Dispute about the terms of physical custody

Indiana Case Law

SABO v. SABO, 58A05-0608-CV-409 (Ind.App. 12-29-2006) IN RE
THE MARRIAGE OF ANTHONY J. SABO, Appellant-Petitioner v.
CINDY K. SABO, Appellee-Respondent. No.
58A05-0608-CV-409. Court of Appeals of Indiana. December
29, 2006.

Appeal from the Ohio Superior Court, The Honorable John A.
Westhafer, Special Judge, Cause No. 58D01-9712-DR-23.

NANCY C. JACOBS, Jenner Auxier & Jacobs, LLP Madison,
Indiana, ATTORNEY FOR APPELLANT.

KENA S. HOLLINGSWORTH, Hollingsworth Jocham & Zivitz, LLC
Carmel, Indiana, ATTORNEY FOR APPELLEE.

OPINION

FRIEDLANDER, Judge.

Anthony J. Sabo (Father) appeals an order establishing the
terms of physical custody of his and Cindy K. Sabo’s
(Mother) daughter, A.S.

We affirm.

The facts favorable to the trial court’s ruling are that
Father and Mother were divorced on February 17, 1998. The
dissolution order incorporated a settlement agreement the
parties had negotiated and submitted for the court’s
approval. The only portion of the settlement agreement (and
thus the dissolution order) in dispute in this appeal
involves the issue of child custody. At the time of her
parents’ divorce, A.S. was three years old. With respect to
her custody, the parties agreed, and the court ordered, as
follows:

The parties agree that custody of the minor child, [A.S.]
born August 16, 1994, shall be joint. The parties further
agree it is in the best interests of the minor child that
both parents shall in all respects share in and be
considered equal physical custodial parents and that each
parent shall, at all times, have all the same rights and
access to the minor child and decision making regarding
her care and comfort. The parties acknowledge that a
satisfactory schedule for when the minor child shall
reside with each parent has been agreed upon whereby
each party will have the minor child in his or her custody
50% of each year. At such time when the minor child
reaches school age, the parties agree she shall live with
one parent during the school year and with the other
parent during summer vacation. The parties agree to
divide evenly any expenses associated with any
visitation agreement. Wife agrees to allow Husband access
to any military installation at which Wife may reside or
upon which the minor child attends school, daycare, or
any extracurricular activities. Each party agrees to
include the other on any list of individuals permitted to
pick-up [sic] or drop-off [sic] the minor child at any
school, daycare, or extracurricular activity in which she
may be enrolled or participating.

Appellant’s Appendix at 2.

When A.S. started school, Mother was serving in the Air
Force. She had just been assigned to duty that she learned
would require frequent travel and necessitate working long,
unpredictable hours. The parties agreed that Father should
have physical custody during the school year and Mother
should have physical custody during the summer. This
arrangement was implemented during A.S.’s first six years in
school. During that time, Mother’s career in the Air Force
continued to flourish. She was promoted to the rank of
major in 2000, and to lieutenant colonel in November 2005.
Between the time of the divorce and the commencement of
these proceedings, Mother’s duty posts included Los
Angeles, Korea, Washington, D.C., and Alaska. At the time of
the custody hearings now under appeal, mother was preparing
for a transfer to a staff officer’s job with Hicklar’s
European Command, a United States military base located in
Germany. Sometime before she began her seventh year of
school, A.S. expressed a desire to alter the previous
arrangement and live with her mother during the school year
and her father during the summer. Accordingly, on July 22,
2005, Mother filed a pleading entitled,
“Respondent/Mother’s Combined Verified Petition to Modify
Child Custody and Child Support; and, for Attorney’s Fees.”
Id. at 16.

The court conducted a hearing on Mother’s petition. Three
evidentiary sources were presented at that hearing on the
subject of custody: (1) Father’s testimony, (2) Mother’s
testimony, and (3) a Custody Evaluation Report submitted by
Dr. Richard Lawler. We begin by reproducing the “Summary
and Conclusions” section of Dr. Lawler’s report:

The only issue is the wishes of [A.S.]. Both parents can
do well parenting [A.S.], and I think [A.S.] would do well
no matter where she lives. The only question is how much
weight a court should give to the wishes of an 11 year old
at this point.

Ordinarily, I would not recommend putting much weight on
the wishes of an 11-year-old because of their typical
immaturity. However, I do think that [A.S.]’s wishes are
the normal wishes of a girl who is approaching
adolescence, and would like to spend more time at this
point with her mother. I do not find any serious negatives
in her relationship with her father, just a normal
desire to spend at this point more time with her mother.

