James Earl Schuster,
Appellant, v. Sandra Lee Schuster, Respondent.
Jerry Floyd Isaacson, Appellant, v. Madeleine
Cecil Isaacson, Respondent
No.
44433
Supreme
Court of Washington
90
Wash. 2d 626; 585 P.2d 130
October
5, 1978
SUBSEQUENT
HISTORY: Petition for Rehearing Denied February
28, 1979.
PRIOR HISTORY:
Superior Court: In a proceeding to modify the
custody provisions, the Superior Court for King
County, No. D-36867, Norman B. Ackley, J., on
November 7, 1974, refused to award custody to the
fathers and deleted the prohibition against the
mothers living together.
90 Wash. 2d 626,
*; 585 P.2d 130, **
DISPOSITION: On
the issue of changing custody to the fathers, six
Justices agree that the absence of changed
circumstances as to the children and their
custodians prevent a modification of the decree
and affirm that portion of the judgment. No
disposition is made, however, as to the trial
court's deletion of the separate living
requirement, four Justices holding that the
absence of changed circumstances prevent a change
in the requirement, two Justices holding that
sufficient change is shown in the record to
sustain the trial court's deletion of the
requirement, and three Justices expressing no
opinion on the issue.
HEADNOTES: [1]
Divorce and Dissolution -- Custody of Children --
Change in Circumstances -- Statutory Provisions.
Under RCW 26.09.260(1), which restricts the power
of a court to modify a prior custody decree,
changes in the circumstances of a noncustodial
parent do not warrant a modification.
[2] Appeal and
Error -- Review -- Issues Raised by Amici Curiae.
An appellate court will not determine issues
raised only by amici curiae.
[3] Divorce and
Dissolution -- Contempt -- Review. Punishment for
contempt for violations of a decree of
dissolution lies within the discretion of the
trial court and will not be disturbed on appeal
except for abuse. 90 Wash. 2d 626, *; 585 P.2d
130, **
[4] Divorce and
Dissolution -- Custody of Children -- Contempt of
Court -- Effect. Finding a custodial parent in
contempt for violation of the custody provisions
of a dissolution decree does not, by itself,
justify a change of custody.
[Note: Only 4
Justices concur in all of the above statements.]
SYLLABUS: Nature
of Action: After two women separated from their
husbands and began living together, each was
divorced by her husband. The custody of the
children in each family was given to their
mother, but each woman was ordered to live
separate and apart from the other. The women
thereafter maintained separate apartments but did
in fact live together with all of the children.
COUNSEL: Clay
Nixon and Theodore H. Gathe, for appellants.
Rosselle Pekelis
Higgins, Marjorie Singer, Julie Herak, and Arnold
Pedowitz, for respondents.
Carol Schapira
on behalf of National Organization for Women and
Catherine Hillenbrand, Phyllis Selinker,
Josephine B. Vestal, and Anne L. Ellington on
behalf of Lesbian Mothers' National Defense Fund,
amici curiae. 90 Wash. 2d 626, *; 585 P.2d 130,
**
JUDGES: En Banc.
Brachtenbach, J. Stafford, Horowitz, and Hicks,
JJ., concur. Dolliver, J. (concurring in part,
dissenting in part). Utter, J., concurs with
Dolliver, J. Rosellini, J. (dissenting). Wright,
C.J., and Hamilton, J., concur with Rosellini, J.
OPINIONBY:
BRACHTENBACH
OPINION: [*627]
[**131] These consolidated cases involve
factually related divorces. The respondent women
separated from their husbands and lived together
in a lesbian relationship with their children of
their marriages. The appellant fathers filed for
divorces from their respective spouses. Each
mother was given custody of her children.
However, the mothers were ordered to live
separate and apart and were prohibited from
removing the children from the state. Those
decrees were not appealed.
Later, each of
the fathers filed modification petitions seeking
custody of their children. Subsequently, motions
for contempt were filed charging violations of
the original decrees. The alleged violations by
the mothers were: (1) renting separate apartments
in the same building but in fact living together
along with all the children; and (2) taking the
children out of state. The mothers filed counter
petitions seeking modification of the original
decrees by deleting the prohibition against their
living together. 90 Wash. 2d 626, *627; 585 P.2d
130, **131
[*628] [**132]
The two modification proceedings were joined for
hearing. An attorney was appointed to represent
the children's interests. The findings and
conclusions resulted in the custody of the
children remaining with the mothers and the
deletion of the prohibition against the mothers
living together in an open and publicized lesbian
relationship. We affirm in part and reverse in
part.
