Jason in "her circum change 26, 1989, on a based of him. in front provide her to allow "would stances" which spend with Ja- 4) has more time for Jason: home secure and a more stable home, at the time son, and was nice has a financially." and emotionally, physically, "building process hearing held on Brief, A trial was p. 6. Appellant's golf to a adjacent nicer one" even petition and on her August courts. and tennis course, pool awith sup requesting counter-petition Stephen's financially secure 5) Her husband "no rea there was found The court port. if any support she not ask she would 41). (R. How custody." change son custody. granted support order ever, modified the court with is vested twenty- The trial paying begin Middy to requiring determinations. discretion support for Jason broad per week five dollars changes in Ja (because of While rights may have been her visitation modified custody order original Jason) life since by ex son's lives from distance auto- do not entered, changes these requir was periods her visitation panding following childbirth. period provision short contingency presume this 1. We pregnancy for a during effect be in long custody. The record indicates works change in justify a matically (1990), Ind.App., 553 however, business; v. in his there was Walker hours Chatfield initial determi that Jason has been affected in At the no evidence N.E.2d 490. nation, presumes that both way. Stephen trial court admitted that a detrimental custody, equally parents spend are entitled not have as much time to he did the bet parent would be determines which like due to the demands as he would subsequent petition to Id. In a hand, ter choice. the other Ste- of his business-on custody, noncustodial modify managed soccer phen had to coach Jason's overcoming the custo the burden of bears minutes). (quality Be- teams baseball custody. right to continued parent's dial quit her hearing, Stephen's wife fore the key element Continuity is a Id. handling the job to work full-time at home determining is in the interests what best bookkeeping and other matters for Ste- child, Dunlap Dunlap of a business, that she will phen's means 723, and, only a strict App., 475 N.E.2d the children. The at home to care for present arrangement showing that the grades did record also reflects that Jason's justify in custo unreasonable will princi- during grade, but the fall fourth disruptive potentially dy because of pal school testified that this was at Jason's *5 Walker, supra; upon the child. influence the teachers a common occurrence because (1985), Ind.App., 476 Gerber v. Gerber system begin- imposed grading a stricter court, appellate we do N.E.2d 531. As an grade. principal ning in the fourth judge credibility of weigh not evidence nor well-adjust- testified that Jason was a also witnesses, v. Barnett Barnett ed, Stephen outgoing, happy child. testi- 1172, and, determining in App., 447 N.E.2d it is to raise three chil- fied that difficult its discre the trial court abused marriages, but that he dren from different tion, consider the evidence which try equally each child and Rhonda to treat trial decision. Smith supports the court's have a close and that both he and Rhonda (1982), Ind.App., 431 N.E.2d v. Dawson Stephen also testi- relationship with Jason. like to live fied that he felt Jason would Middy, petitioning party, as the had "things" of the with his mother because proving that material the burden of Middy provide-a bedroom with can decisive, significant, and on changes of a telephone and television which his own change of custo going nature warranted a another child. have to share with doesn't modify, she claimed: dy. petition In her to Although testimony indicates that there 1) chiropractor and moved married a in com- have been occasional breakdowns Danville, Kentucky, over two hours
to
visitation,
regarding
there is no
munication
difficult;
making visitation
away,
Middy's allegation support
to
evidence
deliberately
interferes with her
Stephen
work,
2)
requiring
Stephen
and his wife
Jason,
fact,
does not
day
care for
but she
had
rights.
In
en-
visitation
full-time;
development
of Jason's rela-
couraged the
and can care for Jason
work
permitting Mid-
tionship
his mother
8)
regard
in
with
Stephen acts in bad faith
periods
not re-
dy additional
of visitation
visitation;
Thus,
there was
quired
the court order.
4)
his
must share a bedroom with
Jason
any
support
a total lack of evidence to
step-brother
four-year old
whereas
Stephen's
home or
changes
detrimental
own;
him
a room of his
provide
can
with
relationship
Jason.
5)
grades
fallen.
