Marriage of Herrmann v. Herrmann

SHIELDS, Judge.

Donald Herrmann appeals the trial court's denial of his petition to modify the custody of the two children from his marriage to Lisa Patterson (formerly, Lisa Herrmann).

We affirm.

ISSUES

Herrmann raises issues for our review which we rephrase as:1

Did the trial court abuse its discretion when it found that there were no substantial and continuing changes in the circumstances of the parties which justify modifying the custody of the minor children?

FACTS

On October 10, 1989, the Marion County Circuit Court dissolved the marriage of Herrmann and Patterson and awarded Patterson custody of the two children born to *473the marriage, aged ten and six at that time. Herrmann was granted visitation with the children for four weeks each summer, and during Christmas and spring vacations in even numbered years. He was order to pay $122.50 per week toward the children's support and to maintain medical insurance for them. Patterson was given the federal and state tax exemption for the children if she was gainfully employed for each full calendar year. A 1990 nune pro tunc order divided the uninsured medical, optical, dental, and pharmaceutical expenses equally between the parents.

At the time of the divorce, Herrmann, a career non-commissioned officer in the United States Army, had returned from a tour of duty in Korea and was living in an army barracks. After the divorce, Herr-mann remarried and moved to a suburb of Augusta, Georgia; Patterson also remarried and moved from the former marital residence.

On November 5, 1990, Herrmann petitioned for a modification of custody of the children, alleging that a substantial and continuing change of circumstances made it unreasonable for the children to remain in Patterson's custody. He asked to have physical custody of the two children, or in the alternative to grant him extended summer visitation, relief from the obligation to pay all uninsured medical expenses,2 support abatement when the children were with him, re-allocation of the income tax exemption, and sharing of transportation costs incurred during visitation.

An evidentiary hearing was held on March 20, 1991. On May 22, 1991, the trial court found there was no showing of a substantial and continuing change in circumstances justifying a change of custody. The trial court denied Herrmann's modification petition, with the exception of two additional weeks of summer visitation, and ordered all other provisions of the prior orders continued. Herrmann appeals.

DISCUSSION

Herrmann argues that the trial court erred in finding that he failed to show a sufficient change in cireumstances to justify a change in custody of his minor children. He also contends that even if the trial court properly decided the physical custody issue, it improperly denied his other modification requests, including support abatement when he had the children for visitation, the sharing of transportation costs incurred during visitation, and reallocation of the income tax exemption.

Custody modification is governed by IC 31-1-11.5-22(d) (1992 Supp.), which requires the trial court to find that a substantial and continuing change in cireumstances has occurred which renders the original custody order unreasonable before a modification can be ordered. We review the Entry on Petition for Modification to determine whether the trial court abused its discretion in applying the applicable statutory guidelines. Simons v. Simons (1991), Ind.App., 566 N.E.2d 551, 554. An abuse exists if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, Id. A modification of custody is warranted only when the noncustodial parent shows a decisive change of conditions in the custodial home or a change in the treatment of the children in the custodial home which necessitates removal. Id.

At the hearing, Herrmann testified extensively as to his claimed changed circumstances. Since the divorce, Herrmann has remarried and rented a townhouse in a suburb of Augusta, Georgia, with ample bedroom space for the children. He testified to the high quality of the neighborhood public schools and the opportunity for after-school and summer activities in the neighborhood and on the army base which the children could enjoy if they lived with him. However, a modification of custody is *474typically based on changes of cireum-stances respecting the custodial parent, and improvements of the noneustodial parent's situation do not support a change of custody. Pribush v. Roy (1983), Ind.App., 456 N.E.2d 747, 750.

In regard to the custodial home, Herrmann characterized the neighborhood where the children's present school was located as "nasty," Record at 124, and stated that he felt the school did not meet the children's needs and that the younger child was repeating first grade and reading on a remedial level while the older child, who Herrmann believes is "near gifted academically," id., was not being challenged academically. Patterson testified that the younger child was progressing in school at the time of the hearing and that she was in contact with the child's teacher as recently as a week before the hearing. She stated that she reads with the child and monitors his school work. In addition, in a letter to Herrmann, the younger child's teacher praised Patterson: "[hler cooperation and support has helped to turn [the child] around. You can be sure [he] is getting the help he needs at home." Record at 195.

