ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
REBECCA S. BRUCE DAWN E. WELLMAN
Muncie, Indiana Allen Wellman McNew
IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: )CATHY S. ALBRIGHT, )
APPEAL FROM THE HENRY COUNTY SUPERIOR COURT #1
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-9712-DR-089
October 19, 2000
OPINION - FOR PUBLICATION
II. whether the modification of custody order is contrary to public policy because it
is based, in part, on Cathys allegations that Jeffs mother sexually molested the
21. Dr. Bullis observed a pattern in the complaints made by Cathy Albright about
[T.B.] in that all of the symptoms were somehow related to visits with
Father. Cathy attempted to enlist him in her attempt to stop or
restrict visitation between Father and son, but he was unwilling to do so.
22. Both Doctors Kent Bullis and Sandeep Guptas physical examinations of the minor child
were normal. Neither found blood in the stool. Stool studies were
performed at Indiana University, James Whitcomb Riley Hospital for Children, all of which
24. Both parties testified that the Mother attempted to get Dr. Gupta to restrict
the visitation between Father and son and Dr. Gupta refused to do so.
27. On June 11, 1998, [T.B.] was in Dr. Bullis office and was interviewed
by Dr. Bullis. Dr. Bullis records indicate that the minor child told
him that he missed his dad, enjoyed seeing his dad, . . .
and that he likes to play with his dad. He further stated,
when asked about Grandmother Bogue, indicated that she did not sexually abuse him.
29. At a follow up visit at Dr. Guptas office on July 31, 1998,
Cathy Albright, when offered additional tests, indicated that she thought the problem was
a visitation problem and that she would take care of it herself.
34. In March, 1999, Cathy Bogue purportedly received information from [T.B.] which led her
to believe that [T.B.] had again been sexually abused by his paternal grandmother
during a visit at Fathers home which prompted Cathy and her present husband
to make a video tape of the minor child where he purportedly admitted
to the sexual abuse. The Court finds no credible evidence of sexual
abuse from the tape or any other evidence submitted to the Court.
39. Cathy did not contact the Father to indicate that she felt the paternal
grandmother was attempting to sexually abuse their child.
40. In September, 1998, Cathy Bogue contacted Dr. Bullis and attempted to persuade him
that [T.B.] had been physically abused by Jeff at a visit. Dr.
Bullis did not report it to the Division of Family and Children and
found the abuse to be unsubstantiated.
42. Margaret Purvis stated in her report that [Cathy] was obviously in need .
. . of individual psychotherapy and that the child should also be in
regular therapy. That has not occurred while in Cathys custody.
In reviewing a judgment where findings and conclusions have been entered, we first must determine whether the evidence supports the findings and second, whether the findings support the judgment. In Re Paternity of Winkler, 725 N.E.2d 124, 126 (Ind. Ct. App. 2000). Findings of fact are clearly erroneous only when the record lacks any evidence to support them. National Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 495 (Ind. Ct. App. 1999). In reviewing the findings and judgment entered by the trial court, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom. Id. Modification of custody is an area committed to the sound discretion of the trial court, and we are constrained to neither reweigh evidence nor judge the credibility of witnesses. Joe v. Lebow, 670 N.E.2d 9, 23 (Ind. Ct. App. 1996). Reversal is warranted only upon a showing of abuse of discretion, or where the decision is clearly against the logic and effect of the circumstances before the court. Id.