At the outset we
emphasize that these cases do not involve the
question of whether it was proper to award
custody of the children to lesbian mothers. That
question was litigated in the original divorce
actions. No appeal was taken by any party. There
being no appeal, the original award of custody
with all limitations contained therein is binding
on all parties and upon this court. The issue is
simply not before us.
[1] The only
question presented by this appeal is whether any
modification of the original decrees was proper.
When is a modification of the custody provisions
of an original divorce decree justified? We have
long held that a modification will not be granted
unless there has been a subsequent substantial
change in circumstances which requires a
modification of custody in the best interests of
the children. <=1> Peugh v. Peugh, 67 Wn.2d
469, 408 P.2d 10 (1965).
90 Wash. 2d 626,
*628; 585 P.2d 130, **132
The policy is
obvious. Children and their parents should not be
subjected to repeated relitigation of the custody
issues determined in the original action.
Stability of the child's environment is of utmost
concern. If an error was allegedly made in the
original custody award, the remedy is by appeal.
We repeat that the fathers did not appeal from
the award of custody to the mothers; the mothers
did not appeal from the prohibition against their
living together.
This philosophy
of stability in custody matters has been adopted
by the legislature. In the marriage dissolution
act of 1973, it prohibited a modification of a
prior custody decree unless the court finds, upon
the basis of facts that have arisen since the
prior decree or that were unknown to the court at
the time of the prior decree, that a change has
[*629] occurred in the circumstances of the child
or his custodian and that a modification is
necessary to serve the best interests of the
child. RCW 26.09.260(1).
Under these
guidelines, the fathers must lose their
modification petitions. Their circumstances have
changed; each has remarried. They were found by
the trial court to be good and capable fathers,
vitally interested in their children. But the
statute requires a change in the circumstances of
either the child or the custodian, the mothers in
this case.
90 Wash. 2d 626,
*629; 585 P.2d 130, **132
Has there been
any change in the circumstances of the mothers to
warrant a modification of the custody decree to
allow them to live together?
In their
modification petitions, the respondent mothers
did not allege any change of circumstances and
the findings and conclusions evidence absolutely
none. At best the respondents established that it
was preferable for their own personal
circumstances, both financially and in pursuit of
their relationship, to live together. That issue
had been tried, they lost and did not appeal.
They did not meet the judicial or statutory
standards to change it. Therefore it was error to
modify that aspect of the decrees.
[2] Respondents
make a belated effort to raise constitutional
questions of freedom of association, equal
protection and due process from the requirement
that they live separate and apart. First, there
is more involved than the rights of these two
women. The lives of six children are at stake.
Second, neither side has briefed nor argued the
constitutional issues as they relate to this
requirement. Though the amicus curiae brief did
discuss the issue, appellate courts will not pass
upon points raised only by amicus. <=2>
Long v. Odell, 60 Wn.2d 151, 372 P.2d 548 (1962).
[3] Finally, we
turn to the fathers' argument that the trial
court erred in failing to find the mothers in
contempt for alleged violations of the original
90 Wash. 2d 626, *629; 585 P.2d 130, **132
divorce 120,
decrees. As we noted in <=3> State v.
Caffrey, 70 Wn.2d 122-23, 422 P.2d 307 (1966):
[*630] [**133]
Punishment for contempt of court is within the
sound discretion of the judge so ruling. Unless
there is an abuse of a trial court's exercise of
discretion, it will not be disturbed on appeal.
(Citations
omitted.)
[4] It appears
that the fathers seek to use violation of the
decrees as a basis to justify a change of
custody. Suffice it to say that even if the trial
court had found the mothers in contempt, that
alone would not justify a change in custody.
Punishment of the parent for contempt may not be
visited upon the child in custody cases. The
custody of a child is not to be used as a reward
or punishment for the conduct of the parents.
"The court shall not consider conduct of a
proposed guardian that does not affect the
welfare of the child." RCW 26.09.190. The
best interests of the child are the paramount and
controlling considerations. <=4> Thompson
v. Thompson, 56 Wn.2d 244, 352 P.2d 179 (1960).
The trial court
is affirmed except for its deletion of the
requirement that the respondent mothers live
separate and apart. As to that, it is reversed.
90 Wash. 2d 626, *630; 585 P.2d 130, **133
The matter is
remanded for entry of decrees in accordance with
this opinion.
