Mariga v. Flint, No. 79A02-0407-CV-612.

• Docket Nº: No. 79A02-0407-CV-612.
• Citation: 822 N.E.2d 620
• Case Date: February 16, 2005
• Court: Court of Appeals of Indiana

822 N.E.2d 620

Julie MARIGA, Appellant-Respondent,
v.
Lori FLINT, Appellee-Petitioner.
In the Matter of the Adoption of Two Minor Children, Julie R. Mariga, Appellant-Petitioner,
v.
Lori Flint, Appellee-Respondent

No. 79A02-0407-CV-612.

Court of Appeals of Indiana.

February 16, 2005.

822 N.E.2d 622

Christopher D. Corrigan, Sean M. Pers, Withered Corrigan & Burns, Lafayette, IN, Attorneys for Appellant

Earl McCoy, The Law Office of Earl McCoy III, Lafayette, IN, Attorney for Appellee.

OPINION

BAKER, Judge.

This case requires us to examine the nature of parenthood. Whether a parent

822 N.E.2d 623

is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children's other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent. What we must focus on is the duties owed by a parent to her children, and those duties do not evaporate along with the relationship between the parents — indeed, those duties do not evaporate even if the relationship between parent and children deteriorates

Appellant-respondent Julie Mariga appeals from two orders: the Tippecanoe County Superior Court's (Superior Court) order granting appellee-petitioner Lori Flint's Petition for Child Support and the Tippecanoe County Circuit Court's (Circuit Court) order denying Julie's Petition to Vacate Adoption.¹

Julie argues that the Circuit Court erred in denying her petition to vacate the adoption. Specifically, Julie raises the following arguments with respect to the Adoption Order: (1) the Circuit Court did not have the authority to grant Julie's Petition for Adoption because the same-sex partner of a biological parent cannot be a stepparent pursuant to the stepparent adoption statute; and (2) the adoption was procured by fraud because Lori never intended for her relationship with Julie to be a lifelong commitment.

The Child Support Order requires Julie to pay child support for her adopted children, who are the biological children of Lori, Julie's ex-significant other. Specifically, Julie raises the following arguments with respect to the Child Support Order: the Superior Court did not have subject matter jurisdiction, and Lori failed to state a claim upon which relief may be granted because (1) the Circuit Court, rather than the Superior Court, had exclusive jurisdiction over the adoption and child support determinations; (2) the Superior Court previously dismissed Lori's petition with prejudice, preventing it from re-opening the matter; and (3) Lori's petition was improperly captioned and not verified.

Finding that this court has previously determined that a person may validly adopt the children of her same-sex partner without divesting the partner of any parental rights, that as a result Julie is a parent to Lori's children, and that the adoption was not procured by fraud, we affirm the judgment of the Circuit Court. Additionally, finding that the Superior Court properly exercised its jurisdiction over Lori's petition for child support and that she did not fail to state a claim upon which relief may be granted, we affirm the judgment of the Superior Court.

FACTS

Lori is the biological mother of a 16-year-old daughter and a 13-year-old son. In 1992, Lori and the children's biological father divorced, and, shortly thereafter,

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Lori and Julie began a romantic relationship. During the course of their relationship, Julie played an active role in the children's lives, attending their sporting events and school conferences

In 1996, Julie sought to adopt the children pursuant to Indiana's stepparent adoption statute. Ind.Code § 31-19-15-2. Julie and Lori decided that Julie should adopt the children for a variety of reasons, among them Julie's desire to provide financially for the children via life insurance, college assistance, and health insurance,² and a hope to solidify their family unit. Lori informed the court that Julie was her "life-time companion" and that she wished to "co-parent" the children with Julie. Appellant's Consol. App. p. 5.³ The children's biological father agreed to terminate his parental rights to permit Julie to adopt the children without terminating Lori's parental rights. The Tippecanoe County Circuit Court granted her petition for adoption on July 10, 1997, and the children's last names were officially changed to "Mariga-Morris." Appellant's App. p. 43-45. In November 1998, Lori and Julie separated, and since that time both children have remained with Lori.

