APPEAL FROM THE BARTHOLOMEW JUVENILE COURT, The Honorable Curtis L. DeClue, Judge, Cause No. 86-CJ-377.
Neal, J., Ratliff, C.j. and Robertson, J. Concur.
Intervenor-appellants, Lloyd and Liz Beyers (the Beyers), appeal the judgment of the Bartholomew Juvenile Court which granted permanent custody of Larry Douglas Fox, Jr. (Doug) to Larry Douglas Fox, Sr. (Fox), after finding Fox to be the natural father of Doug.
Fox, who was born in 1948, graduated with honors from Purdue University and is employed as a mechanical engineer by Cummins Engine Company, where he earns in excess of $40,000.00 per year. Although he was still married to his first wife, Fox began a relationship with Joyce Beyers (Joyce) in 1970. This relationship produced Doug, who was born on April 8, 1973. Following the birth Fox lived with Joyce and Doug for only two or three months in 1973, but after his marriage to his first wife was dissolved in 1974, he lived with Joyce and Doug from July 1974 to early 1977. Fox and Joyce never married and, after they separated in early 1977, Joyce retained custody of Doug, although Fox continued to see Doug on weekends and school vacations, and consistently contributed financially to his support. Despite the fact that Fox married his current wife, Darlene, then a high-school sophomore, in 1977, he resumed his relationship with Joyce. Their stormy affair continued until February 24, 1986, when Joyce obtained a temporary restraining order against Fox because she feared physical harm from him. On March 29, 1986, Joyce drowned when she fell from a boat piloted by Fox. An investigation was conducted into the circumstances surrounding her death.[Footnote 1] After Joyce's death Doug lived with the Beyers, his aunt and uncle.
On April 22, 1986, Fox filed a paternity petition in Bartholomew Juvenile Court, seeking to be established as Doug's natural father and requesting custody of Doug. The Beyers received notice of Fox's petition the next day, and a hearing on the matter was scheduled for June 6, 1986. On May 2, 1986, the Beyers filed a petition for appointment as Doug's guardians in Lawrence Circuit Court, their and Doug's county of residence. On May 14, the Beyers and Doug filed their consent to the guardianship appointment, waiving notice of a hearing. The guardianship hearing was held that same day, and the order appointing the Beyers as Doug's guardians was also entered on May 14. Fox was not given notice of the guardianship proceeding, but upon learning of it filed a Motion to Intervene. The Beyers then entered their appearances as intervenors in the paternity proceeding. They also moved to transfer the paternity proceeding to Lawrence Circuit Court, contending that it was the county of preferred venue to the exclusion of Bartholomew County. This motion was denied. The Beyers then requested that the Bartholomew Juvenile Court confine its consideration of the issues to the question of paternity, and defer to the Lawrence Circuit Court on the question of custody, inasmuch as Fox had intervened in the guardianship proceeding. This motion was also denied.
A hearing on the paternity petition was held on June 16, 1986. Fox testified that he had maintained a close relationship with Doug since his birth, that Doug enjoyed a close relationship with Fox's current spouse, Darlene, and Travis, the son of Fox and Darlene, and that he, Fox, had the means to provide a comfortable home for Doug. Darlene, Fox's brother, and Christina Fox, Fox's 20-year-old daughter from his first marriage, all testified as to Fox's fitness as a parent. There was no evidence that Fox had ever mistreated Doug. However, the evidence also showed that in 1973 Fox was charged with two counts of assault and battery with intent to kill. The charges resulted from Fox having wounded two men with his .44 magnum pistol, which ended a fight Fox's brother had had with the two men. Fox pleaded guilty to one count of aggravated assault and battery and one count of assault and battery, for which he served a 90-day imprisonment followed by five year's probation. Fox admitted being in fights with two other men, striking Joyce, and shooting his television once when it would not work. He even admitted to having tattooed his name on the buttocks of both Joyce and Darlene. He also was aware of the February 1986 temporary restraining order and the investigation then being conducted concerning Joyce's death. According to Fox, Joyce and he had gone boating, she had consumed five or six beers, and she had fallen overboard and drowned, despite his attempts to rescue her. Lloyd Beyers and his parents then testified as to his, Lloyd's, fitness to be Doug's guardian, and they also testified negatively as to Fox's fitness as a parent.
On June 23, 1986, the trial court entered its findings of fact. It found Fox to be Doug's natural father and that there had been no showing either that Fox was not a suitable and proper person to have custody of him or that it was in Doug's best interest to be placed with the Beyers. Given the "strong presumption" that a child should be in the custody of his natural parents, the trial court granted temporary custody of Doug to Fox, pending the results of a welfare department home study and an in-camera interview of Doug. Record at 62.
The in-camera interview was conducted on July 3, 1986. The results of the home study were filed on August 6, 1986, the welfare department recommending that Doug remain in Fox's custody. On August 8, 1986, the trial court, having considered the evidence presented at the hearing, the home study, and its interview of Doug, granted permanent custody of Doug to Fox. The trial court also denied the Beyers' Petition for Additional Hearing, which they had filed in hopes of presenting further evidence. The Beyers then instituted this appeal. The oral argument in this cause also disclosed that, during the pendency of this appeal, the Beyers filed two petitions to modify custody. The first one, based on the indictment, was denied and no appeal was taken from that ruling. The trial court did not rule on the second petition. Instead, it certified to this court the question of whether a trial court can entertain a custody modification petition during the pendency of an appeal from the original custody order.
Presented for our review are the Beyers' contentions that the ...