Smith v. Mobley

STATON, Judge.

Andrea J. Smith appeals the modification of a custody order relating to her two minor children. Her appeal presents us with two issues, which we rephrase as follows:

I. Whether the trial court abused its discretion in modifying custody from Smith to her former husband after she gave notification pursuant to IND. CODE 31-1-11.5-21.1 (Supp.1990) that she intended to move, with the minor children, from the State of Indiana.
II. Whether the trial court abused its discretion in failing to cause the modification of child support to be retroactively effective to the time at which Smith became unemployed.

We affirm in part and reverse in part.

Thomas G. Mobley (Thomas) and Andrea J. Smith (Andrea) were divorced on November 21, 1988. Pursuant to the divorce decree, Andrea was awarded custody of the two minor children. After the divoree, she became engaged to Charlee M. Smith (Charles). Later she was transferred to a new job in Columbia, South Carolina. On January 3, 1989, Andrea filed a "Report by Petitioner of Moving Out of the State of Indiana," to which Thomas responded with *506a "Verified Petition to Modify Custody." A hearing was held, wherein Andrea stated that she would not be moving to South Carolina, but instead would be joining her fiance in Virginia Beach, Virginia. Temporary custody was awarded to Thomas until Andrea and Charles could get permanently settled in a new home.

On March 31, 1989, Andrea filed her first Motion to Reconsider, alleging that since the hearing, she and Charles had married and established a marital domicile in Virginia Beach. On May 22, 1989, Andrea filed her second Motion to Reconsider, alleging that she and Charles had now established a marital domicile in Nashville, Tennessee. After a hearing on the motions, they were denied and permanent custody was awarded to Thomas, with full visitation rights allowed to Andrea.

I.

Custody

Andrea contends that the trial court erred in modifying custody of the minor children from her to Thomas. In determining whether a change of custody is warranted, the trial court's task is to determine whether there has been a change in circumstances which is so substantial and continuing as to make the existing order unreasonable. Burrington v. Howard (1988), Ind.App., 521 N.E.2d 371, 372, trans. denied. The factors which are to be considered when determining whether to modify custody when the custodial parent indicates her intent to move out of the state include the distance involved in the proposed change of residence and the hardship and expense involved for the noneusto-dial parent to exercise his visitation rights. I.C. 31-1-11.5-21.1. Upon consideration of these and other important factors relating to the best interests of the child, the determination of whether or not to modify custody lies within the sound discretion of the trial judge. Pea v. Pea (1986), Ind.App., 498 N.E.2d 110, 113, trans. denied.

We will reverse a trial court's decision to modify custody only upon a showing of abuse of that discretion. Thompson v. Thompson (1990), Ind.App., 550 N.E.2d 1332, 1335. An abuse of discretion is evident upon a showing that the court's decision is clearly against the logic and effect of the facts and cireumstances before the court. Id. If there is any evidence, or legitimate inferences which could be drawn therefrom, which support the finding and judgment of the trial court, we will not substitute our judgment. Id.

In support of her contention that the trial judge abused its discretion, Andrea cites Pea v. Pea, supra. In Pea, the father of the child moved to Illinois. Later, the mother moved several times within Indiana and eventually married a man with which she was cohabiting. The trial court had awarded temporary custody to the father, and after a hearing a year later, awarded permanent custody to the father. The mother appealed, and the Second District reversed, holding that the mother's move within Indiana and a change in the mother's lifestyle did not constitute substantial changes warranting modification of custody.

We do not find the rationale in Pea to be controlling in this case, as we find several factors present in Pea to be lacking here. First, in Pea, both parents moved away from the original marital domicile. Id. at 111-112. Thus, any hardship was initiated by both parties. Here, only Andrea has moved, and any hardship on Thomas is solely of her making. Second, the mother and her new husband in Peo had established a permanent residence in' a home that was fully paid for. Id. at 114. Here, Andrea and Charles rent their home, and have exhibited a history of frequent moves. Finally, the mother in Peg moved within the state, whereas Andrea moved outside of Indiana to two different states, and her present residence is six-and-one-half hours from Thomas' residence.

Although Andrea correctly points out that a custodial parent's move out-of-state is not per se a substantial change in circumstances, Pea, supra, at 114, our Supreme Court has stated:

We agree with the Court of Appeals in concluding that a custodial parent's move *507out of state is not per se a substantial change in circumstances such as to make that parent's continued custody unresa-sonable. However, in so concluding, it appears to have considered the removal of the boys to Arizona in isolation from the relevant circumstances of their lives. Whether or not any given change is substantial must be determined in the context of the surrounding cireumstances. If, in context it is likely to beget a consequential end result, it must be deemed to be substantial.

Poret v. Martin (1982), Ind., 434 N.E.2d 885, 890.

The trial court could reasonably have found that it was in the best interests of the minor children to reside with their father, because "remaining in Indiana would promote stability in [their] schooling, community, social, church, and familial relationships." Burrington, supra, at 373. The move to Nashville could very well beget a consequential end result to any of these crucial relationships, making the change in cireumstances substantial and warranting a modification of custody. The Supreme Court in Pore? observed:

It is, after all, the effect upon the child that renders the change substantial or inconsequential; and a change that might be regarded as slight or inconsequential in one case might be catastrophic in another. The trial judge, therefore, must consider all cireumstances, including those previously weighed, in order to determine, in context, the substance of the change giving rise to the review.