Jason's
a basis for
claims as
also
claim,
our
regard
Middy's
first
With
better,
a move
the non-
position is now
have held that
courts
that her financial
child,
makes visitation in-
parent which
he wants to be
custodial
and
she wants
consistently held
This court has
warrant a with her.
is not sufficient to
convenient
Moutaw,
changes in the status of the noncusto-
citing
custody.
supra,
change in
81,
257 Ind.
Partridge
v.
the case here-are
not
Partridge
parent-as
dial
modify custody.
sufficient
plained grading thus, and, comments are difficult task most hearing child is in the course of accept explanation. made proba- say if he had time might that he care getting the financial careful his words more and choose reflect that he uh, financial contribution bly, *8 home; judge's com fact, addressing the by that's In ly. get in the mother's the risk court runs religion, this ments on say I also true, have to I will but impermissi- trap of falling into the same of changing can't, I don't believe on monetary considerations. opinions or views solely bly expressing our based on an initial hear If had been religion.3 basis, child were if the If that was the church ser respondent had attended impor or not emphasis on the judge placed an 3. This days. Response: past seven vices within religious "formalizing" beliefs one's tance of adults; teenagers). of cf. 57% 43% of a If that were through church attendance. decisions, Gallup Organization many Surveys indi conducted proper factor in indi- Religion Center Research losing or Princeton danger for the of would be in viduals be- 1989, majority" Americans of that the "vast of cate custody. 58.7% being In denied of good Christian or Jew possible be a belonged it is lieve population United States of the synagogue. The going church or church, religions-Protestant, without including any all "decou- Moslem, toward a Buddhist, surveys a trend Catholic, Jewish, also reveal and others. "privatiza- practice and a Almanac, (1990), pling" of belief Facts Book World The 1991 of impact is major of this trend of faith. One tion" smaller An even Books, percent 610. Pharos p. religiously Id., growth unaffiliated Gallup citing regularly. a age church attend unchurched, people who includes 1, (Question: January whether poll 1990 taken 110 parents presumed are to be
ing, where both decision, the Board's court's reversal of custody, might find quit voluntarily we held that Thomas had for equally entitled to and comments so judge's questions and, therefore, personal reasons did merit reversal. prejudicial as to qualify reversing, for In the Su benefits. supreme preme Court observed that our that a Supreme reminded us Court given significant weight court had to the receipt of an may state not condition fact that another Jehovah's Witness found important upon proscribed conduct benefit 'scripturally' accept work on tank turrets religious "thereby faith or mandated Supreme made able. Court the follow pressure on an adher putting substantial ing applicable observations which are here ...;" neither modify ent to his behavior parents both are Catholic but where judicial system should our be used to ex practice different ideas on how to their skepticism of an individual's press beliefs preference a certain manner faith: or religious practiced. is which a differences are not un- ... belief "Intrafaith Employ Board Ind. Thomas v. Review among particular common followers 707, Div. 450 U.S. at 717- ment See. creed, judicial process singu- and the 1425, 1481-1482, at 101 S.Ct. larly equipped such differ- ill to resolve Township v. L.Ed.2d 624. See also Center Religion ences relation to the Claus- (re (1991), Ind.App., N.E.2d 1850 Coe guarantee es.... of free exercise [The quiring attendance at church services to are is not limited to beliefs which shared statutory receive a benefit-shelter-vio religious all of the of a sect. members lates freedom to believe as individual area, Particularly in this sensitive chooses). Thomas, Witness, a Jehovah's judicial not within the function unemployment was denied benefits when inquire judicial competence to quit job foundry at a because petitioner or his worker fellow assigned work he was was related to the correctly perceived the commands more production weapons. He asserted that their common Courts are not faith. participate activity in such he could not scriptural interpretation." arbiters of violating principles reli without of his 715-716, 101 Id. 450 U.S. at S.Ct. at 1480- co-worker, gion. A who was also Jeho added). (emphasis Witness, working him vah's advised Here, judge expressed preference parts "unscriptural," weapon was not but religious through practicing beliefs agree Thomas was not able to with his judge church attendance.4 The made his interpretation. The friend's