Family Law Case Review

Case: Diane Werner v. Gregory Werner

Case Summary by Mike Kohlhaas, Bingham McHale LLP (with thanks to Jared Sunday)

HELD: Mother waived argument as to the standard used when determining whether to modify custody and the trial court’s resulting findings were sufficient to support its judgment under the “best interests of the child” standard.

FACTS AND PROCEDURAL HISTORY: Mother and Father were married in 1999 and there were two children born of the marriage.  Mother filed a petition to dissolve the marriage in 2008.  Mother initially resided with Father in the marital residence while the dissolution was pending.  Mother then filed a notice of intent to relocate with the children approximately 35 miles away.  Father objected and a hearing was held.  The trial court issued an order the following day, permitting Mother to relocate with the children, providing Father with parenting time, and appointing a GAL. 

The parties agreed on all aspects of the dissolution other than physical custody.  After the final hearing, the trial court issued its decree, which stated in pertinent part that the children were to reside with Mother through the end of the 2008-09 and 2009-10 school years, with Father having physical custody for the summers.  The trial court also called for a review hearing for July/August of 2010 to review the terms of the custody arrangement and stated that the determination of custody at that hearing would be governed by the “’best interests’ test, as opposed to the standard which governs the modification of custody orders.”  Neither party objected.

As the review hearing began, the trial court reiterated its intention to utilize the ‘best interests’ test.   The trial court then issued extensive findings and granted physical custody to the Father.  Mother appealed.

The Mother’s first argument was that the court applied the wrong standard when determining custody – best interests of the child standard instead of best interests plus a substantial change in a factor outlined under Ind. Code 31-17-2-8.  The Court of Appeals determined that Mother waived this argument by not objecting to the  court’s announcement to use the ‘best interests’ standard in both the dissolution decree and at the beginning of the review hearing.  The Court also rejected Mother’s assertion that the use of the ‘best interests’ standard constituted fundamental error.

Mother’s second challenge was that the trial court’s detailed findings and judgment were clearly erroneous.  As this argument was an invitation to reweigh evidence and assess witness credibility, the Court refused to do so and affirmed the judgment.

The Court noted that it did not condone the trial court’s departure from established statutory procedures when modifying custody and strongly discourage similar departures in future cases.  However, the Court could not say that their review of the record left them with a “firm conviction that a mistake ha[d] been made in this case.”

Judgment affirmed.


Judge Kirsch dissented from the majority on the grounds that the failure of the parents to object to the incorrect standard being used could not operate as a waiver of the children’s interests in utilizing the correct standard and that the legislature directed that custody modification could only occur upon the showing of substantial change in one of the enumerated factors.

To view the text of this opinion in its entirety, click here: Diane Werner v. Gregory Werner

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