I do think that [A.S.] is the type of child who will
thrive in whatever environment she is in. Tony has been
able to provide well for her, and there is nothing
problematical in her living circumstances with her father.
My impression is that Cindy, regardless of whether or not
she gets deployed, could provide well for [A.S.] also.
[A.S.] seems to be a flexible child, and I think she would
adapt well if she went to live with her mother, and I
think she would continue to do well if she remained with
her father.

From a strictly psychological standpoint, I cannot say
that there are any strong advantages or disadvantages to
[A.S.] being with one parent over the other parent. I
think that the court can safely make any decision that it
considers appropriate in this particular case, but the
psychological functioning of either of the parents or of
[A.S.] is not a factor that tends to push the decision in
one direction or the other.

Appellee’s Appendix at 7. Dr. Lawler’s report essentially
concluded both parties are fit parents, A.S. has good
relationships with both, and there was no reason the court
should refrain from awarding custody during the school year
to either parent. In other words, Dr. Lawler did not
recommend placement with one parent, as opposed to the
other.

The remainder of the evidence consisted entirely of
Father’s and Mother’s testimonies. Neither sought
school-year custody on the basis of the other parent’s
shortcomings. Essentially, the evidence to which they point
in support of their arguments was and is as follows: Father
notes that A.S. has lived with him during the school year
and attended the same school all of her life. A.S. has a
large and well-established group of friends, is well
integrated into the local community, and participates in
several extracurricular sports and other activities. Her
paternal grandparents live close by, she sees them on a
daily basis, and she has a particularly close relationship
with her paternal grandmother. Also, she is doing well in
school. Mother, on the other hand, pointed out that it was
and is A.S.’s wish to live with Mother. It was also noted
that A.S. is just beginning to enter puberty and would feel
more comfortable talking about all of the issues attending
that experience with her mother rather than her father.
Mother also testified that A.S. would be attending a
high-quality school if she lived with Mother in Germany,
and that A.S. would be able to participate in many of the
same activities that she would if she lived with Father.

At the close of evidence, the trial court entered an order
denying Mother’s motion to modify custody. But, that
characterization of the disposition is somewhat misleading.
Mother sought an order awarding custody of A.S. during the
school year to Mother, and that is precisely what the trial
court’s order accomplished. The court ordered that A.S.
would live with Mother during the school year, but in so
doing it noted that such did not require a modification of
the original custody provision in the Settlement Agreement
— hence the denial of that request.[fn1] Father
appeals the trial court’s order awarding custody to Mother
during the school year.

We begin by noting that this case comes before us in a
somewhat unusual legal posture. Mother filed a request to
modify the original custody order and that request was
denied. Yet, she asks on appeal that we affirm that order,
while Father urges us to reverse it. The trial court denied
the petition but granted the request for relief therein,
while stating that it did not constitute a modification of
custody. It is not surprising, then, that there is some
disagreement between the parties as to what standard the
trial court should have applied in considering Mother’s
request: the custody modification standard or the initial
custody determination standard. The difference is generally
important. See Hughes v. Rogusta, 830 N.E.2d 898
(Ind.Ct.App. 2005).

In an initial custody determination, both parents are
presumed equally entitled to custody, but a petitioner
seeking subsequent modification bears the burden of
demonstrating that the existing custody should be altered.
Id. Regardless of the setting, however, when custody rights
of the parents are determined, the best interests of the
child are the primary consideration. To that end, custody
conflicts are left to the trial court to resolve, Keen v.
Keen, 629 N.E.2d 938 (Ind.Ct.App. 1994), and are reviewed
only for an abuse of discretion. Nunn v. Nunn, 791 N.E.2d
779 (Ind.Ct.App. 2003).