Indiana Su known, attorneys and standards beliefs Court, preme overturning appellate go hearing (highlighted membership, rarely at the end of the claim church if ever comments above, 13-14) gratuitous Gallup, Looking slip op. expres- to church. Ahead to the Year were a Religion Report, opinion of his of how a should in America-1990 sion p. provide 8. education for their children. Amendment, The First as well as our own con- concurring judges disagree with this The two stitution, entanglements prohibits with matters opinion went too far in author's that the hence, relating religion; may the state questioning and her husband any religion, require promote nor church mem- religious practices. Judge See Bak- about their attendance, bership regularity of church nor earlier, concurring opinion. er's As noted require religious training faith. The Appendix at the end of the *9 have included an designat- prohibits Constitution also states from questioning by the decision which contains the ing-either before or after determina- judge. tions-any religion or the manner in which reli- Here, gious practiced. is the trial doctrine concurring judges judge's view the trial The judge-representing religious the state-set response comments as a natural invited Mid- guidelines. my judge opinion, In even if the dy's introduction of the issue of the child's reli- very stated that church attendance was not im- training. response gious for It is a reasonable necessary portant or that it was not to formalize judge question how he could believe that the to manner, any particular religious one's faith in Middy the and her husband would continue impermissi- religious granted the comments would have still been if she were child's education unnecessary entanglement ble-an of the state she hadn't taken him to church in when But, writer, opinion religious past. his in matters. the in the of this
111
judge's
involved
a
intangibles are
Many
their
may fashion
his court
practice in
who
parent over the
to favor one
determination
alter their
clients to
their
and advise
cases
case-knowledge of
close
and-in a
other
representation
their
religious practices-or
could be
personal standards
judge's
the
to this
conform
practices-to
their
of
prefer
parent
the
sway
judge
the
to
to
used
raising children
guidelines
judge's
representation
practices-or
whose
Furthermore, having ex
religion.5
their
judge's guide
the
practices-mirrors
those
up
religious
on the
guidelines
his
pressed
lines.
children,
as
may-just
bringing of
public
case,
record
However,
makes a
al
present
who
judge
other
in the
challenge to
the
invited
these comments
opinions-have
though some of the
his
custody pro
with the
in a
in cornection
judge
to serve
trial
qualifications
unfortunate,
we can
may
or a modifica
(either the initial one
award
ceeding
where
realistically
of discretion
for an abuse
parties
reverse
tion)
where one
is
parent's beliefs
custody determination
the
that
trial court's
perceives
other
the
erroncous conclusion
on an
guidelines. based
judge's
nearly fit
the
more
5. See
judge:
Garry
husband, Vance,
religious aspect of
"Quite
to church on
that
this,
turn
were with him?"
Questions to Vance
important
church on
"We
portance
that this
day
proper
discussions
"I
Comments
press his
father's
explained
(R.
and he
determine
begun
church
should
parents
action
chism
dered
After
This case
guess,
the custodial
may
112-115).
I didn't
may
and
the initial interview
on whether
is no chance
Appendix and note the
father
(Middy's attorney)
frankly,
classes
interfered with
have
emphasis
be maintained.
was
Ind.App.,
these comments
wishes.
La
Judge
[*]
were
important
have
young
gets
Judge,
have
rightfully
opinion that formal
it
Sunday,
to the
with them
merely
important
this,
give
is unlike
to take his
is and the
Sunday
religious upbringing of the
Catholic
#
[*]
perhaps
the child's
perhaps,
despite
was
we
man
training
I've been
religious
Nevertheless,
and
father,
that I
having
but now
it
it,
is there that
or not
going
didn't
would
so,
attempting
maybe
[*]
#
but if
gets
him,
Garry's
all
maybe
N.E.2d
father's
underestimated
and
as
and the
should have
Overman
in a
who had
of the times
son to
religious
to
to church
a little remiss
talk
desire that
schooling?"
your
you
directed
but it was
#
you
[*]
I,
that we know
week-end visitation
once the child
that
I've mentioned
take an interest
particular
if
I
comments
much about
made,
didn't
claim
you
have taken
you
questions
attorney,
training
took
live with
proper,
trial court
Saturday
this
La
#
carry
judge did ex-
training
v. Overman
will
where
had
to
every
given."
give
important
case
that such
Jason to
you and
that
Middy's
right
[*]
the im-
La
faith,
not see
out the
known
in that
to the
in the
child,
it
John
Sun-
cate-
both
may
how
you,
him
you
was
the
my
or-
I,
rights.
