D. H. v. J. H.
| Decision Date | 30 March 1981 |
| Docket Number | No. 1-880A208,1-880A208 |
| Citation | 418 N.E.2d 286 |
| Parties | D. H., Petitioner-Appellant, v. J. H., Respondent-Appellee. |
| Court | Indiana Appellate Court |
Eric N. Allen, Free, Brand, Tosick, Van Winkle & Allen, Greenfield, for petitioner-appellant.
D. H. (wife) appeals from that portion of the decree of dissolution of marriage entered by the trial court which awarded the care and custody of the three minor children of the parties to J. H. (husband). We affirm.
The parties, D. H. (wife) and J. H. (husband) were married on September 10, 1966, and separated on November 1, 1979. They are parents of three children, namely: D., an eleven year old daughter; J. D., a nine year old son; and J. J., an eight year old son. Wife filed her petition for dissolution of marriage on January 8, 1980 and the decree of dissolution which, inter alia awarded custody of the children to husband with specified visitation privileges granted to wife, was entered on March 22, 1980.
Much of the testimony at the trial involved the alleged homosexual relationship of wife and two young ladies, K. B. and K. R. Wife was never asked, either on direct or cross-examination, about her homosexual activities with K. B. or K. R., or either of them. However, both K. B. and K. R. testified that they had engaged in homosexual activity with wife. In addition, certain greeting cards and letters from K. B. and K. R. was permitted to testify, over wife's objection, that the daughter of the parties told her that her mother (wife) and K. B. were always in bed together hugging each other. This statement is the only evidence of any alleged sexual misconduct occurring in the presence of any of the children.
K. R., as well as from another young woman, K , and being husband's exhibits H through S, both inclusive, were admitted in evidence over wife's objection. Further, presumably to support an inference of a homosexual relationship between wife and K. B., husband testified that he observed the two of them swimming nude in the parties' pool. These occasions were late at night when the children were in bed. Husband also testified concerning an occasion when wife and K. R. were hugging each other in wife's home and introduced into evidence photographs which he took of this activity. It was not established that the children were present, husband testifying that they were probably outside
The evidence was in conflict concerning the quality of care and degree of attention given to the children by the parents, as well as to the adequacy of housekeeping standards. Wife's evidence portrayed a mother actively participating in sports activities with her children, helping them with schoolwork, preparing meals, doing laundry, taking them to church, and taking them for necessary tutoring and therapy. However, wife's evidence did indicate wife was not a model housekeeper in that dishes were left unwashed in the sink, and laundry was left lying on furniture rather than put away. Wife's evidence presented a father who had little concern for his children, who did not do necessary home maintenance, and who was ill-tempered.
On the other hand, husband's evidence portrayed a father who prepared meals for his children because their mother was out running around, helped children with lessons, took them to tutors and therapy sessions, and generally was a concerned parent. Husband's evidence further showed that wife left dirty dishes lying around until food particles on the dishes molded. Also, wife often did laundry only when a particular item of clothing was needed and left laundry on the furniture instead of putting it away. Further testimony indicated that one room in the house was full of papers and debris to the point of rendering the room unusable.
Based upon this evidentiary background, the trial court entered the dissolution decree awarding custody of the three minor children to the husband. Wife appeals from the custody award.
1. Did the trial court indulge in an improper presumption in favor of the husband concerning custody of the children because of the wife's homosexuality?
2. Was it error for the court to admit, over objection, evidence of wife's homosexual activities, since such activities are not one of the statutory criteria for determining child custody?
3. Was admission in evidence, over objection, of respondent's (husband's) Exhibits H through S, reversible error?
4. Was it reversible error to admit into evidence, over objection, the testimony of K. R. concerning statements made by D., the parties' daughter, and by another female acquaintance of wife?
