Richardson v. Morgan
612 N.E.2d 157
Ind. Ct. App.
1993
Check Treatment

*1 Further, at argument oral the State con tended that we expand the Ashton Ranaye (Morgan) RICHARDSON, exceptions to include child molesting as an Appellant-Petitioner, allowable offense to be used impeach v. purposes. ment See Ashton v. Anderson MORGAN, Appellee- G. (1972), 51, 63, 258 Ind. 279 N.E.2d 216- Respondent. 17. We procedural note that the context of this case does not allow us to make such a No. 48A05-9204-CV-126. ruling. Here, the evidence was introduced Appeals Court of of Indiana, case-in-chief, State's while the Ask- Fifth District. exceptions ton involve the use of evidence April12,1993.

to impeach a witness on cross-examination.6

Moreover, the overwhelming presence

other evidence of molestation per

suaded the Lannan court to affirm not

withstanding the erroneous admission of depraved sexual instinct evidence is not

present in Here, Pirnat's case. there was

no third-party corroboration of the victim's

allegations other than T.C.'s mother recit her, what T.C. told and Pirnat did not

admit to the molestation. We note that our

holding comports with decisions from our

supreme court and other districts of our

court construing Lannan. E.g., Lockhart (1993), Ind., State 1093; 609 N.E.2d Van

over v. State Ind.App., 605 N.E.2d sum,

In 404(b) Fed.R.Evid. exceptions

will salvage Pirnat's defective convic

tion, and we must reverse and remand for

a new trial. We note that the evidence was

sufficient conviction, so dou

ble jeopardy considerations are not offend ed retrial. Brady See v. State 575 N.E.2d light of Lan

nan, we are constrained to reverse.

Reversed and remanded. MILLER,

BAKER and JJ., concur. cluded in the Record for us However, to assess given whether if opportunity expand jury could choose between molesting child exceptions, the Aston we would be inclined to battery as its verdict. We thus need not add molesting to the list of crimes which address this issue. impeachment are admissible for purposes. *2 sup- changed circumstances

finding of argues that She also the modification. port agree process. due We denied she was does not the evidence Ranaye that re- decision and support the trial reverse, will not we Because verse. argument. process Ranaye's due address

FACTS teacher at special education Ranaye is a police married to a She is a local school. County Madison Sheriff's with the officer husband, Ranaye, her second Department. son from a year-old nine her husband's marriage, and the twins live previous Ranaye and Daniel home same marriage-a three bed- during their lived High- two-acre lot off of home on a room Ranaye's work sched- in Anderson. way 9 she home when is such that arrives ule they Although leaves before boys she do. is at the morning, her husband do in the Her husband's with the children. house type on the depending schedule varies In addition doing at the time. work he is department, the sheriff's job his The jobs. does odd Ranaye's husband also IV, Office & Stone Law David W. Stone Anderson, mother and Research, appellant church with their for attend Legal testified witnesses step-father. Several petitioner. her fit mother and that Ranaye was a Smith, Ragains, Patrick R. C. Steven for the children. home was suitable Anderson, appellee-respondent. at Inland Fisher Guide Daniel works They legal secretary. is a BARTEAU, his second wife Judge. rural duplex in a two bedroom live Morgan Ranaye and Daniel Richardson accounts, home is nice By area. all time, At that in 1988. were divorced children. Daniel adequate for the have agreed that would two boys' upbringing very involved (now 11), age sons tody of their twin boys' sports teams. has coached having primary physical Ranaye Joseph, boys, are both compli- Jarrell very agreement, This as well as are described as ma- schedule, bright children who part made a was cated visitation parents describe age. Both ture for their March of the divorce decree. On seemingly being happy and original the twins sought modification of par- adjusted they are with order, and well when alleging "a substantial aca- do well parent. ticular continuing change of circumstance to war- very sports. demically and are involved previous modification of the Court's rant a that Daniel and (R. 25). hearing There is evidence After custody order." children. Con- disagree on how to raise the interviewing the twins in re- testimony was elicited at trial camera, granted Daniel's siderable the trial particular. Ranaye garding incident petition to the children's residence, Daniel, leaving upset she saw became team, coaching boys' basketball Ranaye was order, appeal intact. On from this team boys in front spank one of the argues that the evidence does during practice. response, members Ra- CUSTODY AND VISITATION1 naye permit would not the twins to play on 5. The children shall reside primarily a basketball team which Daniel coached. with father. however, Eventually, Ranaye agreed to 6. Mother shall have all reasonable ac- playing nights basketball on the week children, cess to the which shall include *3 and weekends were with their no less than the following: (Under father. original order, the a) Alternate weekends Friday from had custody boys nights during two p.m. 8:80 until p.m. 8:00 on Sunday. the week in every addition to other week- However, mother shall transport the chil- end). dren on said any weekends to activities in which the children have been previously Dr. Kenneth Dimick acted as a modera- enrolled. tor to help Ranaye and Daniel work out b) One weekday evening from the problems in custody arrangement. close of school p.m. until 8:80 when the agreed He had and Daniel children are not scheduled participate that he would not testify in court as to in school related or athletic activities. party he felt should have Father shall advise mother no less than did, however, He testify that he did not two weeks advance of said activities so think it would be harmful for the children the week-day evening visitation can be if Daniel were to have primary physical scheduled. custody of boys. He also testified that addition, during period of time boys both had strong a desire to live with when the father, children are with he Daniel. Dr. Dimick testified boys' that the shall extend the right mother the baby Intelligence Quotient test scores had sit for the children when a sitter is re- dropped since the original order; quired, taking into account the children's however, there wishes was no opportunities indication as to reasonable why drop occurred. relatives to Dr. Dimick have the spend children and time with them. testified that test vary scores will from one test to Father shall the next. have the children for a is no evidence that period of four weeks immediately any discipline or behavior year the school ends. The children shall problems. then be with mother for four weeks. After hearing testimony from several Father shall then have the children with witnesses and interviewing both him for the balance of the school summer camera, the trial court entered the follow- vacation. order:; Order that father pay sup-