ther's visitation
slight
dial
noncustodial
whether the
attempting
sion
used
training,
was an
of this
promises
granted
rights. Unlike
Ind.App., 540
See also In
inquiry
humiliated
questioning
Child
(1984),
"Other
gious
recognized
rel. McGrath
sponse to coercive
awarding
as a Catholic.
was,
involved
the
neighborhood,
claimed
(N.Y.Sup.Ct.1946),
tion'
pressed
there,
In the
had
cism."
change the child's
by pointing out
it to
N.Y.S.2d
religion
mother,
Custody
played a
the court
mother]
writer,
more or
n. 61
This court
into
behavior
up
custody.
midst of the
interference
insignificant
and
that
60 N.Y.S.2d
courts
deny Middy
he would
to balance
parents
and intimidated
judge
custody.
to
parent
began
re
belief that
at
they
that
into which
N.E.2d 641. The
Overman,
Vance and
Disputes, Mich.LRev.
her own
determine the
846
part
rights-and
Marriage
1720-1721;
less
entered
and commentators
Lutheran,
or at
expressed
When
Gimler,
upheld
See
people
would
who
judge
the
the Catholic
with the
in
aff'd
raise the
taking
religious
hurriedly,
the visitation
custody hearing 'the child
For
that
interference with
receive
custody.
at 627.
class
e.g.
pressure
the mother's
want
had
least lie about
the mother's
in the
went
she
alter their behavior
82
religion.
example, in
the trial
60 N.Y.S.2d
mem., 270 A.D.
will alter
the
Note, Religion
began
Middy's visitations
the child to
baptized their child
therefore
them
parents
the child
attendance was
right
had been
judge's continued
religious
Davidson
religious instruc-
focus
child a Catholic.
child's
parochial school
farther
introduced
In the
custody battle
pastor
issue here
on this
of the custo
into
rights of the
court's deci
decision to
judge was
knowledge
to Catholi-
their
the court
separated,
judge ex-
bring
People
justified.
religious
raised in
bias and
*10
baptized
than an
it in re-
opinion
making
church
(1989),
the fa
in the
father
issue
1702
also
reli-
627
[by
ex
if
Saunders,
being
Middy
supra, as
facts and
cites
logic
and the
clearly against
case,
In that
similar to her circumstances.
the court. Williams
circumstances before
the trial court abused its
this court found
(1981), Ind.App., 422 N.E.2d
Trowbridge
v.
judge made it clear
ordering
pay
mother
note that the
331. We
discretion
and,
effect, only
income
support
per
reason for
of
week when her
primary
$60
However,
per week.
was
change
$60
$90
was no
there
his decision was
clearly
distin-
the situation
Sounders
or care of
in the custodial home
Here,
present case.
guishable from the
warranted a modification.
custody
requesting
Middy came to court
not shown the
summary,
In
has
posi-
in a better financial
because she was
or a new
be-
necessity for a reversal
Although there
provide
tion to
for Jason.
prov-
of
meet her burden
cause she did not
testimony
the amount of
no
as to
was
necessary
was
change of
ing that a
husband,
as
she claimed
income of her new
Nevertheless,
for
welfare.
Jason's
1)
change
custody that
she
a basis for a
right to
authority or
advise
no
home; 2)
would
had a new
Jason
practice
their reli-
parents on how
these
own; 8)
provided name-
room of his
she
First,
personal standards
gious beliefs.
him;
4)
clothing for
she would
brand
second,
and,
are not relevant
if
request support
not
is for the custodial
training of children
In other
granted
of Jason.
not the state.
See
parent to determine
words,
financially
she was
she claimed that
81-1-11.5-21(b), Dunlop, supra.
IC
Stephen.
better off than
Support
II.
support
of
re
A modification
court
Middy next
claims
showing
changed circum
quires a
modifying support
its discretion
abused
stances,
required
to consid
but the court
twenty-
by ordering
pay
her to
payments
in
totality
of the cireumstances
er
no
per
dollars
week when
five
whether modifi
volved in order to ascertain
showing
changed circumstances so sub
obligation is
support
of child
war
cation
continuing to
warrant
stantial
(1990),
Billings
v.
