Preview:

FOR PUBLICATION

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

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

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF ANTHONY J. SABO, Appellant-Petitioner, vs. CINDY K. SABO, Appellee-Respondent. ) ) ) ) ) ) ) ) ) )

No. 58A05-0608-CV-409

APPEAL FROM THE OHIO SUPERIOR COURT The Honorable John A. Westhafer, Special Judge Cause No. 58D01-9712-DR-23

December 29, 2006
OPINION - FOR PUBLICATION

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. 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: 3

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 4

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

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