From the Perry circuit Court, J. David Huber, Judge.
Lewis, C.j. Arterburn, Hunter and Mote, JJ., concur. Jackson, J., Dissents.
This is an appeal from the Trial Court's order sustaining appellee's motion for a new trial. Appellee
and his wife were divorced; appellee, the natural father, was awarded custody of his son, the child involved in this action.
On October 16, 1965, the Perry Circuit Court issued an order of adoption granting the petition filed by the appellants (the maternal grandparents), thereby making them the adoptive parents of said child.
On January 27, 1966, appellee filed a complaint for Writ of Habeas Corpus wherein he alleged that he was the natural parent of the child and was entitled to custody by right of a divorce decree. He attacks the adoption proceedings in his reply to appellants' return on the grounds that the adoption proceedings were false, fraudulent; that he had no notice; that he did not consent; and that he had not abandoned the child.
After the trial, the Court, on June 4, 1966, rendered judgment denying the appellee custody of the child and upheld the validity of the adoption. As a result, appellee filed a motion for a new trial. This motion was sustained by the Trial Court for the reason as set out in its Nunc Pro Tunc Entry, the pertinent part of which reads as follows:
". . . that error of law occurred at the trial in that the Court heard evidence only on the issue as to the validity of the adoption proceedings and did not permit or hear evidence on the distinct issue as to the custody of the child herein as raised by plaintiff's complaint."
On appeal, appellants raise two errors:
1. That the Trial Court erred in sustaining appellee's motion for new trial.
2. That the Trial Court erred in granting a new trial as to all issues, but should have limited it to the separate and distinct issue of custody only.
At trial, the appellants unquestionably proved that their adoption of the child was valid.
"On appeal we presume the record of the trial court is free from harmful error. Johnson v. Smith (1931), 203 Ind. 214, 221,
176 N.E. 705 supra. If there is evidence to support the finding in a habeas corpus proceeding we will not disturb the judgment. Mahan v. Hendricks, (1912), 181 Ind. 630, 99 N.E. 418. It is only when there has been clear abuse of discretion by the trial court that the judgment will be set aside. Thornton v. Devany (1944), 223 Ind. 47, 57 ...