Billings
ranted.
support
in the
order. The dissolu
553. We first observe
App., 560 N.E.2d
28, 1980, (when
July
tion decree
every parent
duty
support
has a
old)
year
provided that
was one
(1986),
Wagner
Wagner
child.
his/her
pay
responsibility for the
have no
Many factors
Ind.App.,
113 to become provision in case she were cy Stephen had also observe We relieving responsibility her of pregnant, for the supporting of the burden trial, it she claimed transportation. At for any life without eight years of first responsible her to be hardship for was a court or Middy and the from contribution it a 110 transportation is because amount for all pay a minimal her to dered twisting roads. mile, over hour drive two can Changed cireumstances support. which years of the number from found arrangements claims the appeal, On she original order was passed since undue hard- cause her oppressive and are more to it costs the fact that entered claims, in allo- also expense. ship years eight maturing child of support her, transportation of cating all the costs v. an infant. Crowe support it does to than preju- her with bias and treated the court 164; 51, 211 N.E.2d (1965),247 Ind. Crowe out-of- chose to move she dice because 397, Ind., 573 N.E.2d v. Vore Vore v. Mikels She cites Mikels state. (1990), Ind.App., Vore Vore affirming 585, 20 and Pea v. Pea 228 N.E.2d 248 Ind. change in An additional 110, N.E.2d 154. 563 (1986), Ind.App., 498 N.E.2d Middy now claims is that circumstance out-of- parent's move a custodial held that provide Jason financially able to is of for a per se a basis state is not pro- things in life. these same argues that custody. She the better to a noncusto- be extended tections should Mid- order for find the court's cannot We visitation; how- regards parent dial logic support against pay dy to which hold ever, cite cases she does not clearly It circumstances. effect of the discretion when its that a court abuses hear court did not While the otherwise. transpor- responsibility assigns all the Stephen's Middy's or of specific evidence parent. noncustodial tation to the needs or the child's situation economic required not in- which, course, that he was court indicated is the best instances, fixed a the court transportation in most ar- practice change the clined to per twenty-five dollars payment minimal Stephen had two other rangement because whereas, 7. In the interests job; footnote week. See and had a children time, sup- and, no affirm the court's economy, employed at judicial was has relatives Middy also children. port order. other when she could visit Corydon that she arrangements Transportation IV. whereas, no Stephen has trip; makes Danville, Ken moved to Middy had find that cannot We relatives in Danville. Indiana, where Ste Corydon, tucky from is unreasonable decision trial court's the trial court contends lives. She phen circum- on the based of discretion an abuse modify refusing its discretion abused stances. re arrangements which transportation Ex-parte order V. responsi the costs her to bear quired Middy improperly contends that Stephen for visita of Jason transportation bility for the trial ex-parte order an contingen- obtained also included The order tions. Proceedings was filed The Record ever, case in 8. in this are useful the Guidelines 20, appellant's brief 1989. support on December estab- determining child 13, filed on March 1990. was filed illogical or unreason- was the court lished in which he Appellee's Brief with his affidavit specific amount of child example, a For able. 1990, 10, Middy filed an April Supp. represents that on always be Child support ordered. should Modifying Order Ex-parte Application to Amend if a must be determined income 2. Potential G. alleges He further court. the trial Supp. Decree with G. 3. One Child no income. has order, ex-parte she did 1) petition for fairly in her allocate potential income is to purpose of 2) appeal and was on that the case not disclose parent remar- obligation one support when was executed the Decree to Amend and, the Order of the new the income ries because April Henry Judge, Special Leist employed. Child to be spouse, chooses not file a motion he was forced He claims guidelines do not Commentary. The Supp. G. hearing to be and a in the trial court vacate obligation, for cou- support minimum set a forced thus, he was weekly $100 or and, income of June held on ples with combined appeal simultaneously in both defend support less, suggested amount for Supp. 2. G. Child $25-50. court. the trial appellate court and *12 114 harassment, attorney is unable to if the arrange transportation changing court argument good faith and rational make perfected. He appeal was ments after action, resulting lawyer or if the fees for the the merits of the attorney's on