Perhaps the most critical of the ten challenged findings is number thirty-four, because the videotape of T.B. that Cathy prepared contains the only evidence, aside from Cathys testimony, that could conceivably be construed as an indication that Grandma Bogue had molested the child. However, as Jeff correctly points out, the key to this finding is that the trial court found this evidence not to be credible. In light of the testimony regarding the videotape that the trial court received from psychologists, counselors, and trained investigators of child abuse and molestation, it acted entirely within its purview in making that determination. Psychologist Davidson testified that the videotape indicated that Cathy was intent on getting T.B. to state that he had been sexually molested even at the expense of the childs health and mental health. Record p. 265. HCOFC caseworker Row testified that the videotape did not demonstrate anything of significance to me . . . as it relates to the molest because Cathy asked many leading questions after T.B. repeatedly denied having been molested, and because it was impossible to tell how long the child had been questioned due to the lack of a time stamp on the tape and the fact that the tape was stopped at one point. Record p. 464. Detective Seabolt testified that there were many, many things wrong with the manner in which Cathy attempted to interview T.B., and that the content of the tape was almost appalling. Record pp. 749-50. Several other individuals testified in a similar fashion. Thus, it is clear that the record amply supports finding number thirty-four.
Finding twenty-one is important because it supports a conclusion that Cathy was attempting to interfere in Jeffs visitation with T.B. She contends that this finding mischaracterized the evidence because the record only indicated that Cathy was attempting to link T.B.s bowel-related problems treated by Dr. Gupta with Jeffs visitation, not that she was attempting to link all of T.B.s health difficulties with visitation. We believe the trial court correctly analyzed the evidence. Dr. Bullis testified, with respect to Cathys reporting of T.B.s physical ailments, that while he initially did not draw any conclusion as to any pattern between visitation with Jeff and Cathys complaints, upon reviewing his records he agreed that there was a pattern of complaints after visitation with Jeff, while there were no complaints about Jeffs effect on T.B.s health before the parties separation. This observation was not limited to T.B.s gastrointestinal ailments. See footnote
Cathy challenges the last sentence of finding twenty-seven on the ground that Dr. Bullis did not testify, nor do his notes suggest, that [T.B.] either stated or indicated that he had not been sexually abused. Appellants Brief p. 26. Dr. Bullis records indicate that he talked to T.B. on June 11, 1998, after Cathys first molestation allegation: I asked him if grandma ever treated him mean, he did not reply. I asked him how grandma treats him, he said she gets mad at me when I watch TV. Record p. 325. At the hearing, Dr. Bullis agreed with Jeffs counsel that certainly the child that presented himself on June 11 th didnt appear to have been abused. Record p. 983. Although it may be true that the trial court repeated neither Dr. Bullis records nor his live testimony verbatim, findings of fact may contain reasonable inferences flowing from the evidence; findings need not be mere recitations of the evidence. See footnote There is nothing to suggest that finding twenty-seven is clearly erroneous.
Cathys challenge to finding forty again reflects her insistence that findings must precisely recite testimony or other evidence. In support of the trial courts finding that Cathy had attempted to persuade Dr. Bullis that Jeff had physically abused T.B., we note the following testimony:
Q: Returning to page 27, October 13, 1998. [Cathy] tries to make an argument that or shes concerned about Jeff possibly physically abusing the child. Correct?
Record p. 990. It is clear that this testimony supports finding
Generally, it suffices to say that Cathys challenges to the rest of the
findings are similar invitations to reweigh the evidence, make credibility determinations, or insist
that findings can only recite the evidence verbatim and cannot contain reasonable inferences.
We decline those invitations. Cathy cites
Sordelet v. Golsteyn, 697 N.E.2d
943 (Ind. Ct. App. 1998), trans. denied, in support of her contention that
the trial court mischaracterized evidence in making many of its findings. In
Sordelet, we reversed a modification of custody order where it was evident that
the trial court in its findings of fact had lifted statements from a
custody evaluators report out of context, with the result that it appeared that
the evaluator had recommended modifying custody when in fact he had not.
Id. at 947. Here, there is no indication that the trial court
lifted statements or testimony out of context in such a fashion that any
finding of fact conflicted with what the evidence actually reflected or with a
witnesss actual testimony. We conclude that the evidence supports the trial court
findings challenged by Cathy.
(b) In making its determination, the court shall consider the factors listed
under section 8 of this chapter.
