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June 10, 1994


Appeal from the Circuit Court of Marion County. No. 87-D-130. Honorable Dennis E. Middendorff, Judge Presiding.

Chapman, Goldenhersh, Maag

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Gary and Teresa Kleiboeker were married January 3, 1981. A judgment of dissolution pursuant to a stipulation between the parties was entered on July 9, 1987, in which Gary was awarded custody of the two minor children of the parties, Nicholas, born June 6, 1983, and Jessica, born March 19, 1985. On July 28, 1992, Teresa filed a petition to modify custody alleging that:

"a. Petitioner [Gary] has resorted to the use of violence to punish the children and has on repeated occasions inflicted bruises upon the children.

b. Nicholas, the older child, has developed certain behavior problems in structured situations wherein he resorts to violence.

c. The children has [sic ] expressed desires to reside with the Respondent [Teresa]."

Following a hearing, Teresa was awarded custody of the children. Gary appeals the decision of the trial court, and we affirm.

Teresa Kleiboeker testified that she remarried in 1989 and has a good marriage. Following her divorce from Gary, Teresa attended nursing school and will soon be a licensed registered nurse. She currently works four days a week as an LPN, but she testified that if awarded custody she will work only two days per week.

Teresa testified that prior to her separation from Gary in October 1986, he had beaten her by striking her with his hands in the presence of the children. She recalled one instance when he became angry at J.R., his son from a prior marriage, and hit him with a belt. When Teresa attempted to stop Gary from hitting the boy, Gary hit her and threw her against a wall. Nicholas witnessed this episode. Teresa testified that Gary had exhibited similar acts of violence during the marriage, and she feared him.

Teresa testified that following the divorce Gary permitted her to visit the children only at his residence. This intimidated her because Gary often pawed at her, tried to touch her, and wanted her to engage in sex with him. Gary exhibited this conduct in front of the children. Teresa further stated that three weeks following the divorce Gary became angered when Teresa cut Jessica's bangs. Gary and Teresa were outside when he hit her arms, shoved her in the chest, and knocked her to the ground. Teresa testified that Gary was on top of her, and when he ran into the house, she grabbed a baseball bat and chased him, breaking a window of his home. As a result of that incident Gary obtained a restraining order against Teresa. She testified that since that time there have been no further acts of violence against her.

Prior to the divorce Gary disciplined the parties' children by slapping them on their hands. He also beat his older son with a belt. Teresa testified that since the divorce she has observed bruises on both children; on Nicholas on five occasions and on Jessica on three occasions. Teresa testified that she disciplines the children by spanking them with her hand or by prohibiting her son from playing video games. She testified that Nicholas has behavioral problems and fights over anything. Jessica vents her anger by hitting Teresa's four-year-old child.

Teresa testified that Gary will not listen to her or speak with her regarding problems with the children. She once suggested that they obtain counseling for Nicholas because he is depressed and angry, but Gary responded that psychiatry is for crazy people and that Nicholas is not crazy. In September of 1991, Nicholas's behavior was out of control; he would bang his head on the wall if he was upset. Gary advised Teresa to handle the situation as he does, by hitting Nicholas. Teresa also testified that Nicholas often hits Jessica and has threatened to kill her. Teresa believes that intervention is necessary to help her children become productive adults, and that she is more capable than Gary of providing the proper guidance that the children require.

At the hearing on modification of custody the court conducted an in camera examination of Nicholas. Nine-year-old Nicholas testified that when he gets in trouble at home his father sometimes talks with him or whips him. Nicholas testified that at various times his father has whipped him with his hand, a belt, a board, and a whiffle ball bat, and some of the whippings caused bruises. Nicholas testified that sometimes his father forces him and his sister to kneel on split wood for approximately 15 minutes. He further testified that sometimes his father makes him tickle his father's feet because his father says ...

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