requests prose appeal support this the action taken necessity to defend is unable to ex-porte argument to set aside rational for an good cute an action faith and Stephen argues in the trial court. order modification, extension, or of ex reversal inappropriate in Middy's actions were (1991), isting law. Brant v. Hester 748, filed, citing Kahn v. Cun App., 569 N.E.2d has been appeal an that once from the trial 627, removed Ind., entire cause is (1989), adopting N.E.2d 543 diff 83, 164; (1977), 267 Ind. (1989), Ind.App., N.E.2d IC 34-1- Logal v. 533 court. Cruse 943, 435 U.S. N.E.2d cert. denied 368 82-1. (1978) L.Ed.2d 539 55 98 S.Ct. court, we affirm the trial While (1972), Ind. 289 259 Bright v. State good appeal asserted rational Middy's 128; Chapman Chapman v. N.E.2d only indication arguments. faith see, Wag 414. But Ind.App., N.E.2d 512 Stephen's affidavit is found harassment ner, (issue separate and distinct supra, Appellee's court with his to this submitted case, attor appeal-in this from issue on Middy told he claimed Brief which court of deprive trial ney's fees-does keep going money back him she had v. Scheetz jurisdiction); accord Scheetz he was broke and then to court until he 840, reh'g de (1987), Ind.App., 509 N.E.2d relinquish custody. This have to (1988). N.E.2d 919 Ind.App., 522 nied at trial and no evidence not an issue was error, if Stephen has waived on this presented to the trial court was preserve the properly any, by failure to court, reviewing we do not matter. As a 1) he did not appeal because: error judge credibility. weigh Wat evidence if court stated that object trial when the at (1990), Ind.App., 559 son v. Thibodeau could obtain pregnant she became Therefore, we cannot deter N.E.2d 1205. provided if she ex-parte order any truth to his mine whether there is statement, v. Maren Jones with a doctor's brought appeal this allegations that (1988),Ind.App., 526 N.E.2d Bank go State purposes of harassment. only for 709; 2) not raise cross-error he did appellate deny Stephen's request for We contingency regard to the appeal with this of a frivolous attorney's fees on the basis transporta in the court's provision included However, when this is returned appeal. 59(G); order, Haycraft Ind. Trial Rule tion trial continuing jurisdiction of the 211, 375 Ind.App. 176 Haycraft v. court, petition the trial Stephen is free to 252; 3) he did not follow N.E.2d discretion to award court to exercise its supplementing the procedure for proper appeal. attorney's fees in defense Appellate Rule required by Ind. as record 81-1-11.5-16(a) Sovern Sovern IC and, thus, Middy actually ob 7.2 (1989), Ind.App., N.E.2d 563. properly before such an order is tained court is af- of the trial judgment v. Insurance Co. this court. Dean firmed. (1983), Ind.App., 453 America North N.E.2d 1187.
CHEZEM, J. concurs result. attorney's Appellate VI fees BAKER, and files concurs result J. brought asserts that CHEZEM, J., opinion which separate of harassment purposes appeal joins. attorney's fees for requests he pro- BAKER, Justice, concurring that the custodial in result. the basis appeal on frivolous as to were so ceedings themselves digspo- Judge Miller's I concur with While harassment. amount may appeal, I believe of this sition in his criticism of the gone if too far "frivolous" defense is A claim or judge. purpose primarily for taken it is rather, Miller, important, but Middy thought it was by Judge recognized
As important Stephen, appeared to be showing prima to meet her burden failed *13 judge simply parent. The trial and con- custodial that a substantial facie evidence Middy her change inquiring of was as to whether change tinuing necessitated church, really take Jason to not entitled to husband custody, and thus she is they as parent wanted and Additionally, she as the custodial new trial. reversal or a do, past they in the they would when question- court's said object not to the trial did in the context husband, done so. This was improperly had not ing her her visitation, Middy's request for increased appeal. of the first time on raises the issue for appropriateness of notes, Middy not a discussion on the Judge Miller further As religious her beliefs. concerning the considera- waived error religious training of the tion of the judges have Judge recognizes Miller trial inviting error. cases, in these and I difficult task a most made the comments hand, hesitate to criticize Judge matter at Turning to the the comments are judge here when Chezem, Miller, agree that Judge and I all totality. religious in their guidelines state viewed there are no guidelines would upbringing, and that such I in the result. concur My inappropriate and unconstitutional. in his Judge Miller lies
