dissenting.
The majority bases its reversal on a statement made by the trial court at the conclusion of the modification hearing in which he explained his reasons for denying the father's petition for modification. The majority cites the statement that the circumstances "are exactly the same as they were when this agreement was signed in 1989." The majority then correctly points out that things are not "exactly the same." However, after reading the record and the court's conclusion, I believe the majority has taken the judge's language out of context and the judge was correctly applying the standard that there had not been a vital, decisive change in conditions which affected the best interests of the child, the fitness of the mother, or the unreasonableness of the original custody order.
After hearing the evidence, the court made the following statement:
Well folks I have no idea what happened back in Georgia back in 1989, I don't have any idea what everybody assumed the agreement said, and what the court in Georgia approved, but the language is clear. "It is acknowledged by the parties in making this agreement the minor child Christopher Sean Ward is presently physically residing with his maternal aunt and uncle where and through whom he has been able to receive necessary and extraordinary medical and dental services. Husband acknowledges that the child's residence with his maternal aunt and uncle may be continuing for an unspecified period of time and that wife as legal custodian of said child shall determine the appropriate residence of said child." Language couldn't be clearer than that. Hendrickson case does not apply. This is not a fuss and I heard that at the beginning of this thing. It is not a fuss between maternal aunts and uncles and the natural father. It's a fuss between a natural mother and a natural father. The law in Indiana is clear, there isn't any question about it, and it's a good law. The reason we don't have judges being able to redetermine the best interests of the children. These folks determined what the best interest *172of the children were in 1989 and the reason that you can't come back into court every thirty days or ninety days or two years and just have some other judge decide what is in the best interest of the children is so there's stability and things stay basically the same because the law says that the best thing for the children. And I don't think the legislature is wrong about that and it wouldn't make any difference if I thought so. The legislature has spoken and it says that a judge can only change custody of a child if and when there's a substantial change in conditions. There has been absolutely no (inaudible) of any evidence of any change. The circumstances are exactly the same as they were when this agreement was signed in 1989. And for me to find otherwise, is a, or for anybody to argue that seems to me really-no this is not debate. I gave you an opportunity to talk about what you wanted to talk about. That's the way I see it, that's the way I call it. The Motion, now I don't know if I can award fees in this case or not. If you can find, I really don't know. There was no prayer for fees and I don't know if there's any grounds for me to award fee in this case or not. But I, and I don't know that I will, but if you can-I'll take that matter of fees under advisement and give you the opportunity to submit something if you've got something. But there isn't any question there's no evidence here of any change in circumstances of any kind, let alone one - that's substantial and continuing. I'm not saying, I'm not telling you the truth that if I were sitting as the judge in Georgia I'm not sure I would have approved an agreement like this, but the judge in Georgia seemed to think it was the best thing and certainly the parents thought it was the best thing. Anyway, that's the judgment of the court.
R. at 185-1837.
As noted earlier, the majority is correct in its statement that changes have occurred. Father has remarried and no longer lives with his father, but with his new wife in their nice home. Mother initially moved from her aunt and uncle's home in Indiana to Georgia, returned to Indiana for a six month period, and then again went to Georgia where she is now working and engaged to be married, but still struggling with financial problems. All these changes were fully explored during the hearing (the facts do not seem to be in dispute).
After all, the purpose of this hearing was to litigate whether the changes justified a change of custody. But the majority insists that, when the judge said "[the circumstances are exactly the same," such language indicated that he was unaware of the obvious changes. I would find that, in context, the court was saying what this appellate court on review has said many times-that the party seeking a change in custody failed to meet his burden of showing, by a preponderance of the evidence, "changed circumstances so substantial and continuing as to make the existing custody order unreasonable." Ind.Code 31-1-11.5-22(d); Elbert v. Elbert (1991), Ind. App., 579 N.E.2d 102; Pribush v. Roy (1983), Ind.App., 456 N.E.2d 747; Morrison v. Morrison (1960), 130 Ind.App. 270, 164 N.E.2d 113.
There was evidence supporting the judge's decision and it was not, therefore, clearly erroneous. I would affirm.