port is hereby vacated. The Court was provided ORDER not with information concerning the current incomes of each party and The Court having taken under advise- will hold hearing on this issue ment the Petition to Modify by filed Hus- filing praecipe of a by party. either Al- 20, band on March 1991 having ternatively, the Court will consider the heard evidence on petition said on July filing stipulations parties con- 18, 1991, 30, October 1991 and November cerning either agreement concern- 6, having 1991 and interviewed the minor ing the amount of stipu- children in chambers now finds that the lations of the respective incomes of the Agreement entered parties parties support guideline and a child cal- filed with the April 7, Court on culation sheet from which the Court will should be modified to read as follows: rule hearing. without a numbering 1 . on this order is intended to not consecutive should not be taken to mean correspond with paragraphs numbered way the order is incomplete. in some divorce decree. The that the numbers are fact court's trial review Agree- Our remaining provisions All is limited modify April decision on by the entered ment court abused trial determining whether effect. force full remain applicable applying discretion its 42-3). (R. Id.; Schenk guidelines. Ind.App., DECISION Schenk reweigh the custody modifica We will 977, reh'g denied. any other inAs wit credibility of judge the nor change the seeking to case, parent tion evi only consider may where a child nesses residence de trial supports show must place dence custody order modifi so substantial reverse willWe in circumstances termination. manifest original residen has been there if make decision continuing as to cation *4 Ind.Code S- discretion. unreasonable. trial arrangement abuse tial (1992), of Wenning An abuse 31-1-11.5-22; Lomb at mons, N.E.2d our fails to As stated petitioner if the N.E.2d Ind., 600 occurs discretion in condi change prove a decisive allege and court: supreme stringent by the trial findings more no there are that and We conclude tions custody changes. standard Id. such modification court stabili- about concerns The same apply. oc of discretion an abuse Such custody in sole continuity present ty and alleged Daniel Although joint here. in the curred present are modifications there that petition signifi- modification his One tody situation. cireumstances, change in the child's stability in a substantial elements been cant those to what as allegations no caretaker-the made he the child's life is meals, prove to Further, him to puts he failed his cooks changes were. person who changes. such daily have been basis. on a that there him trial bed, at cares life Ranaye's custody ar- found change joint real likely only certainly It is is an there more are parents remarried has that both that she rangements is This, stand house. in the living Still, a boy rearing other a child. involved deci un- a parent to show one alone, with sufficient is not primarily lives child modification custody, a in circumstances. change joint der sive parent the other with to live a child sends Ranaye that brief in his argues Daniel effect, far as as same have the may in the atmosphere an "created has concerned, a traditional is child father, one contact home where Therefore, hold custody. change in is minimized most desire things custody legal is there that where Appellee's every turn." thwarted pri- the child's providing parent supported is not allegation This Br. 10. modify that residence, may a mary did not Ranaye Admittedly, evidence. showing only residence the basketball play on to want substantial so circumstances changed testified She coached. Daniel that team original make continuing as to coaching Daniel to opposed was she that unreasonable. arrangement residential one of spank Daniel saw she boys after that not sufficient It is at 98. Id. rea- her Whatever practice. boys at place: has taken home custodial in the compromise propose sons, did she change is of that must show petitioner no evi- is by Daniel. accepted was continuing na- decisive, substantial any of interfered that dence (1991), Ind.App., v. Simons ture. Simons Further, is there visits. scheduled Daniel's on a prevail to 566 N.E.2d undermine Ranaye tried evidence no non-custodi- custody, the modify petition boys. front of Daniel of overcom- heavy burden parent bears al much stock places also right to contin- parent's ing the custodial him. live with desire boys' expressed (1991), Id.; v. Elbert Elbert custody. ued existing However, absent 102, 106. Ind.App., custody unreasonable, child's One of the factors to be consid- wishes will not a modification of ered to an joint legal award of custo- dy is: persons "whether the awarded willing and able to communi- summary, we find that the trial court cate cooperate in advancing the child's by modifying abused its discretion the 1988 welfare." IND.CODE 31-1-11.5-21(g) § order and reverse.2 Because (1984 Supp.). Although requirement modification, we reverse the we need not not explicitly paramount elevated to stat- Ranaye's argument address that she was ure within joint custody provi- Indiana's procedural denied process. due sions, jurisdictions some provided. have so REVERSED. e.g. (1989), See Petrashek v. Petrashek 282 Neb. (joint N.W.2d 220 J., RUCKER, concurs. eustody favored, only awarded in HOFFMAN, J., opinion. dissents with rare