In the instant case, the parties agreed in the Settlement
Agreement that at this point in her life, A.S. would live
with one parent during the summer, and the other during the
school year. Logistically speaking, and assuming both
parents wanted to spend significant parenting time with
A.S., this was the only realistic option, as Mother and
Father lived thousands of miles apart. When A.S. expressed
a desire to reverse the practice of living with Father
during the school year and Mother during the summer, that
option was consistent with the terms of the Settlement
Agreement and did not require a modification of the
original order. The court became involved only because the
parties could not agree on which of two custody options,
both of which were permissible under the Settlement
Agreement, would be implemented. Thus, the court in the
subsequent proceeding was not asked to modify the terms of
the agreement or alter the arrangement upon which the
parties had agreed, but instead to choose between two
alternatives permissible under that agreement. The
resulting order, then, cannot fairly be characterized as a
modification of the Settlement Agreement. Yet, this was
clearly not an initial determination of custody, either. It
was instead a dispute that could not be resolved merely by
consulting the terms of the Settlement Agreement. In short,
the court was called upon to perform the sort of task that
a dissolution court frequently is called upon to perform in
its continuing jurisdiction of matters stemming from a prior
dissolution order entered by the court. See, e.g., Fackler
v. Powell, 839 N.E.2d 165, 167 (Ind. 2005) (“a court that
issues a dissolution decree retains exclusive and
continuing responsibility for any future modifications and
related matters concerning the care, custody, control, and
support of any minor children”). What standard should it
have applied to Mother’s request for an alteration in the
parents’ past custody practices? Because this was neither a
modification of custody nor an initial custody
determination, we conclude the court centered its focus upon
the pivotal consideration — A.S.’s best interests.
We turn now to an examination of the evidence supporting
the trial court’s decision.

Most of the relevant factors placed before the trial court
are in equipoise. Both Mother and Father were loving and
good parents, and both wanted custody of A.S. during the
school year. The expert custody evaluator could not
recommend one over the other, concluding that each was a
good choice. Mother and Father both had good, stable
employment and were comfortably able to provide a good
standard of living for A.S. All of this is not to say,
however, that Mother and Father were similarly situated.
Father lived in Rising Sun, the small Indiana town where he
grew up. His parents lived nearby and enjoyed good
relationships with A.S. A.S. had attended school in Rising
Sun since she began kindergarten. She had many friends and
was involved in several activities and sports.

Mother, on the other hand, lived on or near military bases
and experienced fairly frequent relocations. If the trial
court awarded school-year custody to Mother, A.S. would
live with Mother in Germany. While there, A.S. would live
in comfortable housing and attend a good school. Although
the potential for anxiety caused by virtue of moving to a
foreign country might otherwise be a cause for concern, it
is not so here.

During her summers with Mother, A.S. has lived in a variety
of places, including Alaska, Illinois, California, Korea,
and Virginia. It is undisputed that A.S. is an outgoing
child who adjusts well in new places. In fact, she
indicated to Dr. Lawler that “she liked seeing new places.”
Appellee’s Appendix at 5. Thus, what might otherwise be
regarded as potentially a negative aspect of living with
Mother (e.g., new places, lack of continuity and stability)
might in this case be considered a positive (e.g., the
opportunity to see new places in a safe and secure
environment). Dr. Lawler opined that A.S. is “flexible”,
capable of adapting to new situations, and “the type of
child who will thrive in whatever environment she is in.”
Id. at 7. The evidence indicated that A.S. had many friends
in Rising Sun. It was also universally acknowledged that
A.S. is a gregarious child who meets people easily. In
fact, A.S. reported that although she had spent
comparatively little time with her mother in Alaska, “she
had already made some friends” there. Id. at 5.

Finally, and perhaps most importantly, we consider the fact
that A.S. has arrived at the doorstep of adolescence, and
the onset of puberty. This is a time of change and growth,
not only emotional and social, but physical as well.
Mother, the trial court, Dr. Lawler, and A.S. herself, all
regarded this as significantly favoring placement with
Mother. When asked whether she had concerns about A.S.
“going through puberty without her mom around”, Transcript
at 23, Mother responded:

Yes, absolutely. And those are some of the reasons that I
think she’s better off with me at this stage of her life,
because she is going to start going through puberty and
she’s already asked me some questions and I’m not sure
she’s asked her father. And I think that only another
female could answer some of those questions.

Id. Mother explained that A.S. was “really comfortable”
talking with Mother. Id. For her part, A.S. told Dr.
Lawler, “it was easier to talk with her mother about
puberty issues.” Appellee’s Appendix at 5. According to Dr.
Lawler, “[f]or that reason, she described her mother as the
only person that she can talk to about everything,” id., and
she “would like to spend more time at this point with her
mother.” Id. at 7. It was presumably with these things in
mind that Dr. Lawler observed in the concluding section of
his report that A.S.’s desires to live with her mother “are
the normal wishes of a girl who is approaching
adolescence.” Id. at 7. Father addressed this question by
noting that he believed he could communicate with A.S. on
such subjects, and that his mother, who enjoyed a “very,
very, very close” relationship with A.S., Transcript at
106, “absolutely” “would or could discuss issues like
puberty and so forth” with A.S. Id. at 107. Father
acknowledged, however, that he would be “shocked —
if a same sex child would not be more comfortable talking
to the same sex parent” about such things. Id. at 95.