5. Was the awarding of custody of the children to the husband an abuse of the court's discretion?
Before proceeding with our discussion and decision on the specific issues raised in this appeal, we note that the appellee (husband) has not favored us with an appellee's brief. In such a case, wife (appellant) may prevail by making a prima facie showing of reversible error. Costanzi v. Ryan, (1978) Ind.App., 370 N.E.2d 1333; Michels v. Young Metal Products, Inc., (1971) 148 Ind.App. 502, 267 N.E.2d 572 trans. den.; Wertzberger v. Herd, (1957) 128 Ind.App. 85, 146 N.E.2d 115.
Wife first contends the trial court indulged in an improper presumption in favor of husband in awarding custody of the children to him in violation of the statutory admonition that custody shall be determined in accordance with the best interests of the child with no presumption favoring either parent. Ind.Code 31-1-11.5-21. Wife says the court presumed husband to be the proper custodian of the children because of her alleged homosexuality. We believe wife misconstrues the statutory provision that "(i)n determining the best interests of the child, there shall be no presumption favoring either parent." IC 31-1-11.5-21. The purpose of this statutory provision prohibiting such presumptions is to overcome the effect of decisions in some old cases holding that "(t)he father has the legal right to the custody of his children, unless it is clearly shown that he is unfit ..." Conn v. Conn, (1877) 57 Ind. 323, or the maternal preference rule followed in many cases wherein the mother has been given preference particularly as to custody of children of tender years or female children. 24 Am.Jur.2d Divorce and Separation, § 785 (1966). Annot., 70 A.L.R.3d 362 (1976). 2 In other words, the statutory prohibition proscribes the awarding of custody to one parent simply because the court presumes one parent to be the better custodian of the children, e. g., giving custody to the father because it is his right, or giving custody to the mother merely because of the maternal preference rule. Wife fails to demonstrate that the court indulged in any such forbidden presumption. Rather, she says the trial court presumed the husband to be the proper person to have custody of the children because of her alleged homosexuality. What wife really is doing is saying the court erred in basing its custody decision upon her homosexuality because that alone is an insufficient basis for the custody decree.
The issue of the wife's homosexual activity is central to these two issues. We must, therefore, determine whether or not homosexuality of a parent renders such parent unfit per se to have custody of his or her children. Wife directs our attention to the statutory criteria to be considered by the court in determining custody. IC 31-1-11.5-21(a) provides:
"(a) The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there shall be no presumption favoring either parent. The court shall consider all relevant factors including:
(1) The age and sex of the child;
(2) The wishes of the child's parent or parents;
(3) The wishes of the child;
(4) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(5) The child's adjustment to his home, school and community; and
(6) The mental and physical health of all individuals involved."
Wife argues that there is neither statutory nor case law in Indiana making homosexual activity a criteria for determining child custody, and that such activities are not specified as one of the statutory criteria in IC 31-1-11.5-21. Thus, she says, it was error to admit any evidence of her homosexual activities.
To the extent wife relies upon the lack of a specific reference to homosexuality of a parent in the statutory criteria for determining custody found in IC 31-1-11.5-21, she misinterprets the statute. The criteria listed there are not exclusive. The statute enjoins the court to "consider all relevant factors including" the six specified criteria. IC 31-1-11.5-21. Consideration of all relevant factors is not limited to those specifically enumerated.
In deciding these issues raised by wife we must, of necessity, deal with the question of the relevance of the evidence of wife's homosexual activity. Wife contends since there was no competent evidence of any such activity in the presence of the children, evidence of her homosexual behavior was irrelevant and inadmissible. We disagree. It has been held that marital misconduct, including adultery, is a pertinent although not controlling factor in determining which of the parents should be awarded custody of the children. Tapal v. Tapal, (1969) Tex.Civ.App., 448 S.W.2d 560; Claughton v. Claughton, (1977) Fla.App., 344 So.2d 944. See also: DiStefano v. DiStefano, (1978) 60 A.D.2d 976, 401 N.Y.S.2d 636 (). But see: J. B. v. A. B., (1978) W.Va., 242 S.E.2d 248 (...
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