The factors listed in Indiana Code Section 31-17-2-8 include:
(1) The age and sex of the child.
(2) The wishes of the childs parent or parents.
(3) The wishes of the child, with more consideration given to the childs wishes
if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the childs parent or parents;
(B) the childs sibling; and
(C) any other person who may significantly affect the childs best interests.
(5) The childs adjustment to the childs:
(B) school; and
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic violence by either parent.
In considering these factors, the trial courts inquiry is strictly limited to consideration
of changes in circumstances that have occurred since the last custody decree.
Hanson v. Spolnik, 685 N.E.2d 71, 77 (Ind. Ct. App. 1997), trans. denied.
We note that the trial court did not explicitly state which of the statutory factors it believed had created a substantial change in circumstances. However, when, as here, a party has requested specific findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A), the reviewing court may affirm the judgment on any legal theory supported by the findings. Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind. 1998). Before affirming on a legal theory supported by the findings but not espoused by the trial court, the reviewing court should be confident that its affirmance is consistent with all of the trial court's findings of fact and inferences drawn from the findings. Id.
The trial courts findings support a conclusion that modification of T.B.s custody was required by a substantial change of circumstances regarding T.B.s mental and physical health. We have previously held that if one parent can demonstrate that the other has committed misconduct so egregious that it places a childs mental and physical welfare at stake, a custody order may be modified. Hanson, 685 N.E.2d at 78. There is ample evidence of such misconduct on Cathys part, and of the effect of that misconduct on T.B.s health. In addition to the findings challenged by Cathy that we have already recited and discussed, numerous other findings not challenged by Cathy, and which are clearly supported by the record, substantiate this conclusion.
For example, finding twelve states:
Mr. Herbkersman [the court-appointed visitation counselor] perceived that Cathy was less than cooperative in the process, was not straight forward, and seemed to be lying about events during the counseling sessions with her. In Mr. Herbkersmans opinion, Cathy was regularly coming up with road blocks to prevent substantive and overnight visitation with the Father.
Record p. 129.
Finding thirty, which is critical with regard to Cathys effect on T.B.s mental health, states in part:
Dr. Davidson believed that the Mother was coaching the child and attempting to get the child to suggest that a molestation occurred when in fact it had not . . . . In Dr. Davidsons opinion, if the child were left in the Mothers care, he would have severe psychological problems as a result of Mothers inappropriate suggestions.
Record p. 132.
Finally, finding forty-one states:
Through Margaret Purvis, the custody evaluator, the Court finds that [T.B.] is at risk if he continues to reside with the Mother because of her near hysterical response to the purported allegations; that Mother maintains a bias against the Father; . . . that under all the circumstances to be considered, Jeffrey Bogue should have custody of the minor child, [T.B.].
Record p. 134. The record reflects that had it chosen to do
so, the trial court could have made a number of additional findings with
respect to Cathys misconduct and its effect on T.B. Nevertheless, the fifty-four
findings it did make support the modification order.
In addition to the fact that Cathy made unsubstantiated child molestation accusations to the authorities, it is evident that there was a substantial change in circumstances justifying the modification of T.B.s custody. See footnote None of the misconduct in this case occurred prior to the original custody decree, and at the time of the hearing on this matter, there were indications that T.B. was suicidal, whereas there was no evidence of such a severe level of emotional distress at the time of dissolution. The evidence indicates that Cathy has caused emotional damage to T.B. and that such damage would only continue to increase if he were left in her care. To not change custody of T.B. in the face of evidence that Cathy was damaging T.B.s mental health could have placed him in serious jeopardy. There is indeed a strong public policy in favor of good-faith reporting of suspected child molestation; that public policy has not been damaged here. We are dealing in this case with an equally strong public policy: ensuring that custody of the children of divorced couples may be modified when there is a substantial change in circumstances and the welfare of the child demands such a modification. The trial court did not abuse its discretion in concluding that modification of custody was necessary in this case.