In June 1999, Lori married a man, and, in January 2000, Lori had a third child with her new husband. On February 8, 2001, Lori filed a Petition to Establish Custody, Visitation, and Support (the "First Petition") in the Tippecanoe County Circuit Court. In June 2001, Lori moved to Georgia with her husband and children because her husband was promoted by his employer and transferred to Georgia. Julie did not challenge Lori's relocation with the children.

After her relationship with Lori ended, Julie visited regularly with the children. But, the visits became sporadic, and she began attending their school activities less frequently. After Lori and the children moved to Georgia, they rarely, if ever, communicated with Julie, and she did not visit them at all during that period of time. Furthermore, while Julie initially paid child support, pursuant to an informal agreement between the parties, she stopped making payments after Lori filed the First Petition. She continues to carry the children on her health insurance plan.

On November 9, 2001, Lori filed a voluntary motion to dismiss her first petition, which the Circuit Court granted on November 13, 2001.⁴ On December 10, 2001, Lori filed a Petition to Establish Custody, Visitation, and Support (the "Second Petition") in the Tippecanoe County Superior Court. Following the court's determination that the "home state" of Lori and the children was Georgia, and that, as a result, the State of Indiana did not have jurisdiction at that time over Lori's petition, the court dismissed the Second Petition without prejudice. Appellant's App. p. 17-18.

In October 2003, Lori and her second husband divorced and she moved back to Indiana with her three children. In December 2003, Lori filed a Petition to Re-Open in the Superior Court in light of the fact that Indiana had again become the

822 N.E.2d 625

"home state" for Lori and her children. The Superior Court granted her petition to re-open. On June 25, 2004, Julie filed an Amended Motion to Dismiss or Stay Proceedings. On June 28, 2004, the Superior Court denied Julie's motion and granted Lori's Petition to Establish Custody, Visitation, and Support. Among other things, the order requires Julie to pay child support in the amount of $290 per week and renders Julie responsible for 75% of the children's uninsured medical, optical, and dental expenses.

While Lori's petition to establish custody, support, and visitation was pending in Superior Court, Julie filed a Petition to Vacate Adoption in the Circuit Court on April 2, 2004. On June 25, 2004, Julie filed an Amended Petition to Vacate Adoption. After a hearing on September 1, 2004, approximately two months after the Superior Court entered its order requiring Julie to pay child support, the Circuit Court denied Julie's petition to vacate the adoptions.

Julie now appeals the Circuit Court's order denying Julie's petition to vacate the adoptions and the Superior Court's order granting Lori's petition for child custody, support and visitation, and denying Julie's motion to dismiss.

DISCUSSION AND DECISION

I. Adoption Order

Julie argues that the Circuit Court erred in denying her petition to vacate the adoption. Specifically, Julie contends that: (1) the Circuit Court did not have the authority to grant Julie's Petition for Adoption because the same-sex partner of a biological parent cannot be a stepparent pursuant to the stepparent adoption statute; and (2) the adoption was procured by fraud because Lori never intended for her relationship with Julie to be a life-long commitment.

A. Circuit Court's Authority

This court has recently decided several cases that are adverse to Julie's contention that the Circuit Court did not have authority to grant her adoption of Lori's biological children. In In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind.Ct.App.2004), we held that a same-sex domestic partner may adopt the biological children of her partner without divesting the parental rights of the biological parent. In K.S.P., Monica Polchert sought to adopt the biological children of her same-sex partner, Linda Lutz. Monica had been a part of the immediate family for seven years, providing "love, support, and day-to-day care" for the children, when she petitioned to adopt the children. Id. at 1260. The children's biological father consented to the termination of his parental rights and to Monica's adoption of the children. Monica testified that she loved the children, that she wished to share parental rights and responsibilities with Linda, and that she wished to provide for the children financially — including the ability to place the children on her health insurance policy. Id.

The trial court denied Monica's petition, relying on Indiana Code section 31-19-15-1, which provides that when a child is adopted, the rights of living biological parents are divested. On appeal, this court reversed the trial court, emphasizing that "the primary concern in every adoption proceeding is the best interest of the child." Id. at 1257. We examined the stepparent adoption statute, which allows stepparents to adopt without divesting...