DuFour v. DuFour

Robertson, J.

This appeal arises out of a decree of divorce and a subsequent modification of the divorce decree entered by the Elkhart Circuit Court. Plaintiff-appellant filed an action for divorce on June 11, 1969, against her husband, the appellee herein, and on December 5, 1969, the court entered a divorce decree. In the decree the court granted custody of the parties’ two minor children to the defendant, and visitation rights were granted to the plaintiff. The portions of the decrees pertinent to the custody of the children, and to visitation rights, read as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the defendant shall have the custody of the minor children of the parties, namely: Larry Dufour and Timothy Dufour.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the plaintiff shall have the right to see, visit and have the temporary custody of said minor children at all reasonable times.”

Thereafter, on June 26, 1970, the plaintiff filed a Petition for Modification of Divorce Decree in Regard to Visitation Rights. After hearing evidence on this petition, the court entered the following order:

“And the Court being duly advised in the premises now finds that the decree heretofore entered herein with reference to the visitation of children be modified to the extent that henceforth the plaintiff shall have the temporary custody of Larry Dufour only with the consent of said Larry Dufour; that said decree as to visitation of children be modified to the further extent that henceforth the Plaintiff shall have the right to see and visit with Timothy Dufour at all reasonable times and shall have the right to see him and take him into her custody in the home of Plaintiff’s sister, Mrs. Andrew Gingerich, in Elkhart County, Indiana, overnight or nights on various occasions, she to notify the defendant of such temporary custody situations at least ten days prior thereto.”

Subsequent to entry of the above order the plaintiff filed a Motion to Correct Errors, which was overruled on September 4, 1970, and thereupon an appeal was taken to this court.

Before discussing the merits of appellant’s appeal, it should first be pointed out that counsel for appellee failed to file an answer brief in this appeal, and therefore it is only incumbent upon appellant to make a prima facie showing of reversible error in order to entitle her to a reversal of the trial court’s decision. Berry et al. v. The Town of Fowler (1960), 240 Ind. 443, 166 N. E. 2d 333; Kuykendall v. Co. Comm. (1968), 142 Ind. App. 363, 234 N. E. 2d 860; Nunemaker v. Glassburn et ux. (1965), 137 Ind. App. 655, 210 N. E. 2d 668.

The appellant’s Motion to Correct Errors sets out four specifications of error. However, in view of the result we have reached, we find it necessary only to discuss No. 3:

“3. The decision is not supported by sufficient evidence upon all necessary elements of the claim and the defense, and is contrary to the evidence.”

It appears from the record and from appellant’s uncontradicted statement of facts that the only evidence supporting the trial court’s decision was the testimony of the appellant and that of the appellant’s present husband’s ex-wife.

Considering first the relevant portions of the appellant’s testimony, the following question and answer were admitted in evidence:

“Q. This gentleman you are married to, Mr. Pawling, were you going with him before you divorced Mr. Dufour?

“A. Pardon me?

“MR. MEHL: I believe we are going to object to going back in and trying the divorce suit. This is merely a matter of visitation rights.

“THE COURT: Objection overruled. (Thereupon the question was read by the Court Reporter).

“A. Yes, I went with him before we got our divorce.”

In her brief, appellant contends that at a hearing upon the modification of a divorce decree, evidence of the conduct of the parties prior to the entry of the decree is not admissible in evidence, and that such evidence should be limited to the present living conditions and conduct of the parties concerning such visitation. We must agree with the appellant’s argument. It is a well settled rule of law that the modification hearing cannot be used to retry the issues settled by the divorce decree. This rule was applied in Scott v. Kell (1956), 127 Ind. App. 472, 479, 134 N. E. 2d 828, in the following language:

“During the trial of the issues joined on the present petition the appellant, in an effort to prove that the appellee is not a fit person to have the custody of the two girls even temporarily, offered much evidence concerning her conduct before the divorce. The exclusion of this evidence is charged as error but we do not consider it so. In Dubois v. Johnson, supra, a case very similar to this, the court said:

‘Of course, the welfare of the children is the prime consideration, and should be so regarded in the hearing of the case, and the making of the decree. But when the case has been heard, and a final decree entered, the doctrine of res ad judicata applies as in any other case. There must be an end to such litigation. If, in this case, appellee has the right to go into the conduct of the appellant prior to the decree awarding the custody of the child he may do so in any number of subsequent proceedings for a modification of that decree, and thus the court may be called upon to re-try the issues already settled.