CONCURBY:
DOLLIVER (In Part)
DISSENTBY:
DOLLIVER (In Part); ROSELLINI
DISSENT:
Dolliver, J. (concurring in part, dissenting in
part)
I concur with
the reasoning of the majority in its affirmance
of the award of custody to the defendants. I
dissent on the modification of the decree
relating to the defendants' living arrangements.
The controlling
statute on modification of custody awards states,
in relevant part:
The court shall
not modify a prior custody decree unless it
finds, upon the basis of facts that have arisen
since the prior decree or that were unknown to
the court at the time of the prior decree, that a
change has occurred in the circumstances of the
child or his custodian [*631] and that the
modification is necessary to serve the best
interests of the child.
RCW
26.09.260(1). 90 Wash. 2d 626, *631; 585 P.2d
130, **133
In the findings
at the time of the dissolutions, the trial court
specifically found Sandra Schuster and Madeleine
Isaacson were cohabiting and that "such
living arrangements are not in the best interest
of the children." However, the court in the
modification proceedings which are now before us
found:
That since the
time of the Divorce Decree the respondents at
first lived separate and apart and then moved
into adjoining apartments where they in fact
lived together as one household and that the
living arrangement did not prove to be against
the best interests of the children, except it
added a financial burden.
Thus, contrary
to the assertion of the majority, a change of
circumstances is contained in the findings. This
change went far beyond the personal convenience
of the defendants and was not to be found against
the best interests of the children. The crucial
question, then, is not whether the trial court
made a finding of changed circumstances but
whether there is evidence in the record to
support the findings.
During the
trial, voluminous testimony was taken on the
living environment in which the children of the
parties were being raised. According to expert
testimony, since the divorce decrees the
Isaacsons and Schusters had come to regard
themselves as a family of eight; the Isaacson and
Schuster children 90 Wash. 2d 626, *631; 585 P.2d
130, **133
would refer to
one another as brother or sister. Testimony
established that there was a "cross-over of
the parent roles" between Ms. Isaacson and
Ms. Schuster for the nurturing and assistance of
the children. This development of a family unit
and the strengthening of the relationships among
the eight family members presents a significant
change of circumstances which may appropriately
be recognized and was recognized by the trial
court in its findings.
[*632]
Furthermore, in its oral opinion, the trial court
stated that living apart for the sake of
appearances was imposing a financial [**134]
burden on the parties and their children. This
circumstance was also recognized in the findings.
Where the funds of the parties are limited, the
children would naturally be affected adversely by
an unnecessary expenditure of household
resources.
The trial court
should be given broad discretion in matters
dealing with the welfare of the children. A
finding was made of changed circumstances.
Substantial evidence is in the record to support
this finding. The disposition of this case should
not be disturbed except for a manifest abuse of
discretion. <=5> Lambert v. Lambert, 66
Wn.2d 503, 403 P.2d 664 (1965); <=6>
Selivanoff v. Selivanoff, 12 Wn. App. 263, 266,
529 P.2d 486 (1974). No abuse has been shown.
90 Wash. 2d 626,
*632; 585 P.2d 130, **134
The change of
circumstances which occurred here may have
developed while Ms. Schuster and Ms. Isaacson
were in violation of the original decree, an act
which this court need not approve. Nevertheless,
it occurred. The trial court chose not to punish
the parties for contempt and, finding no abuse of
discretion, we have agreed. The majority rightly
states that "Punishment of the parent for
contempt may not be visited upon the child in
custody cases. The custody of a child is not to
be used as a reward or punishment for the conduct
of the parents." This is a salutary rule.
Having so held, we should not now punish the
parties backhandedly by refusing to recognize an
unquestionable change of circumstances found by
the trial court and established by ample
evidence.
Rosellini, J.
(dissenting)
In awarding
custody of children, the primary or paramount
consideration is the welfare of the children.
<=7> Pierce v. Pierce, 52 Wash. 679, 101 P.
358 (1909); <=8> Thompson v. Thompson, 56
Wn.2d 244, 352 P.2d 179 (1960).
[*633] Granting
that a change of circumstances needs to be found
to modify a custody decree, such change of
circumstances exists. In the finding at the time
of the dissolution, the trial court specifically
found that Sandra Schuster and Madeleine Isaacson
were cohabiting and that such living arrangements
were not in the best interest of the children. 90
Wash. 2d 626, *633; 585 P.2d 130, **134
This finding was
made to insulate the children from the harmful
atmosphere of living together in the same
household where evidence of cohabitation would be
apparent.
