*1 Perdue v. Perdue. April 29, petition rehearing 968S147. Filed for No
[No. filed.] Smith, Eugene Maley, Robert S. O. James E. Marcum, Maley Smith, Douglas, Indianapolis, (cid:127)& all of appellant.- - Sidney Horn, Frank Morton, A. Morton, W. Tumbove & Rogers, Indianapolis, appellee. all of parties
Givan, J. The this case were divorced on June decree, among The divorce things, granted other parties’ minor appellee. On June against for citation pay failure to support. cross-petition filed a modify original custody alleging decree was not a fit to care for the child. It Loyde Fagel, natural stepfather and Louise mother and of appellee, were fit to care for the child. The trial court fact found cared for the child for years and had done several so without from appellee. court, either to May 1, 1967, appellee filed her On for modification gain seeking of the child from the rendering ground had been a that there of condition and advisable that *2 appellee. the in evidence this case that discloses support has not contributed to child in of the question appellee. since his divorce from the He now seeks awarding custody the trial reversal of court’s decision to asking and that returned be
The evidence further discloses that after the originally given out, to the it was as above set showing to her on a that she was destitute child, partially that unable to care for the fact due paid money. judge had no The trial parties opportunity him, this case had all before had the examine and each them. From examination observe his necessary he came observation to the conclusion that it was for the best interest and welfare of the child to return appellee. re- to the Evidence showed that she had married, longer fully capable no destitute and was caring previously pointed out the child. This Court has its in matters reluctance to overturn a trial court’s decision In a this kind. recent decision this stated: Court judge say the trial could not “While we are not able to upon intro- found than he did the evidence otherwise below, duced as a court of has hereto- review long poor fore held position clude line decisions that are in a we transcript record, to look at a cold of the and con- judge, witnesses, who saw the observed demeanor, testimony
their and scrutinized their as it came stand, properly from the witness did not understand the significance evidence, he should have found preponderance its or the inferences therefrom to be differ- he did. ent from what enough appeal “On it is not might sup- evidence conclusion, port other require some but it positively must by appellant conclusion contended for before there is
79 v. Brickley Brickley (1965), Ind. for reversal.” a basis 2d E. 2d 83. N. 201, 204, 210 N. E. the cases of Adams v. Purtlebaugh cites Wible 269, 102 E. Wible v. (1951), N. 2d 235, 196 3 Ind. Dec. showing must proposition that there substantial decree which since the last in conditions character as to make such a decisive are of happiness of the child to make an additional the welfare change. rule is in Wible the reason for this It is stated continually “custody and left creating instability living uncertain thus parents— It their that of the children. welfare —not primary concern the trial court.” We that should be ample trial court evidence make the hold that giving full in this case consideration supra. cases, Adams and principles laid Wible down assigns as additional error that he was not in *3 hearing of continuation date of the formed and was not 13, 1967, present on December when the balance of the heard and the court evidence was decision rendered in hearing that ap case. The record discloses this on pellee’s of was commenced on 1967; appellant present person by that was and October counsel, George Barger, hearing and that the W. commenced day request continued at of on that was and his specific no date established at that counsel with time for the hearing. 14, 1967, hearing continued On December when the resumed, is silent as the record to whereabouts of the however, present his counsel was and appellant; conducted the appellant’s No issue was made of of witnesses. examination request continuation made no in order absence presence. His absence from continuation of his obtain hearing first time questioned for the his motion for new objection proceeding of ap absence an In the trial. hearing, pellant’s continuation absence this presume improper part Court will not conduct either on the appellant’s part counsel or on the of the court. canWe only presume opinion that was counsel’s considered appellant’s presence necessary, charge was not and we will not responsibility stopping pro court with the ceedings timely objection part absence of appellant’s Barton counsel. v. State Indiana 257, 163 N. E. is, things trial court in all affirmed. Arterburn,
Hunter, C.J., concur; J., DeBruler, J., dis- opinion Jackson, J., with sents which concurs.
Dissenting Opinion The parties appeal J . to this were divorced on DeBruler, 28, 1960, by June the terms of their divorce decree entered granted on day, appellee parties, Kathy July the minor child of the born Appellant pay support ordered and was parties, Gary awarded of the other child P. Perdue, a minor male case. involved
Thereafter on June this same court held a on appellee against for citation appel- pay lant support for failure to cross-petition and on a modify original -decree. was not a fit to care Kathy Lloyd but Fagel and Louise the natural step- mother and father of were fit to care for her. The trial court found that cared for for several except years, period, for one five week without there had been a *4 of circumstances in the case 28, since the June 1960 decree justify a sufficient to of to the findings Fagels. Upon these the trial court ordered that original custody decree be modified and perma- Kathy nent of from the to the May 1, 1987, for modification On grounds seeking custody Kathy from the have “conditions since the decree of June materially changed conditions that such necessary pro- that the and advisable circumstances render it reviewed child be and control of said visions for the court held give custody appellee. The trial and altered” to allegation appellee’s and found that the change of good cause for and substantial was “true and justify awarding petitioner, Lois to the conditions exists to custody of (formerly Perdue) the care and Louise Goodman age, years child, Kathy forthwith.” her minor seeks appellant now review ordered and trial court so of that order. alleges insufficient there was evidence to and the
sustain the decision of the trial court
decision was
contrary
challenge
sufficiency
to law. On
re-weigh
evidence,
Court will not
it is well settled
this
testimony.
look
the evidence nor resolve conflicts
We
appellee,
favorable to the
reason-
the evidence most
therefrom,
if there is
sus-
able inferences
and see
evidence to
Brown v. Beachler
tain
trial court’s decision.