disagreement with APPENDIX was, essence, judge assertion the trial that, in modifica- acknowledged inquiries guidelines in his laying out such request- Stephen had hearing in tion upbringing. into Jason's to church when ed that she take Jason admitted that she had visitations. custody, Middy In addition to exchange following so. Then the not done expansion of alternatively sought an visita judge: Middy and the place between took of, and assent rights. tion She was aware you him Have ever taken to, request THE COURT: Stephen's earlier ed church? he was church on the week-ends attend her, improper and this was not with Yes, I A. have. parent. request part on the of the many Sundays? How THE COURT: (1986), App., Overman Overman See A. I don't know. The trial N.E.2d trans. denied. you think Why would THE COURT: simply questioning about judge was you taken I haven't then that would-if request, past compliance with you requested I him to church and fu gauge the likelihood of attempting to religious education with this continue her desire to light compliance ture him you by taking he when Un with Jason. increased visitation makes haven't-what you church interpretation of and its der Overman only maybe done it once you-you've $3$1-1-11.5-21(b),this line of IND.CODE that I you makes believe twice-what context of a proper in the questioning was him to you would take could believe expanded visitation. request for going now and you're not church when Why, why going? you have been never in this case judge's comments The trial I think that would believe you do displeasure over expressions of not Why him to church? take you would child, religious upbringing Middy's And what doing that? you been haven't Middy and suggestions that and were give you me that are you can assurance or did good Catholies were not her husband did to Paul change like Saul going The trial religious beliefs. have sincere All lightring? overnight a bolt of in his be raised Jason should judge stated churchgoer going to be a you're once at being raised religion if he was used goer a church you haven't been when responded to an religion. before? judge found that the attorney's comment stating he churchgoer Yes, important I have been attendance A. church impression that he give the did not want church on go he
THE Does COURT: Sunday? was the last-what When THE COURT: Every Sunday, no. A. to now? belong religion you do go often does THE How COURT: goI to a Catho- church go A. I When church? lic church. I do. regularly than A. No more go to a you did last When THE COURT: and East- Like Christmas THE COURT: church? Catholic er? know. A. I don't *14 Easter, holidays of Christmas, A. Okay. ahead. Go THE COURT: in times I there's other mean course. (R. 78-80). but .. between examination during the re-direct Later questions. No further THE COURT: involved again became Middy, the court 102-104). (R. Middy: questioning Middy's During the direct examination you ques- this Let me ask THE COURT: husband, Vance, Middy's counsel asked impression from general get I tion. him: that at least to asked questions Q. regard to-there's some Now in the rais- estimation in the father's father Are you being Catholic? question about religion that ing boy whatever you Catholic? par- in-and in this being raised he was per- Yes, I am not I am Catholic. A. the Cath- appears it ticular instance I wish I got a lot of flaws and fect. I've important. You've religion-is olic change a few of could backtrack summer, this for three weeks the child them, a doubt say I can this without but or four Three weeks correct? us with Jason that if blesses [the Court] this summer? weeks that, go church and back, yes, we will summer. Four weeks this A. possible to every effort every, we'll make this summer. Four weeks THE COURT: anything possible to do get to church and you what, during months did what And not .. see that Jason have him? you the same I'll ask THE COURT: in the month of June. A. It was You know how I asked her: question of June. All the month THE COURT: undoubtedly the fa- important this is you take him to many times did How the child child. You've had ther of the church? Catholic summer, six three, this four weeks During three weeks? A. this summer, re- your wife can't last weeks Uh huh. THE COURT: in a she was Catholic member when None A. go you and she don't says church. didn't, you. did You THE COURT: If and Christmas. only maybe on Easter today in Now, impression you gave the boy, why strongly about you felt your attorney questioning when along though him even you help didn't you the reason questions, asked the in his the father custody was with was because him to church take didn't you do training? Why didn't religious you time when pressed for you were it? you here, fact don't up but came said, sir, only my I not wife I owe A. As he's down him to church when take this, only you or or not apology for you, you? do Jason, apology for