M.S. v. C.S.
| Decision Date | 07 December 2010 |
| Docket Number | No. 03A01-1003-DR-140.,03A01-1003-DR-140. |
| Citation | 938 N.E.2d 278 |
| Parties | M.S., Appellant, v. C.S., Appellee. |
| Court | Indiana Appellate Court |
J. Grant Tucker, Nathan P. Patterson, Jones Patterson & Tucker, Columbus, IN, Attorneys for Appellant.
Richard D. McGillivray, McGillivray Law Office, LLC, Columbus, IN, Attorney for Appellee.
The Bartholomew Superior Court vacated its previous order granting M.S. joint legal custody of and parenting time withS.S., a child born to C.S., M.S.'s former domestic partner. M.S. appeals and raises three issues, which we reorder and restate as follows:
We affirm.
M.S. and C.S. lived together in a same-sex relationship for more than ten years. During the relationship, C.S. was artificially inseminated with donor semen and gave birth to a daughter, S.S., in 2003. In August 2007, M.S. and C.S. sought to establish a legal relationship between M.S. and S.S. by filing a "Joint Petition to Determine Custody." In the petition, M.S. and C.S. agreed that they should have joint legal custody, with C.S. as the primary physical custodian, and that M.S. should have parenting time as agreed by the parties or, in the event that they could not agree, in accordance with the Indiana Parenting Time Guidelines.1 On September 5, 2007, the Bartholomew Superior Court entered an order providing for custody and parenting time as set forth in the petition.
On April 21, 2009, M.S. and C.S. ended their relationship after a heated argument during which M.S. physically attacked C.S. and threatened C.S.'s life in the presence of S.S. At a hearing held on May 4, 2009, the trial court concluded that it had had no legal basis to enter the September 5, 2007 order, and therefore voided the order without a request to do so by either party. On May 8, 2009, C.S. filed a "Revocation of Any and All Consents to Joint Custody of the Minor Child." M.S. subsequently filed a motion to reinstate the September 5, 2007 order and a motion to certify the court's May 4, 2009 ruling for an interlocutory appeal. At a hearing on November 5, 2009, the trial court reinstated the September 5, 2007 order, suspended M.S.'s parenting time, and set the matter for an evidentiary hearing.
The hearing was held on January 28, 2010, and at the conclusion of the evidence, the trial court ordered that M.S.'s parenting time was to remain suspended. Additionally, the trial court gave M.S.'s counsel until February 8, 2010, to file a trial brief supporting M.S.'s contention that she is entitled to joint custody and parenting time, and gave C.S.'s counsel time to file a response. On February 26, 2010, after reviewing the trial brief and response, the trial court issued an order vacating the September 5, 2007 order. M.S. now appeals.
It appears that the trial court entered findings and conclusions sua sponte. Thus, when reviewing the specific findings and conclusions thereon, we must first determine whether the record supports the factual findings, and then whether the findings support the judgment. Bryant v. Bryant, 693 N.E.2d 976, 977 (Ind.Ct.App.1998), trans. denied. On appeal, we will not set aside the findings or judgment unless they are clearly erroneous, and "due regard shall be given to the opportunityof the trial court to judge the credibility of witnesses.' " K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009) (quoting Ind. Trial R. 52(A)). We therefore consider only the evidence favorable to the judgment and the reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. Bryant, 693 N.E.2d at 977. A judgment is clearly erroneous when there is no evidence to support the findings, the findings do not support the judgment, or the trial court applies the wrong legal standard to properly found facts. K.I., 903 N.E.2d at 458.
However, because the trial court entered findings and conclusions sua sponte, the specific findings control only as to the issues they cover, and a general judgment standard applies to those issues on which the trial court has not found. Bryant, 693 N.E.2d at 977. We may affirm a general judgment on any theory supported by the evidence of record. Id. We review questions of law de novo. In re Paternity of E.M.L.G., 863 N.E.2d 867, 868 (Ind.Ct.App.2007).
M.S. argues that the September 5, 2007 order was properly entered pursuant to Indiana Code section 31-17-2-3 (2008) and that the trial court erred in concluding that C.S.'s withdrawal of consent to the custody and visitation arrangement was sufficient to vacate the September 5, 2007 order. C.S. responds that the September 5, 2007 order was properly vacated, not only because C.S. withdrew her consent, but because the order was void on its face.