Appellee that since the last decree there had been a making presented sup- Kathy appellee. The evidence following allegation port last decree the that since changes life which now make her have occurred Kathy: (1) proper to have the a fit and Appellee Dean Goodman on married Harold March employee he a clerical testified that Mr. Goodman per Corporation at he hour and that Diesel $2.75 Cummins per (2) Appellee her week. took home $125 $150 with three six room house bedrooms now live husband Indianapolis, permitting Olney thus at 1220 quit working August, (3) Appellee of her own. a room *5 82
1966, can, (4) look after child. last decree has her on weekends son more often than before. magnitude permanence changes may of these be
questionable, however, I point would not decide because granted I believe that even if it is now an equally person custody Kathy fit to have that is not decisive principle in this case. This case is that the controlled must show that in conditions since the last decree are of such a decisive as character happiness make it welfare requested change custody be made. Adams v. Purtlebaugh 499; (1951), E. 230 Ind. 102 N. 2d v. Wible (1964), Wible 245 Ind. N. E. 2d 571. 196 Purtlebaugh, supra, refusing In Adams v. this Court in change custody non-parent, mother from a said: arrange “It policy has been a fixed of the courts to per- of children of divorced on basis parents manence to the extent permit. will conditions Provid- visiting having periods parent of course for for the custody. theory and permanent This is on the that a residence
is
happiness
best
(Em-
the child.
welfare
added.)
phasis
that a modification of a order cannot showing be made without a of substantial in condi- tions which affect the welfare children. v. Adams Purtlebaugh.... s}:
# sfc logic “There reason and principle such a of law. purpose of such a rule in the law is that the welfare of continually custody should not and their the children creating instability thus changed and uncertain left in the children. It is their living welfare —not primary be the concern that of —that (Emphasis added.) trial court.” 245 Ind. Brickley Brickley (1965), also See v. 850; App. 270, Morrison Morrison
2d v. 113; Beachler, Leroy supra; Brown Beach 164 N. E. v. v. *6 only course, applies rule when the contest
Of custody parents parent natural is between or between one given position and are in a who have continue stable, loving give provided the child a home similar to one clearly parents. normal This would exclude case where parents by the child is taken from the the State due to cir- beyond control cumstances in a In
an institution or boarded out foster home. that case require probably the welfare the child would parent to the natural who had reformed recently proper person a fit and to have or became such custody. This the situation in the before is not case us. 22, 1965, Fagels
The decree rendered on June found that the proper persons fit and to have care and were the Kathy. Fagels evidence in this showed home on an acre and one-half of a nice land with a Kathy. They separate room for have cared for her for six and exception years, period, one-half with of one five week any appellant. without from the or Accord- testimony voluntarily appellee’s placed Kathy own she Fagels early 1961 and on June with the legal Kathy. gave Appellee
court them has never Fagels challenged capacity the fitness of the to care loving provide stable, her with a home. In hearing appellee testified as follows: fact at the “Q. girl your ? love the Does little yes. does,
A. She Q. happy Is ? she their home suppose IA. so.
Q. telling you’re And she attached to the Fagels ? Yes,
A. she is attached to them.
Q. them, She loves does she not? suppose
A. I she does. Q. you Hasn’t she told that she ? does yes. before, A. has She her situation is the same as it was when the court
gave legal custody then her welfare not would require change. changes are circumstances changes require so decisive as to happiness the welfare and of the child.
I would hold absolutely there is no evidence of change in since the last decree which require so decisive as to for the happiness welfare and of the child. raises second issue which should be discussed.
Appellant had notice personally and was present at the first *7 hearing on October 1967. At the hearing close of that case was continued but no date was set time. given any claims that he was not notice of hearing the second held and, on December present was not testify present witnesses. As the father of the child right be notified of the date so that participate proceedings. he could State v. Achor However, 75 N. E. 2d appellee argues represented hearings was at both Barger, Mr. presented the same counsel who Fagels the case for the who cross-examined witnesses. agree
I would if represented by Mr. Barger in this cause then notice to him would have been However, sufficient. it is unclear from this record whether Fagels Barger representing appellant, Mr. appellant’s just interests are not neces- conflict, and could sarily identical with represent- is clear in the record which counsel should be made counsel, any, representing if which appellant. custody Kathy changing the trial court order Fagel and Mrs. from Mr.
C. Perdue grant appellant’s court ordered to and the trial reversed trial. motion for new J.,
Jackson, concurs. N. E. 2d Reported in 257
Note. —
Holliday v. State Indiana. rehearing April 30, 1970. No Filed filed.] 669S131.
[No.