Since that time
the respondents have in fact lived together in
one household and have publicly espoused on
radio, television and in lectures the superiority
of the homosexual lifestyle. They have involved
their children in these activities. This is a
change of circumstances that requires the court
to reexamine the correctness of its previous
custody order.
In <=9>
Gaylord v. Tacoma School Dist. 10, 88 Wn.2d 286,
559 P.2d 1340 (1977), this court held that a
teacher was "guilty" of immorality
because of his status of being a homosexual.
Also, the evidence in the case did not involve
any known homosexual acts. Nevertheless, this
court assumed that his effectiveness as a teacher
would be impaired. Mr. Gaylord was an excellent
teacher. His superior's evaluation of his
teaching effectiveness stated: "Mr. Gaylord
continues his high standards and thorough
teaching performance. He is both a teacher and
student in his field."
In regard to the
effect of Mr. Gaylord's status as a homosexual,
the opinion stated at pages 298-99:
90 Wash. 2d 626,
*633; 585 P.2d 130, **134
It is important
to remember that Gaylord's homosexual conduct
must be considered in the context of his position
of teaching high school students. Such students
could treat the retention of the high school
teacher by the school board as indicating adult
approval of his homosexuality. It would be
unreasonable to assume as a matter of law a
teacher's ability to perform as a teacher
required to teach principles of morality (RCW
28A.67.110) is not impaired and creates no danger
of encouraging expression of approval and of
imitation. Likewise to [*634] say that school
directors must wait for prior [**135] specific
overt expression of homosexual conduct before
they act to prevent harm from one who chooses to
remain "erotically attracted to a notable
degree towards persons of his own sex and is
psychologically, if not actually disposed to
engage in sexual activity prompted by this
attraction" is to ask the school directors
to take an unacceptable risk in discharging their
fiduciary responsibility of managing the affairs
of the school district.
In the instant
case, Sandra Schuster and Madeleine Isaacson were
and are living together in a homosexual
relationship. The respondents are living together
with their children as a family unit.
The respondents
have been engaged in publicizing the homosexual
cause in general and their lesbian relationship.
They have given a series of lectures and granted
interviews where they discussed their own
homosexual lifestyle. 90 Wash. 2d 626, *634; 585
P.2d 130, **135
The children
have accompanied respondents at some of these
engagements, and the respondents and their
children participated in making a movie which
depicts the lifestyle of two families bound
together by homosexual parents.
They have
advertised in a brochure entitled "The Gay
Family: A Valid Life-Style?" in which they
offered interested persons a booklet, "Love
is for All", and information about a film
entitled "Sandy and Madeleine's
Family", and also offer to make personal
appearances. An article in the San Francisco
Chronicle with the headline "The Lesbian
Love of Two Mothers" explained the
appearance of the two women visiting in the Bay
Area publicizing their film.
From such
publicizing it can be readily seen that they are
not content to pursue their lifestyle but are
also using their children for the purpose of
advocating and proselytizing that style.
I am unable to
understand how the court can declare that a
school teacher who only admitted to his
preference as a homosexual and did not engage in
any overt act, is guilty of immorality, and yet,
in the instant case, can find perfectly moral the
conduct of the respondents.
[*635] The State
does have an interest in the matter of
heterosexual acts versus homosexual acts.
Professors J. Harvie Wilkinson III and G. Edward
90 Wash. 2d 626, *635; 585 P.2d 130, **135
White, writing
in 62 Cornell L. Rev. 563, 595-96 (1977), in an
article entitled "Constitutional Protection
for Personal Lifestyles", state that:
[t]he most
threatening aspect of homosexuality is its
potential to become a viable alternative to
heterosexual intimacy. This argument is premised
upon the belief that the practice of an
alternative mode of sexual relations will
inimically affect the predominant mode. Thus, any
recognition of a constitutional right to practice
homosexuality would undermine the value of
heterosexuality and the institutions and
practices -- conventional marriage and
childrearing -- associated with it.
This state
concern, in our view, should not be minimized.
The nuclear, heterosexual family is charged with
several of society's most essential functions. It
has served as an important means of educating the
young; it has often provided economic support and
psychological comfort to family members; and it
has operated as the unit upon which basic
governmental policies in such matters as
taxation, conscription, and inheritance have been
based. Family life has been a central unifying
experience throughout American society.
