Downey v. Muffley

• Decision Date: 15 May 2002
• Docket Number: No. 50A03-0106-CV-197.,50A03-0106-CV-197.
• Citation: 767 N.E.2d 1014
• Parties: Vanessa S. (Muffley) DOWNEY, Appellant-Respondent, v. Todd A. MUFFLEY, Appellee-Petitioner.
• Court: Indiana Appellate Court

767 N.E.2d 1014

Vanessa S. (Muffley) DOWNEY, Appellant-Respondent, v. Todd A. MUFFLEY, Appellee-Petitioner.

No. 50A03-0106-CV-197.

Court of Appeals of Indiana.

May 15, 2002.

Sean C. Lemieux, Indiana Civil Liberties Union, Indianapolis, IN, Attorney for Appellant.

OPINION

KIRSCH, Judge.

Vanessa S. (Muffley) Downey ("Mother") appeals the trial court's order on Todd A. Muffley's ("Father") Petition to Modify Custody. In particular, Mother appeals that portion of the order incorporating the Marshall Superior Court's standard parenting guideline that prohibits the presence of an unrelated adult member of the same sex from spending the night with the parent while in the presence of the children if that person is involved in a homosexual relationship with the parent. She raises two issues for our review, one of which we find dispositive: whether the trial court has the authority under Indiana law to prohibit a custodial parent from living with a domestic partner as part of the court's local standard parenting guideline when there has been no finding of harm to the children.¹

We reverse.

FACTS AND PROCEDURAL HISTORY

Mother and Father have two children, K.M., who is nine years old, and P.M., who is eight years old. The parties divorced on December 13, 1996. Pursuant to their divorce settlement agreement, the trial court awarded the parties joint legal and physical custody of their two children. Mother filed a petition to relocate with the children to Florida and, in response, Father filed his Petition to Modify Custody. Mother then filed an amended notice of intent to relocate to Indianapolis instead of Florida.

Father filed his Motion for Children to Remain with Petitioner and for Visitation Restrictions, seeking to keep the children in his custody until the trial court made a ruling on the custody modification and requesting that the court impose its standard visitation guideline that prohibits parents from allowing an unrelated adult from spending the night when the children are present. Mother is a lesbian and had a same-sex domestic partner.

The trial court on August 18, 2000, conducted an emergency hearing on the imposition of visitation restrictions, on the issue of the children remaining with Father during the pendency of the proceedings, and on the issue of Mother's request to relocate to Indianapolis. Following the hearing, the trial court denied Father's motion for the children to remain with him and granted Mother's request to move to Indianapolis with the children. From the bench, the court also informed Mother of its intent to impose the standard restriction prohibiting unrelated adults from spending the night while the children were present with Mother, even though the court acknowledged that the restriction as then written only applied to adults of the opposite sex.

Subsequently, the trial court following a hearing to determine the modification of custody, entered an order that found that the only change in circumstance was Mother's move to the Indianapolis area for the purpose of securing employment. In its findings the court noted that "Father has not established by a preponderance of the evidence that there have been a change of circumstances to such an extent that it is now in the best interests of the minor children that custody be changed." Appellant's Appendix at 10. The court further ordered the parties to abide by its order of March 27, 2000 whereby the Marshall Superior Court No. 1 adopted standard parenting time guidelines, which included the following restriction that prevents Mother from living with a same-sex domestic partner while she has physical custody of the children:

2. PARENTAL LIVING ARRANGEMENTS. Neither parent shall allow an unrelated adult member of the opposite sex, or of the same sex if they are involved in a homosexual relationship with that parent, to spend overnight with them while a child is in their care.

Id. at 12.

Mother now appeals this portion of the trial court's order that prohibits her from cohabitating with a same-sex partner while living with her children.

DISCUSSION AND DECISION

Initially, we note that Father, as Appellee, failed to submit an appellate brief on his behalf. In such a case, Mother, as the Appellant, may prevail by making a prima facie showing of reversible error. D.H. v. J.H., 418 N.E.2d 286, 289 (Ind.Ct.App.1981). It is within this court's discretion to reverse the trial court's ruling if the appellant makes such a showing. Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999). If the Appellant is unable to meet this burden, we will affirm. Id. This rule was designed to protect the court and to relieve us of the burden of controverting the arguments advanced for a reversal where such a burden properly rests with the Appellee. Id. However, because we reach the issue on the merits, we decline to apply this standard.

