*1 attorney-client relationship between the respondent and the accountant was the re-
spondent's retention of settlement funds respondent
trust for the accountant. The attempts
made numerous unsuccessful to ar-
range for the accountant to retrieve respondent
funds against before the filed suit Later,
him. dispute respon- between the
dent and his client and the accountant was
fully respondent's settled. The represents Count II deliberate contraven- specific directive of a tribunal. simply ignore
He chose to the trial court's
restraining order asserting without even legal
colorable claim that obligations were
invalid. respondent's Mindful of both the
deliberate misconduct and the factors miti-
gation, thirty-day we concludethat a suspen-
sion, although lenient, somewhat is within the
acceptable range appropriate sanctions in
this accept parties' case and thus agreed
sanction. is, therefore, respon- ordered that
dent, McCarthy, Daniel C. suspended period thirty days, beginning Au-
gust 1996.
Costs of proceeding are assessed respondent. WALLIN, Appellаnt-
Aimee Sue
Petitioner, WALLIN, Appellee-
Respondent.
No. 04A03-9509-CV-319. of Appeals
Court of Indiana. 1996.
Publication Ordered June
260
fy custody placed custody sole children with Father. The court also noted support that Father was in arrears on child $6,158.00, in the sum of but did not find him Watson, Williamsport, Ap- for Kenneth R. contempt.1 granted The court Mother pellant. pay reasonable visitation and ordered her to per in the sum of week. $54.00 Woods, Fowler, Appellee. L.
Dennis This ensuеd. OPINION ISSUE GARRARD,Judge. sole issue is whether appeals Aimee from an order custody Sue Wallin trial court's modification of consti- modifying child in which the trial of tutes abuse discretion. eustody minor
court transferred of her two children to her ex-husband & DISCUSSION DECISION Wallin. phrases argu her issues, separate essentially ment in four she FACTS challenges the trial court's determination to (hereinafter "Mother") Aimee Wallin and modify custody being unsupported by evi (hereinafter "Father") Kevin Wallin divorced dence and an abuse of discretion. She claims 21, January parties 1998. The had two changes in her residence аnd her during marriage, minor children born past cobabitation with two men over the Wallin, 5, Tiffany July 1991, Renee born not upon did result adverse effect Wallin, 18, January Nathaniel Brian born pаrties request specif children. The did not 1993. The trial court awarded of 52(A); findings pursuant ic to Trial Rule nor granted both children to Mother and Father findings sponte. did the trial court enter suа supervised visitation. Therefore, we will reverse the award of cus tody only if clearly that determination granted petition The trial court Father's logic effect the fаcts and September for modification of visitation on cireumstances before the court or the reason 30, 1994. The court ordered that Father able inferencеs to be drawn therefrom. He have reasonable visitation on alternate week- gerfeld 853, Hegerfeld, 856 specified holidays. ends and several Al- (Ind.Ct.App.1990). though days the first 90 of Fаther's visitation taking place was restricted to at his mother's gov- Modification of a order home, his visitation became unrestricted af- 31-1-11.5-22(d) (West erned Ind.Code period. tеr this time Supp.1995). July Prior modify court could 7, 1995, petition On June Father filed his "only upon cireum- requesting previ modification of the court's continuing stances so as to placing ous еxisting custody make the order unreason- and Nathaniel with Mother. In Wenning, able." Lamb v. petition, alleged that Mother had (Ind.1992) (citing earlier version of 1.0. not maintained a stable homе the children 1-11.5-22(d)). 1, 1994, July Effective howev- and had failed to their er, legislature away our moved from the and emotional needs. He further contended long-standing, stringent rather standard that it would be in the children's best inter amending the statute to read as follows: ests for to be and estab (d) evidence, hearing lished in him. modify After The court not a child cus- petition tody triаl court Father's to modi order unless: (AFDC). 1. Both Mother and Father had minimal income Dependent and received Aid For Children hearing. living After in a three bed- inis the best interests of the apartment room Country Estates, View complex, HUD financed she moved in with in one boyfriend, Gary. up When she broke or more of the factors which the *3 Gary, with Mother moved into a five bed- may court [Ind.Code under 31- 1-11.5-21(a) ]. Brady room house on Street which she adults, shared with two boyfriend other requires amended statute also Evertt, Tom and four children. The house addrеssing custody modification to con- Brady proved Street poor to be in condi- § sider the factors listed under I.C. 31-1- tion, however, and Mother was forced to 11.5-21(a), requires which a trial court enter- again roof, move leaking due to a leaking ing order to consider all relevant heater, water problems. electrical factors, including thе stayed temporarily grand- with her (1) the and sex of