Perdue v. Perdue

Givan, J.

The parties in this case were divorced on June 28, 1960. The divorce decree, among other things, granted permanent custody of the parties’ minor child, Kathy C. Perdue, to the appellee. On June 22, 1965, the appellee filed a petition for citation against the appellant for failure to pay support. The appellant filed a cross-petition to modify the original custody decree alleging that the appellee was not a fit person to care for the child. It was alleged that Loyde and Louise Fagel, the natural mother and stepfather of the appellee, were fit persons to care for the child. The trial court found that the Fagels had in fact cared for the child for several years and had done so without any support from either the appellant or the appellee. The court, therefore, changed the custody from the appellee to the Fagels.

*78On May 1, 1967, appellee filed her petition for modification seeking to gain custody of the child from the Fagels on the ground that there had been a change of condition rendering it necessary and advisable that the custody be changed to the appellee. The evidence in this case discloses that the appellant has not contributed to the support of the child in question since his divorce from the appellee. He now seeks a reversal of the trial court’s decision awarding custody to the appellee and asking that the custody be returned to the Fagels.

The evidence further discloses that after the custody was originally given to the appellee as above set out, it was changed to her parents on a showing that she was destitute and unable to care for the child, partially due to the fact that appellant had paid no support money. The trial judge in this case had all parties before him, had the opportunity to examine and observe each of them. From his examination and observation he came to the conclusion that it was necessary for the best interest and welfare of the child to return the custody to the appellee. Evidence showed that she had remarried, was no longer destitute and was fully capable of caring for the child. This Court has previously pointed out its reluctance to overturn a trial court’s decision in matters of this kind. In a recent decision this Court stated:

“While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.
“On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is *79a basis for reversal.” Brickley v. Brickley (1965), 247 Ind. 201, 204, 210 N. E. 2d 850, 211 N. E. 2d 83.

The appellant cites the cases of Adams v. Purtlebaugh (1951), 230 Ind. 269, 102 N. E. 2d 499, and Wible v. Wible (1964), 245 Ind. 235, 196 N. E. 2d 571, 3 Ind. Dec. 104, for the proposition that there must be a substantial showing of a change in conditions occurring since the last decree which are of such a decisive character as to make it necessary for the welfare and happiness of the child to make an additional change. It is stated in Wible that the reason for this rule is that “custody should not continually be changed and left uncertain thus creating instability in the living conditions in the children. It is their welfare — not that of the parents— that should be the primary concern of the trial court.” We hold that the trial court had ample evidence to make the change in custody in this case giving full consideration to the principles laid down in the Adams and Wible cases, supra.

Appellant assigns as additional error that he was not informed of the continuation date of the hearing and was not present on December 13, 1967, when the balance of the evidence was heard and the court decision rendered in this case. The record discloses that the hearing on appellee’s petition for change of custody was commenced on October 18, 1967; that appellant was present in person and by counsel, George W. Barger, and that the hearing commenced on that day was continued at the request of appellant and his counsel with no specific date established at that time for the continued hearing. On December 14, 1967, when the hearing resumed, the record is silent as to the whereabouts of the appellant; however, his counsel was present and conducted the examination of witnesses. No issue was made of appellant’s absence and no request for continuation made in order to obtain his presence. His absence from the continuation of the hearing is questioned for the first time in his motion for new trial. In the absence of an objection to proceeding in appellant’s absence at the continuation of the hearing, this *80Court will not presume improper conduct either on the part of appellant’s counsel or on the part of the court. We can only presume that it was counsel’s considered opinion that appellant’s presence was not necessary, and we will not charge the trial court with the responsibility of stopping the proceedings in the absence of a timely objection on the part of appellant’s counsel. Barton v. State of Indiana (1960), 240 Ind. 257, 163 N. E. 2d 600.

The trial court is, therefore, in all things affirmed.

Hunter, C.J., and Arterburn, J., concur; DeBruler, J., dissents with opinion in which Jackson, J., concurs.