In all visitation and child custody controversies, courts are required to give foremost consideration to the best interests of the child. Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App.1998), trans. denied (1999) (citing IC XX-XX-X-X; Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind.Ct.App.1992), trans. denied); Summerville v. Summerville, 679 N.E.2d 1344, 1348 (Ind.Ct.App.1997)

. In reviewing a trial court's resolution of a visitation or custody dispute, we reverse only when the trial court manifestly abused its discretion. Marlow, 702 N.E.2d at 735; Teegarden v. Teegarden, 642 N.E.2d 1007, 1008 (Ind.Ct.App.1994). If there is a rational basis for the trial court's determination, then no abuse of discretion will be found. Marlow, 702 N.E.2d at 735. Further, we may not reweigh the evidence or judge the credibility of the witnesses. Id.²

In resolving the question presented, it is appropriate to review cases in which restrictions have been imposed upon both visitation and custody. In D.H. v. J.H., the court was confronted with the question of whether the homosexual activity of a mother required a custody award of the children to the father. In a case of first impression, the court provided the following guideline: "[W]e believe the proper rule to be that homosexuality standing alone without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child." 418 N.E.2d at 293. The court held that because there was no evidence of any homosexual activity of the wife in the presence of the children and no evidence of any adverse effect upon the children based upon her homosexuality, the trial court's custody award to the father could not be upheld solely upon that basis. Id.

In Teegarden, 642 N.E.2d at 1009, this court also held that "homosexuality standing alone without evidence of any adverse effect upon the welfare of the children does not render the homosexual parent unfit as a matter of law to have custody of the child." The court opined that there was no evidence of homosexual activity by the mother in the presence of the children and no evidence of any adverse effect upon the children because of her sexual preference. In citing the rule announced in D.H. v. J.H., the court determined that there was no evidence of the "existence of a present adverse effect upon the children." Id.

The Teegarden court next addressed the imposition of the conditions placed upon the custodial mother that restricted her homosexual activity. As part of its final order, the trial court imposed the following conditions: "that [Mother's] custody of her children is conditioned upon her (1) not co-habitating with women with whom she is maintaining a homosexual relationship; and (2) not engaging in homosexual activity in front of the children." Id. at 1008. In addressing this issue, the court cited the rationale and holding in Pennington, 596 N.E.2d at 305, where it was determined that the trial court did not abuse its discretion in imposing an overnight visitation restriction upon the father who was homosexual. In that case, evidence concerning the father's homosexual activity provided a rational basis for placing the restriction on visitation. In applying Pennington to the case before it, however, the Teegarden court stated:

Here, the trial court found specifically that Stepmother failed to prove Mother's homosexuality rendered her an unfit mother for purposes of custody. Furthermore, as was held in D.H. v. J.H., supra, 418 N.E.2d at 293, and as noted by the trial court in its findings of fact, homosexuality standing alone without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child. Accordingly, the trial court found specifically that Mother's homosexuality did not have an adverse effect on I. and S. Furthermore, the trial court found that `neither boy currently appears to be particularly traumatized by their mother's sexual orientation,' R. at 209, despite the fact they had seen Mother kissing and hugging her partner.

Had the evidence revealed that Mother flagrantly engaged in untoward sexual behavior in the boys' presence, the trial court may have been justified in finding her to be unfit and, accordingly, awarded custody to Stepmother. However, without evidence of behavior having an adverse effect upon the children, we find the trial court had no basis upon which to condition Mother's custody of her sons. We therefore find the trial court abused its discretion, and reverse that portion of the custody order which imposes conditions upon the award of custody to Mother.

Id. at 1010 (footnote omitted) (emphasis added).

In Clark v. Madden, 725 N.E.2d 100 (Ind.Ct.App.2000), the trial court awarded sole legal custody to a father who was visually impaired and ordered the mother and father to share physical custody of their child. However, as part of its order, the trial court imposed the requirement that father "must be accompanied by another ...