I do owe but Steve No, very often. A. Why I didn't- past. in the doing practic- your Is husband go THE COURT: into a things that a lot of there's practicing Catholic. A ing religious Catholic? back- life and the person's practicing born, birth-a I just Not Catholic raised a Catholic. ground. I was I church when was Catholic? to Catholic went go to church college. I continued practicing aof By the definition A. I I came home. college. I was when Catholiec- gives good It THE COURT: indication though doesn't it? I came home from a while when went for Well, sir, it indicates that I haven't A. discontinued, Why I there are college. past. it indicate that I in the Does won't that, I know. things don't sir, future, disagree I in the no have to Well, make it doesn't THE COURT: there. Meth- boy me if this was a difference to (the attorney) Let me Garry Mr. Trues' boy. Presbyterian or a Jewish odist or a you question. ask religion, if he raised in his He should be THE COURT: Go ahead. religion, and being raised in his is used to Garry: Quite frankly, we didn't talk a sudden telling me that all of you're it, aspect but much about this, you're going to all I, Judge you if if had known that past. you done it in the What haven't this, going take an interest you? I you believe that believe makes so, may turn rightfully and that this case you. trying That's what I'm to ask What *15 you to on or not took Jason you? I you makes think believe Sunday, you taken church on have things. Well, sir, I in certain A. believe Sunday him all of the times to church on you I'm only, not and sure I that believe you that him? were with way, the same that believe A. Yes. church, going but religion gotten from to you Garry: And now that know this practice you what learn you also have to that, he thinks Judge is interested and at church. your that add to important, that's does Well, get impression I THE COURT: Judge's to this determination abide necessary that you think it's that don't important? he thinks it's because wishes cor- you your religion, is that formalize sir, already I'll Yes I have said and A. rect? in church. say again: Jason will be No, important. Why A. I think it is may perhaps, your as Garry: We have I it? There's no exeuse for haven't done I, perhaps attorney, may and have go no exceuse-I can't back it. There's this, importance underestimated I, past But I can't now. and important it now that we know how but change the future. I can sure you the desire that is and file, this you did THE COURT: When you, having Jason live with have for Modify filed when? Petition to you no chance is there that will there is is. A. I don't know what date young gets man to not see that sometime June. THE COURT: Was gets reli- every Sunday to church Yes, you've in June. And sometime schooling? gious going that we were to known since June I sayme this. don't THE Let COURT: you- hearing. Why didn't have this I important. don't want think it is that I, may speak? I A. impression I think it's give you the to Yes. THE COURT: I do think it's im- important. But that gen- got I portant this father. with morals, say this. Jason's A. I want with him that he wishes impression eral standards, the im- qualities, Jason's of the child to only taught education things in life are not portant if is an element to consider. firmly I continue and Sundays. on be- in the church any, that the child has being I don't think I a doubt lieve that. know without raising him in, any duty Catholic I'm I know and there's type in the work that Moslem or or Jewish or or Protestant there is a without a doubt believe him, I has, they to raise wish being, a has to whatever superior God right equal to raise they think have an things. I of these Because coordinate all custody however they him if have the past in the gone to church haven't to, I think it's a consid- they but do going go I'm not want doesn't mean continuity as to wheth- eration on a basis future. church in the con- to be shall, an element it's er they knew sidered, I think them, they I think questioning I in his father it because known have
should has questioning through the at least go him to wants that he indicated and neither church, she has but he went seen gentleman has this
church. a little Judge, I've been
Garry: guess, I interview initial from the in that
remiss give I didn't this but mentioned I've my discussions proper,
maybe the proper give it the I didn't maybe
them given. I should
emphasis that Well, it's I think don't
THE COURT: means, I determining factor consider. an element think it's do 108-115).
(R. *16 HAWKINS, Keith as Guardian
Ruth (Defendant), Lewis, Appellant L. (MUTUAL) INSUR
AUTO-OWNERS COMPANY, D. Ste and Robert ANCE Defendant). (Plaintiff, Appellees phens,
No. 18A02-9005-CV-287. Indiana, Appeals
Court of District.
Second
Oct.