parents circumstance where pos HOFFMAN, Judge, dissenting. great sess ability cooperate); respectfully I dissent. majority Dunham v. Dunham Okla. opinion applies correctly the law as it was App., (cardinal 777 P.2d 408 criterion is interpreted in Lomb v. Wenning agreement by parties along with abili 96, Debruler, J., 600 N.E.2d dissenting *5 ty cooperate to to reach shared deci (majority determined that modification of sions; thus, parties' opposition joint to joint custody obtained through "substantial custody joint is custody antithesis of continuing change" standard). and Howev- concept); er, an issue which has not been addressed v. App.Div.2d 126 Trolf Trolf legislature the Supreme or our Court is 544, 666, 510 N.Y.S.2d app. diss. 69 joint whether custody can remain viable (joint N.Y.2d custody not favored once contested modifications arise after the and such order must be reversed initial joint determination that custody inis where record animosity demonstrates the best interests of the children. and inability cooperate). to present case, In the parties the initially Here, parties the object joint did not to agreed joint custody to physi- However, custody. highly the contested custody cal residing with Richardson. The nature of the proceedings modification joint dissolution court custody awarded parties' the inability amicably continued to requested by parties. the preciseness abide por- detailed visitation schedule with which custody the and visitation tends future behavior inconsistent with schedules were appears set out telling joint custody. necessity The mere for such regard parties' to the ability cooperate to a detailed visitation schedule reflects a low concerning matters the children. Even af- level of concerted par- effort between the ter January the modifying ties. custody, parties the peti- continued to file tions upon differing based I interpretations continue to believe that the divisive nature of of the visitation custody proceed- dissolution and unwillingness order and an part on the of the father to comply with the ings requires the utmost caution to an order. joint custody. award of con- recognize 2. We Wenning in Lamb v. change of circumstances to warrant the modifi- opinion cation, an handed down but did not state what those circum- case, the trial court's order in this the petitioner stances alleged were. The had not supreme custody court remanded the modifica changed petition. circumstances in his Unsure tion to the trial court "for evaluation of the which employed, standard the trial court the according change custody to the supreme court remanded for clarification. Lamb, standard...." Id. at 99. the trial Here, however, allege Daniel did judge hearing stated at the that he was circumstances. there is no indication going modify custody to because it would be in standard, that the court used the "best interest" the best interest of the children. In the written order, however, as was the case in Lamb. he stated that there been a are, for decisions everyday the party, joint that one insure attempt to siderations to left practicality, stability sake spirit the some unless awarded not be tody will the major decisions Any party. concern- parties the between cooperation type the exactly of share should Once parties apparent. readily children ing the rela- straining familial awarded, parties the turmoil cause custody has been joint families. congenial spirit tionships maintain to able must be beyond to be appear would decisions Such cooperation. parties relationship of the scope of proceedings modification Filing contested through differences resolve to chose custody award joint dissolve should divorce. matters custody parties return remand custody Therefore, vote ante, requiring I would quo to status the best determine hearing for interests cause the best under determination award for an thing as unilat- children no such interests standard. evidence. party upon such custody least based When sole cooperation. eral proceed wish does unable been has arrangement arrange- amicably alter unwilling necessary cooperation ment, spirit of in a to thrive children allow To destroyed. has been arrangement not serve does to stand an award such merely pla- but children interests WILLNER, Appellant to have of both desire Lee cates Robert Below), (Defendant contested filing of a Thus, require proceeding modification *6 of interests the best determine hearing to Indiana, Appellee of STATE custody pro- any initial inas children Below). (Plaintiff ceeding. 82A04-9012-CR-604. No. Lomb, supra, extent To the a barrier read could be Indiana, of Appeals of Court custody based an assessment District. Fourth interests best 13, 1993. April urge dissolved, I would custody award aspect revisit Court Supreme June Denied Transfer ma- by As noted custody formula. signifi- Lamb, jority "[olne life is stability in a child's elements cant caretaker...." child's continuing The substantial role to curb suited primarily standard discre- the court's limit judiciary It established. custody once to alter

tion reality however, comport with not, does inherent destabilizing qualities "shared" "joint" terms disso- parties' in that the fictions legal

are from si- them prohibits effectively lution those custody. For sharing multaneously custody, physical split wish fro without to and bounced children custody lies with physical When stability.