‘It is important to the child that there shall be an end to such litigation. No good can come to it from re-exposures of the faults of its parents. When the fitness of its custodian is once settled, that settlement should be regarded as final up to that time.’ ”

Accordingly, testimony regarding the appellant’s conduct prior to the original divorce decree was inadmissible in the modification hearing, and does not, therefore, support the trial court’s decision.

The testimony of the appellant’s present husband’s ex-wife (referred to hereafter as Doris Pawling) revealed that during her marriage to Mr. Pawling she had consented to engage in acts of oral sexual intercourse with her husband, who, according to the witness, could not be otherwise sexually satisfied. The appellant suggests that this testimony could have been excluded as irrelevant, however, the relevancy of Doris Pawling’s testimony is. not an issue here for the reason that the appellant failed to make such an objection at trial. This testimony, therefore, was properly admitted into evidence and we are thus confronted with the question of whether or not it constitutes sufficient evidence to sustain the trial court’s decision to modify the divorce decree by restricting the appellant’s visitation and temporary custody rights to her sister’s home.

While this appeal is concerned with the modification of visitation rights and not with a change in the permanent custody of the children, it has been held that the same rule is applicable to both types of cases. Renard v. Renard (1956), 126 Ind. App. 245, 132 N. E. 2d 278. The rule to which we refer has been consistently followed by the courts of this state, and was followed in Adams v. Purtlebaugh (1951), 230 Ind. 269, 274, 102 N. E. 2d 499, wherein it was stated:

“The cause relied upon in this petition to justify the modification of the decree must be that since the last order there has been a change in conditions of such a decisive character as to make it necessary for the welfare and happiness of the child that the requested change in care and custody be made. If such vital change in conditions is not averred and not shown by the evidence and found by the court, no change in care and custody can be made. Brown v. Beachler (1946), 224 Ind. 477, 68 N. E. 2d 915; Scott v. Scott (1949), 227 Ind. 396, 86 N. E. 2d 533; Reineke v. Northerner (1949), 119 Ind. App. 539, 546, 84 N. E. 2d 900; White v. White (1938), 214 Ind. 405, 410, 15 N. E. 2d 86.”

This rule was recently reaffirmed by our Supreme Court in Huston v. Huston (1971), 256 Ind. 110, 267 N. E. 2d 170, 171, in the following language:

“[1] In order to justify a change of custody of minor children of divorced parents, there must be a change in conditions from the date of the last court order and such change must be of such decisive character as to make change of custody necessary for the welfare of the children. Perdue v. Perdue (1970), Ind., 257 N. E. 2d 827; Brickley v. Brickley (1965), 247 Ind. 201, 210 N. E. 2d 850, 211 N. E. 2d 183; Renard v. Renard (1956), 126 Ind. App. 245, 132 N. E. 2d 278; Adams v. Purtlebaugh (1952), 230 Ind. 269, 102 N. E. 2d 499.”

In Huston, supra, p. 171, the court further stated:

“[2] Where modification is sought the burden is on the petitioner to allege and prove a substantial and material change in conditions affecting the welfare of the children. Wible v. Wible (1964), 245 Ind. 235, 196 N. E. 2d 571.”

We are of the opinion that, as a matter of law, appellee did fail to prove in the trial court a substantial and material change in conditions affecting the welfare of the children in order to justify a change of visitation rights, therefore, the decision of the trial court was an abuse of discretion. While appellee was successful in proving that certain difficulties existed in the sexual relations of appellant’s present husband’s former marriage, there was no proof that such difficulties existed in the present marriage which could possibly affect the welfare of the children during periods of visitation. To the contrary, it was testified that sexual relations in the present marriage were perfectly normal. It should further be pointed out that appellee, himself, testified that the appellant had always been a good mother to the children.

For the foregoing reasons, we must find that the trial court’s decision was not supported by sufficient evidence, and must, therefore, be reversed.

Sullivan, P.J., and Lowdermilk, J., concur; Buchanan, J., dissents with opinion.