M.S. first asserts that the "Joint Petition to Determine Custody" was properly filed under Indiana Code section 31-17-2-3, and that the resulting September 5, 2007 order was therefore properly entered and legally binding. The interpretation of a statute is a pure question of law and is reviewed under a de novo standard. Herron v. State, 729 N.E.2d 1008, 1010 (Ind.Ct.App.2000), trans. denied. In construing a statute, our primary goal is to determine and effectuate the legislative intent. Neal v. DeKalb County Div. of Family and Children, 796 N.E.2d 280, 284 (Ind.2003). "Statutes which relate to the same general subject matter are in pari materia and should be construed with reference to each other so as to harmonize and give effect to the provisions of each." Collins v. State, 275 Ind. 86, 100, 415 N.E.2d 46, 56 (1981).
Indiana Code section 31-17-2-3 provides that a child custody proceeding is commenced by:
Here, however, C.S.'s and M.S.'s "Joint Petition to Determine Custody" sought to establish a shared custody arrangement. We conclude that under the terms of Indiana Code section 31-17-2-3, the General Assembly did not intend to allow parents to establish joint custody with third parties by simply filing a joint petition with a trial court, because to do so would allow parents and third parties to circumvent the requirements of the Adoption Act.
Adoption creates a parent-child relationship between individuals who would not otherwise share such a relationship. Stepparent adoption allows a stepparent to adopt the biological child of his or her spouse without divesting the spouse of parental rights to the child. Ind.Code § 31-19-15-2 (2008). This court has interpretedthe stepparent adoption statute to allow a biological mother's children to be legally adopted by her same-sex domestic partner without divesting the biological mother of her parental rights. In re Adoption of K.S.P., 804 N.E.2d 1253, 1260 (Ind.Ct.App.2004); see also Mariga v. Flint, 822 N.E.2d 620, 626-28 (Ind.Ct.App.2005), trans. denied.
The General Assembly has set forth specific procedural prerequisites to adoption in the Indiana Code. For example, for a child born out of wedlock, an adoption petition may be granted only if a written consent to the adoption has been executed by the mother and, under certain circumstances, the father. Ind.Code § 31-19-9-1(a)(2) (2008).2 It is well established that adoption statutes are in derogation of the common law and must therefore be strictly construed as to all procedural requirements. J.M. v. M.A., 928 N.E.2d 230, 236 (Ind.Ct.App.2010); In re Petition of Gray, 425 N.E.2d 728, 730 (Ind.Ct.App.1981).
Indiana Code section 31-17-2-3 and the adoption statutes cover the same general subject matter and must therefore be construed together. To permit C.S. and M.S. to use Indiana Code section 31-17-2-3 to create parental and custodial rights to S.S. simply by filing a joint petition to do so would circumvent the public policy behind, and the procedural requirements of, the adoption statutes. We conclude that Indiana Code section 31-17-2-3 does not contemplate the creation of a shared custody arrangement between a parent and a nonparent, regardless of the consent of the parties. The original entry of the September 5, 2007 order was therefore erroneous.
M.S. next argues that the September 5, 2007 order was binding on the parties because they consented to its entry. In support of this argument, M.S. directs our attention to Tirey v. Tirey, 806 N.E.2d 360, 364 (Ind.Ct.App.2004), trans. denied, and Schueneman v. Schueneman, 591 N.E.2d 603, 611 (Ind.Ct.App.1992), for the general proposition that parties to a divorce are free to agree to the custody and support of their children, and such an agreement is binding on the parties once it becomes part of a court order, even if the trial court would otherwise lack the authority to order the parties to do as they agree.
However, these cases are readily distinguishable from the case before us. Both took place within the context of a divorce and relied on Indiana Code section 31-15-2-17 (2008), which provides that parties to a divorce may agree to the custody and support of their children, and if such an agreement is approved by the court, it becomes part of the divorce decree and "the parties shall be ordered to perform the terms[.]" Id. By its own terms, Indiana Code section 31-15-2-17 applies only in the context of a divorce, and is therefore inapplicable to the case before us.
M.S. suggests that we should extend Indiana Code section 31-15-2-17 to cover the situation before us because the...
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