McCURDY v. McCURDY No. 1-1076A203.
363 N.E.2d 1298 (1977)
Max L. McCurdy, Appellant, v. Barbara J. McCurdy (Now Barbara J. Garbourough), Appellee.
Court of Appeals of Indiana, First District.
June 28, 1977.
William C. Moyer, New Albany, for appellant.
STATEMENT OF THE CASE
This is an appeal from the trial court's denial of petitioner-appellant Max McCurdy's (Max) petition to allow visitation rights.
In April 1975 appellee Barbara J. McCurdy (Barbara) filed with the trial court her petition for the dissolution of her marriage to Max. At that time Max was in the county jail awaiting trial for one count of kidnapping and four counts of rape to which he ultimately pleaded guilty. When
After Max was sentenced to the state prison in Michigan City, Indiana, Barbara refused to allow the children to visit him. She was afraid that the children would be emotionally harmed by the knowledge that their father was in prison, so she told them that their father was institutionalized in a hospital. Barbara also feared that the children would be harmed emotionally by having to visit their father at the prison with its atmosphere of security searches, guards with guns, regulated schedules, etc.
When Max realized that Barbara would not allow the children to visit him at the prison he petitioned the court to modify the dissolution of marriage decree and compel Barbara to bring the children to see him on a regular basis, or in the alternative to allow his parents to transport the children from Jeffersonville to Michigan City to visit him. The court denied Max's petition on the basis that it would not be in the children's best interest to know at this point that their father was in prison and to have to be exposed to the complicated procedures and austere surroundings of a penal institution.
1. Is the judgment of the trial court supported by sufficient evidence?
2. Is the judgment of the trial court contrary to law?
DISCUSSION AND DECISION
Max appeals from a negative judgment. He had the burden of proof at trial, and the trial court found that he did not meet that burden. Max's contention that the evidence was insufficient to support the judgment cannot be reviewed on appeal. A negative judgment can only be attacked as being contrary to law. Link v. Sun Oil Co. (1974), Ind. App., 312 N.E.2d 126.
In determining whether a judgment is contrary to law we may not weigh the evidence nor consider the credibility of witnesses; it is only where the evidence leads to but one conclusion and the trial court has reached an opposite conclusion that the judgment will be disturbed as being contrary to law. See Pokraka v. Lummus Co. (1951), 230 Ind. 523, 104 N.E.2d 669.
Max has alleged that the judgment, wherein the trial court denied his petition to modify the dissolution of marriage decree and to allow his children to visit him in prison, was contrary to law. The statute which governs the visitation rights of a divorced parent who does not have custody of the children is IC 1971, 31-1-11.5-24 (Burns Supp. 1976) which provides as follows:
Max had been granted "reasonable visitation rights," but he was precluded from exercising those rights by his incarceration. In denying Max's petition to modify the decree the court explained its decision by saying:
In ruling upon Max's petition the court considered two things: (1) the fact that a parent's right of visitation should not be restricted unless it finds that the visitation might endanger the children's physical or emotional health, and (2) that which would be in the best interest of the children under the circumstances. The trial court balanced Max's right and desire to have his children visit him against the desirability of exposing the children to the prison atmosphere and to the knowledge that their father was a criminal.
Starke, supra, points out that visitation can be of mutual benefit for the parent and the child. In the case at bar it appears that the court and Barbara did not feel that the children would have been harmed so much by visiting and knowing Max, but that they would have been harmed by the atmosphere of the place of visitation and by the knowledge that their father was in prison rather than in a hospital, a truth which they will ultimately discover. Therefore, any mutual benefit which might have accrued to Max and his children by allowing them to visit him at the prison was precluded by the court's determination.
We hold that the trial court abused its discretion and that its decision is contrary to law. Although there are no Indiana cases in point on the issue presented before us, there is a Missouri case, M---- L---- B---- v. W---- R---- B---- (1970), Mo. App., 457 S.W.2d 465, 467, wherein the court stated:
We approve of the language in M---- L---- B----, supra, in that it recognizes the need and respects the right of a parent and child to share personal acquaintance, even though the circumstances are less than ideal.
In the case at bar there is testimony which indicates that the prison officials not only permit, but even encourage children to visit their fathers at the prison. There has been no equitable or legal reason presented in this case which would require that Max and his children should forego the mutual benefit that would be derived from occasional personal visitation with each other. Reasonable men would agree that it would be better for the children to learn the truth about their father now so that they can renew their acquaintance with him and adjust their lives in accordance with reality, rather than in accordance with a story which has been fabricated to insulate them from a truth which they will ultimately discover. Additionally, it is possible that the children's visits may have a rehabilitative effect upon Max.
We, therefore, direct the trial court to modify the dissolution of marriage decree by compelling Barbara to allow the children to occasionally visit Max in prison. In modifying the decree the trial court should attempt to space the times of visitation in such a way and at such intervals that the normal lives of the children will not be overly disrupted.
Judgment reversed and cause remanded to the trial court with instructions to modify the dissolution of marriage decree in a manner not inconsistent with this opinion.
ROBERTSON, C.J., concurs.
HOFFMAN, J., participating by designation, dissents with opinion.
I respectfully dissent from the majority opinion.
The trial judge, on May 7, 1976, made the following findings and judgment:
Pursuant to IC 1971, 31-1-11.5-24 (Burns Supp. 1976), the trial court found that visitation might endanger the physical health or significantly impair the emotional development of the children.
Testimony of two witnesses at the hearing described the reaction of Tamela to her father's arrest and incarceration in the county jail. "And she withdrawed. (sic) She cried an awful lot; she just didn't seem happy with anything. She didn't want to be with the other children, she didn't want to be with people; she more or less wanted to be off to herself. And when it would it would get dark, she wanted to make sure she was by her mother." It took about six months for Tamela to return to her cheerful self as a happy and content child, who likes to be with other children and have a good time.
Thus, there was ample evidence upon which the trial court based its finding and judgment.
Thus, there was no abuse of discretion by the trial court and its judgment should be affirmed.
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