Pennington v. Pennington

• Decision Date: 30 July 1992
• Docket Number: No. 60A01-9202-CV-39,60A01-9202-CV-39
• Citation: 596 N.E.2d 305
• Parties: Robert PENNINGTON, Appellant-Respondent, v. Lisa M. PENNINGTON, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 305

596 N.E.2d 305

Robert PENNINGTON, Appellant-Respondent, v. Lisa M. PENNINGTON, Appellee-Petitioner.

No. 60A01-9202-CV-39.

Court of Appeals of Indiana First District.

July 30, 1992.

Transfer Denied Oct. 29, 1992.

Vincent S. Taylor, Taylor, Hoff & Bauer, Bloomington, for appellant-respondent.

John J. Fuhs, Petri & Fuhs, Spencer, for appellee-petitioner.

BAKER, Judge.

Respondent-appellant Robert C. Pennington (Bob) appeals that portion of his marriage dissolution decree pertaining to a restriction placed upon his visitation rights with his nine-year-old son, Nathan. Bob asserts the trial court abused its discretion by ordering that Bob's adult male friend not be present during overnight visitations. We affirm.

FACTS

Bob and petitioner-appellee Lisa M. Pennington married on May 22, 1983. One child, Nathan, was born of the marriage the following year. The dissolution petition was filed on February 25, 1991.

Bob and Lisa agreed that Lisa would have custody of Nathan and that Bob would enjoy reasonable visitation and pay child support. Bob objects to the following portion of the trial court's order:

[Bob's] overnight visitation is restricted only to the extent that Ashley D. Barrow shall not be present during said visitation, for the reason that the Court specifically finds that said presence would be injurious to the minor child's emotional development.

Record at 33. The trial court imposed this restriction based on Lisa's testimony that it appeared to her that Bob was living almost totally with a male friend, Ashley Barrow, that she was suspicious about the pair's possible homosexuality, and that she did not want Nathan to be around Ashley. In support of her suspicions, Lisa offered photographs of a Valentine's Day card Ashley had given Bob. On the inside was printed: "There's a place within my heart that only you can fill," and "On Valentine's Day and every day in every thought in every way, more than words could hope to say: I love you. Happy Valentine's Day." The card was signed, "With all my love, Ashley." She admitted, however, she had witnessed no impropriety between Bob and Ashley, and could not say Bob was certainly homosexual. For his part, Bob denied his relationship with Ashley was homosexual. He described the relationship as a close friendship and testified the Valentine's Day card was a joke based on Lisa's insinuations of homosexuality.

DISCUSSION AND DECISION

In all visitation controversies, courts are required to give foremost consideration to the best interests of the child. IND.CODE 31-1-11.5-24. When reviewing the trial court's resolution of the visitation issue, we reverse only when the trial court manifestly abused its discretion. In re Marriage of Julien (1979), Ind.App., 397 N.E.2d 651. If the record reveals a rational basis supporting the trial court's determination, no abuse of discretion occurred. Carter v. Dec (1985), Ind.App., 480 N.E.2d 564. We will not reweigh evidence or reassess the credibility of witnesses. Id.

It is not puritanical or unreasonable to attempt to shield a child of tender age, like Nathan, from the sexual practices of the visiting parent, whether those practices are homosexual, as Lisa alleges, or heterosexual. Such protection is a sound practice designed to foster the child's emotional well-being, and is widely employed. See generally Wilson v. Wilson (1959), 171 Cal.App.2d 810, 341 P.2d 780 (no abuse of discretion to prohibit father from visiting child when in presence of female companion not his wife or not within the third degree of consanguinity); Gallo v. Gallo (1981), 184 Conn. 36, 440 A.2d 782 (no abuse of discretion to forbid father from allowing visiting child to stay overnight while father was living with woman "without the benefit of wedlock"); Commander v. Commander (1986), Fla.Dist.Ct.App., 493 So.2d 530 (no abuse of discretion to deny mother visitation while she was living with boyfriend and pregnant by him); Lasseigne v. Lasseigne (1983), La.Ct.App., 434 So.2d 1240 (no abuse of discretion to prohibit father's visitation while woman he was living with was present); Duplantis v. Monteaux (1982), La.Ct.App., 412 So.2d 215 (no abuse of discretion to condition father's visitation rights on his refraining from keeping company with any woman to whom he was not married during visits with his children, except during daylight hours); Larroquette v. Larroquette (1974), La.Ct.App., 293 So.2d 628 (no abuse of discretion to prohibit visitation in father's home where father maintained "illicit" relationship with woman on permanent basis); De Vita v. De Vita (1976), 145 N.J.Super. 120, 366 A.2d 1350 (no abuse of discretion to prohibit father from allowing father's female friend to stay overnight during child's visitation, even absent evidence of any sexual activity between father and woman in the household); In re Marriage of Fulwiler (1975), 22 Or.App. 311, 538 P.2d 958 (no abuse of discretion to prohibit father from allowing child to see woman father was living with until father and woman were married); Drum v. Drum (1979), 263 Pa.Super.Ct. 248, 397 A.2d 1192 (no abuse of discretion to limit father's visitation in presence of woman with whom he was living); Edwards v. Edwards (1973), Tenn.Ct.App., 501 S.W.2d 283 (no abuse of discretion to refuse mother visitation due, in part, to mother's home's proximity to man with whom mother had allegedly been sexually involved); and Palmer v. Palmer (1...