Preserving the strength of this basic, organic
unit is a central and legitimate end of the
police power. The state ought to be concerned
that if allegiance to traditional family
arrangements declines, society as a whole may
well suffer.
90 Wash. 2d 626,
*635; 585 P.2d 130, **135
Disapproving
sexual conduct that might threaten traditional
family life is arguably a means related to this
end. Criminal law provides perhaps the strongest
vehicle for expressing such disapproval. On the
other hand, it is not the only vehicle for
enforcing conventional mores; community
disapproval of errant behavior is arguably a more
potent enforcement [**136] mechanism than the
law. Moreover, the criminal law's effectiveness
will be reduced if social practices and attitudes
run counter to its underlying assumptions. Yet
criminalization, whatever its lack of perfection
as a deterrent, is a dramatic symbol of social
disapprobation. Decriminalization means, quite
literally, the removal of disapproval, the
recasting of the state's posture as one of
neutrality.
[*636] In
seeking to regulate homosexuality, the state
takes as a basic premise that social and legal
attitudes play an important and interdependent
role in the individual's formation of his or her
sexual destiny. A shift on the part of the law
from opposition to neutrality arguably makes
homosexuality appear a more acceptable sexual
lifestyle, particularly to younger persons whose
sexual preferences are as yet unformed. Young
people form their sexual identity partly on the
basis of models they see in society. If
homosexual behavior is legalized, and thus partly
legitimized, an adolescent may question whether
he or she should "choose"
heterosexuality. At the time their sexual
feelings begin to develop, many young people have
more interests in common with members of their 90
Wash. 2d 626, *636; 585 P.2d 130, **136
own sex; sexual
attraction rather than genuine interest often
first draws adolescents to members of the
opposite sex. If society accorded more legitimacy
to expressions of homosexual attraction,
attachment to the opposite sex might be postponed
or diverted for some time, perhaps until after
the establishment of sexual patterns that would
hamper development of traditional heterosexual
family relationships. For those persons who
eventually choose the heterosexual model, the
existence of conflicting models might provide
further sexual tension destructive to the
traditional marital unit.
(Footnotes
omitted.) These arguments were endorsed by one of
the authors, Professor Wilkinson.
The Superior
Court of New Jersey held in <=11> In re
J.S. & C., 129 N.J. Super. 486, 324 A.2d 90
(1974), that granting a father, who was deeply
involved in the movement to further
homosexuality, the right to unrestricted
visitation would not be in the best interest of
the children, and that such visitation right
should extend to the daytime hours only. And in
<=12> Chaffin v. Frye, 45 Cal. App. 3d 39,
119 Cal. Rptr. 22 (1975), where a mother was a
homosexual living with a female companion in the
same apartment that the children would occupy,
the trial court's implied finding that an award
of custody to the mother would be detrimental to
the children was sustained.
90 Wash. 2d 626,
*636; 585 P.2d 130, **136
In this case the
trial court found, in the original trial, that
both parents were fit and proper persons to have
the [*637] custody of the children. The fathers
have since remarried and have established good
homes. Where should the scale of justice be
tipped? In favor of the mothers who are living in
a lesbian relationship? Or on the side of the
fathers whose lifestyles and relationships are
considered normal and moral?
On the state of
this record, the primary and paramount
consideration in awarding the children to a
parent is the welfare of the children. I would
hold that the mothers are not morally fit to have
the custody of the children, and I would award
the children to the fathers.
LEVEL 1 - 5 OF
14 CASES
ALICE MCKNIGHT
et al., Respondents, v. CHARLES BASILIDES,
Appellant, RUTH ALLISON, Defendant.
No. 29157
Supreme Court of
Washington, Department Two
19 Wash. 2d 391;
143 P.2d 307
November 6, 1943
SUBSEQUENT
HISTORY: Petition for rehearing denied December
11, 1943.
PRIOR HISTORY:
Appeal from a judgment of the superior court for
King county, Ronald, J., entered May 8, 1943,
upon findings in favor of the plaintiffs, in an
action for an accouting and for partition, tried
to the court. Affirmed, as modified.
HEADNOTES:
TENANCY IN COMMON -- ADVERSE POSSESSION --
HOSTILE CHARACTER OF POSSESSION. As a general
rule, the entry of a cotenant on the common
property will not be considered as adverse to his
contenants and an ouster of them even if he takes
the rents, cultivates the land, or cuts the
timber thereon without
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