the mother, and she left both children with Fa- parent the wishes of the child's or j ther until place she found a suitable them. spent onе week at Father's with more con- house, and stayed Nathaniel for three weeks. to the child's wishes if the Then boyfriend Mother and her Tom moved child is at years least fourteеn into a two bedroom country trailer in the (4) the interaction and interrelationship of with the children approximately one parent the child with his parents, his month. At the time of the modificationhear- may ing, Mother and Tom lived in a trailer at the significantly affect the child's best inter- MarJan Trailer Park they where had resided ests; | approximately twо months. The evidence demonstrated a lack of sta- bility in by the children's lives caused Moth- frequent er's moves. The fact that Mother occupied six different residences within а one added). (Emphasis On of a review modifi change occurred in the custodial cation, reweigh we do not evidence or reas arrangement. Moreover, the evidence indi- Moreover, credibility. sess witness we con cated that Mother provid- had a difficult time sider the supports evidence which the ing appropriate сhildren, shelter for the trial Doubiago court's decision. v. McClar she was forced to leave them with ney, (Ind.Ct.App. 1087-88 one occasion when she inwas between resi- 1995), trans. denied. The child's interest is dences. paramount consideration in mod precedence ifications and par takes over the Contrary situation, to Mother's Fa ent's interests and desires. Id. at 1088. appeared ther stability able to Moreover, parent noncustodial must lacking that was in the children's lives. Fa something show more than isolated acts of ther had remarried and lived in a four bed by the custodial to war room house owned his wife and mother-in- rant a custody; modification of child wife, law. He shared the home with his nоncustodial must show that father-in-law, and two other children. We circumstances regarding the par custodial conclude that sufficient evidence existed here stability ent's аnd the well-being child's are to custody. a modificationin Due to Simons, substantial. Simons v. change a substantial in Mother's to (Ind.Ct.App.1991); I.C. 31-1- provide stability children, and shelter for her 11.5-22(d). the trial cоurt did not abuse its discretion in present In the concluding the evidence estab- that a modification inwas lished that Mother residences six the children's interests. IC. year precеding times within the longer modifica- requires no a find- in ing that the current the best interests of the child and modification, allowing a unreasonable before in one or more continuity provided in of the factors in emphasize we that re- I.C. 81-1-11.5- Z2l(a). key determining mains a the best A "substantial element However, arrangement" pro- interests of a child. the record in is nоt one of the factors at vided statute. that case bar is sufficient be true a more living arrangement may that stable trial court's conclusion the children's interests the child but the statute is in the required best interests be trans- conjunctive ferred to Father. and there has been no any of the six factors included in I.C. Judgment is affirmed. 1-11.5-2l(a). I would reverse the trial *4 modify сustody court's determination to STATON, J., concurs. being unsupported by the evidence. RILEY, J., separate opinion. dissents with RILEY, Judge, dissenting. ORDER majority I respectfully opin- dissent. The having This Court heretofore handed down "(Phe ion states that fact that Mother cecu- opinion in this marked "Memoran- pied six different residences within a one Decision, Publication"; dum Not for occurred Perry Ship- Comes now the R. Honorable arrangement." majority holds that man, Judge, Benton Cireuit Court and re- there was sufficient evidence to show a sub- quests publish this Court to said decision for stantial Mother's opinion the reason that deals with the stability and shelter for her children. This Assembly's change 1994 General in the stan- may be evidence that interests of Custody Statute, dard for Modification of the child would be served a stable envi- 31-1-11.5-22(d)(@); 1.C. ronment, however, it would also be in the Court, having And this opin- reviewed its if interests of the child the Father had advised, being duly ion now paid timely his in a manner. There- request finds that Judge Shipman part fore we must turn to the second opin- should be and that this Court's statute, custody modification LC. 31-1-11.5- ion in this heretofore handed down as 22(d) which directs the court to all a Memorandum Decision should now be or- including relevant factors published. dered and sex wishes of the child's IT IS THEREFORE ORDERED as fol- lows: with more con- opinion This Court's heretofore handed to the child's if wishes down in this cause on 1996 marked (14) years the child is at least fourteen "Memorandum Decision" is now ordered published. interrelationship the interaction and John T. Sharpnack /s/ the child or parents, with his Judge Chief
may significantly affect the child's best
interests;
L.C. states that
may modify a child when