Poret, supra, at 888.

The trial judge ordered home studies of both parental homes, heard protracted testimony of both parents and other witnesses, and conducted an in camera interview with the older child. The judge's findings indicate that the father was living in the marital residence in Kendallville; that after some problems, the older child had now become well-adjusted to the school environment; that within nine months of the entry of the judgment and findings Andrea had remarried and moved two times; that the children were attending church with their father on a regular basis; and that the children's extended family, including both sets of grandparents, resided in the Ken-dallville area. In addition, the judge heard testimony that the drive to Nashville took about six-and-a-half hours; that Thomas had the childrens' grandparents watch them while he was at work; and that Andrea and Charles had only rented a home in Nashville, Tennessee for five months prior to entry of the judgment and findings.

The record reveals that the trial judge undertook an exhaustive review of the adequacy of both homes, the eapability of both parents, and the interests of the children in order to facilitate his determination. Although that review indicated to the judge that both parents love the children and sincerely desire their custody, he nonetheless found that the best interests of the children would be served by granting permanent custody to Thomas with liberal visitation rights to Andrea. The evidence and the inferences from the evidence support the findings of the trial court; 1) that a continuing and substantial change in circumstances had taken place, and 2) that the best interests of the children required a change in custody to Thomas.

IL.

Support Payments

Andrea next contends that the trial court erred in failing to make the reduction in her support payments retroactive to the time at which she became unemployed. She further contends that the trial court erred in not abating the support payments for the time during which the children visited her pursuant to the court's June 20, 1989 visitation order. Thomas argues in response that retroactive modification of a support order is not permitted under Indiana law, and therefore the court did not err.1

*508Thomas is correct in observing that retroactive modification of support is error. Jahn v. Jahn (1979), 179 Ind.App. 368, 385 N.E.2d 488, 490. Such retroactive modification is erroneous, however, only if it purports to relate back to a date earlier than that of the petition to modify. Kruse v. Kruse (1984), Ind.App., 464 N.E.2d 934, 939, trans. denied; In re Marriage of Wiley (1983), Ind.App., 444 N.E.2d 815, 319. Thus, a trial court may make a modification of support payments effective as of any date after the filing of the petition. Wiley, supra, at 319. This rule serves to avoid encouragement of dilatory tactics and further the purposes of the changed cireum-stances rule. Kruse, supra, at 939.

Support for this rule is found in Lepper v. Lepper (1987), Ind., 509 N.E.2d 818. There, the Supreme Court recognized that, subsequent to a hearing on child custody, the noncustodial parent may wish to request another hearing for the purposes of presenting evidence with respect to support payments. It follows that the change in payments may be made retroactive to the time of change of custody in order to prevent inequity. If that were not the case, the party receiving the support payments could gain a windfall by delaying the hearing on the modification of the payments. We will not condone such tactics, nor will we provide the means by which they may be effected.

Here, the petition to modify custody was filed by Thomas on January 20, 1989. Temporary custody was awarded to Thomas after a hearing, and Andrea was ordered to pay $55.00 per week as a support payment. Andrea subsequently filed two Motions to Reconsider. In the hearing on those motions, Andrea presented evidence that her last day of work was February 24, 1989, and that she received two weeks vacation pay after that. The court clearly considered such evidence, because it made a specific finding that Andrea was unemployed, and modified her support payment accordingly to a minimal $15.00 per week, effective September 29, 1989, the date of the judgment entry.

There is no evidence in the record, however, which indicates why the trial court found September 29 to be a significant date with respect to the modification of the support payments. Andrea's testimony revealed she no longer had income after March 10, two weeks after she terminated her employment on February 24. She wrote a letter to the court which was filed on March 22, 1989, indicating that she was unemployed and asking whether she could have her support payments reduced. The letter was taken under advisement.

The March 22 letter had the effect of a petition to modify the support payments, because it signaled to the court an apparent significant and continuing change in cireumstances warranting a modification of the previous support order. The trial court had discretion to modify support payments at any time after the letter was filed. The only evidence on the issue presented at the hearing indicated that Andrea was unemployed and had been unemployed since the March 22 "petition." Thus, the court abused its discretion in making the reduced support payments effective as of September 29, rather than March 22.

The judgment of the trial court with respect to the modification of child custody is affirmed. The judgment of the trial court with respect to the determination of child support is remanded in order that the reduced payments may be made effective as of March 22, 1989. Upon remand, the court will make due allowance in assessing support payments for the period of time from June 24, 1989 to July 30, 1989 during which Andrea had custody of the children pursuant to the June 20, 1989 visitation order entered by the court.

MILLER, P.J., dissents to issue I and files separate opinion. GARRARD, J., dissents to issue II and files separate opinion.

. Thomas does not argue on appeal, and apparently did not argue at the hearing, that Andrea voluntarily terminated her employment, thereby precluding a reduction in support payments. See, Gerber v. Gerber (1985), Ind.App., 476 N.E.2d 531, 533.