Herrmann complained that Patterson had not kept the children's vaccinations current and that he took them for medical and dental checkups when they visited him during their summer vacation. He stated that the younger child would need braces, that he had seen a speech therapist, and that Patterson had not responded when notified of the problems. Patterson said that she allowed Herrmann to provide the children's dental care and she had altered her plans to take them to the dentist after she discovered Herrmann had done so during the summer. She also testified that, although she did not have annual physicals performed, she sought medical attention for the children whenever they were sick.

Finally, Herrmann alleged the children used inappropriate racial epithets, exhibited an extensive knowledge of R-rated movies, and that they were allowed to ride in the back of Patterson's husband's pick-up truck without seatbelts. Although we are sensitive to Herrmann's parental concerns, . the evidence, considered as a whole and most favorable to the judgment, see Pri-bush, 456 N.E.2d at 749, does not compel a finding of change in the children's custody such that the trial court abused its discretion in denying Herrmann's petition to modify custody3

Herrmann also contends that even if the trial court properly decided the physical custody issue, it improperly denied his other modification requests, including support abatement when the children were with him, reallocation of the income tax exemption, and sharing of transportation costs incurred during visitation. A person who seeks a modification of child support bears the burden of proving a substantial change in circumstances. Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279, 1286. Although Herrmann requested these modifications during the modification hearing and argues for them in his brief, he did not introduce evidence to demonstrate substantial changes relevant to his proposed modifications. Thus, the trial court correctly exercised its discretion to deny his requests.

Judgment affirmed.4

HOFFMAN, J., concurs. *475BUCHANAN, Senior Judge, dissents, with separate dissenting opinion.

. In addition to the issue which is dispositive in this appeal, Herrmann argues that parents seeking a change of custody have an excessive burden of proof placed upon them which results in a disservice to the best interest of the children whose custody is at issue, and asks that we reevaluate this standard. However, as Patterson acknowledges, the reevaluation which Herr-mann requests is the exclusive province of the legislature. In addition, this court recently has explained the rationale behind this standard:

In an initial custody determination, the trial court presumes that both parents are equally entitled to custody. The initial custody determination is based on the trial court's determination of which parent would be better. , However, a subsequent petition to modify custody is not a vehicle to relitigate the initial custody determination as to who might make the better parent. In a subsequent petition to modify custody, the noncustodial parent bears the burden of overcoming the custodial parent's right to continued custody and must make a showing of a change in the custodial home which is of a decisive, substantial, and continuing nature.... In any custody determination, the overlying concern of the court is with the best interests of the children involved; however, whenever one party seeks a modification of an existing custody determination, only a strict showing that the present arrangement is unreasonable will suffice to justify a change in custody because of the potentially disruptive influence upon the child or children.

Simons v. Simons (1991), Ind.App., 566 N.E.2d 551, 554-55 (citations omitted).

. Herrmann argues that the court abused its discretion when it refused to modify the divorce decree which made him responsible for all uninsured medical, optical, dental, and pharmaceutical expenses. However, Herrmann ignores the August 3, 1990, Order Nunc Pro Tunc which ordered that each party share equally all uninsured medical, optical, dental and pharmaceutical expenses. Thus, this argument is without merit.

. Dr. John Ehrmann, a clinical psychologist who examined the parties, their spouses, and the children at Herrmann's request, determined that both parents satisfied the emotional needs of the children, although Herrmann was more affluent and could provide more opportunities for the children. Dr. Ehrmann found that the quality of interaction between the children and their parents and step-parents was positive. The children appeared affectionate to and accepting of their step-parents and appeared to be loved and cared for by both sets of parents. This testimony also supports the decision of the trial court.

. Contrary to Judge Buchanan's dissent, the trial court did not misunderstand and misapply the appropriate law by failing to "consider all of the parties' circumstances when determining whether a substantial change had occurred" in the context of the children's best interest. Slip op. at 16. Reading the trial court's volunteered statements as a whole, it is readily apparent that the trial court is well-aware of existing law and *475is merely expressing its frustration with what it feels is a judicial misinterpretation of the legislative standard expressed in IC 31-1-11.5-22(d). In the trial court's opinion, the proper interpretation is that a modification of custody is appropriate "whenever a child custody arrangement is shown by clear and convincing evidence that it is no longer to be [sic] the best interests of the child, [because] such fact in itself constitutes a change in circumstances that make the prior orders unreasonable." Record at 23. In particular, in citing Simons v. Simons (1991), Ind.App., 566 N.E.2d 551, as an example of the judicial decisions which have misinterpreted the test, and in stating that "this Court is bound to apply the law as interpreted by the higher Courts of this State," Record at 23, the trial court makes it quite clear that it understands and is applying the existing law in denying the subject petition for modification.