All of which brings us to Father’s primary legal argument,
which is that the trial court placed too much emphasis on
A.S.’s wishes on the subject. No one disputes that A.S. has
expressed a preference to live during the school year with
her mother. Father contends the trial court placed too much
emphasis on A.S.’s desire in view of Ind. Code Ann.
§ 31-14-13-2(3) (West, PREMISE through 2006 Second
Regular Session). That statute provides that one of the
factors courts should consider in deciding custody disputes
is “[t]he wishes of the child, with more consideration
given to the child’s wishes if the child is at least
fourteen (14) years of age.” We note first the statute does
not direct courts to discount entirely the wishes of
children under the age of fourteen. It merely provides that
a child’s wishes are to be given more weight in the court’s
balancing of factors if the child is at least fourteen
years. Thus, A.S.’s desire to live with Mother was entitled
to some consideration by the court. How much is
appropriate?

We agree that the trial court’s order might be interpreted
to reflect that the trial court considered only A.S.’s
wishes on the subject. In the only paragraph of the order
articulating any rationale for its decision, the court
stated:

That, in their agreement, the parties agreed that they
would have joint legal and physical custody of their
daughter — and that when she became school age, she
would live with one parent during the school year and the
other parent during summer vacation. There were no
criteria mentioned to determine which parent would have
physical custody during those periods. In an in camera
interview, the child expressed a desire to live with her
mother during the school year. Since she is soon to be
twelve (12) years old and has lived with her father during
all school years to date and primarily with her mother
during summer vacations, the Court finds that the
child’s desire to reverse that arrangement should be
approved and that, in so doing, does not require a
modification of the Settlement Agreement.

Appellant’s Appendix at 8. Although the court cited only
A.S.’s wishes in announcing its decision, we believe A.S.’s
preference on the matter was not the only criteria
considered. In fact it appears that all relevant facts and
circumstances were placed before the court, either through
the testimonies of Father and Mother or through Dr.
Lawler’s report.

With all of the foregoing “data”, the trial court was
called upon to decide which placement would be in A.S.’s
best interests. The evidence strongly suggests that A.S.
would do well regardless of which parent was granted
school-year custody. Both parents are responsible people
and conscientious and loving parents. Both enjoy close
relationships with A.S. Placement with Father would achieve
stability and continuity. Placement with Mother would
permit A.S. to travel to far-off places, meet new people,
and enjoy different experiences. Everyone seems to agree
that A.S. is equipped to handle both settings with equal
alacrity. It would be as incorrect to characterize these
factors as unimportant as it would be to suggest that the
trial court ignored them. They are important, but they are
in equipoise. They do not tip the balance one way or the
other with respect to which parent should be awarded
school-year custody. So, the trial court proceeded to the
factors that render placement with Mother preferable to the
alternative, even if just barely. Those factors are, of
course, A.S.’s impending adolescence and her wish to live
with her Mother. In fact, we believe the two are closely
related and may be restated as one, i.e., A.S. wants to
live with her mother in large part because A.S. is entering
puberty.

This case is as good an illustration as any of the reason
that we accord latitude and deference to a trial court’s
custody determinations. See Nienaber v. Marriage of
Nienaber, 787 N.E.2d 450 (Ind.Ct.App. 2003). Considering
the sensitive and subtle nature of the factors to be
considered in this case, the ability to speak with and
observe the principals was of considerable value in making
the decision. In these respects, the trial court was far
better situated than this court to perform the necessary
personal and interpersonal evaluations, and weigh the
competing considerations. Upon sifting through the evidence
presented by Mother and Father, the court decided it would
be in A.S.’s best interests to live with her mother during
the school year. We cannot say that conclusion is clearly
against the logic and effect of the facts and circumstances
before the trial court, or the reasonable inferences drawn
therefrom. Pawlik v. Pawlik, 823 N.E.2d 328 (Ind.Ct.App.
2005).

Judgment affirmed.

KIRSCH, C.J., and RILEY, J., concur.

[fn1] The order stated, in relevant part,

In an in camera interview, the child expressed a desire
to live with her mother during the school year. Since she
is soon to be twelve (12) years old and has lived with her
father during all school years to date and primarily with
her mother during summer vacations, the Court finds that
the child’s desire to reverse that arrangement should be
approved and that, in so doing, does not require a
modification of the Settlement Agreement.

Appellant’s Appendix at 8.