*1 En Banc. October 44433. 1978.] [No. v. Sandra Appellant, Schuster, Earl Lee
James Respondent. Schuster, v. Madeleine Appellant, Jerry Floyd Isaacson, Respondent. Isaacson, Cecil *2 Clay appellants. Gathe, Nixon and H. Theodore for Higgins, Marjorie Singer, Herak, Rosselle Pekelis Julie respondents. Pedowitz, and Arnold for Schapira Organization Carol on behalf National for Phyllis Hillenbrand, Selinker, Women and Catherine Josephine Ellington Vestal, B. and Anne L. on behalf Fund, Lesbian Mothers' National Defense amici curiae. J. These consolidated fac- cases involve Brachtenbach, tually respondent separated related divorces. The women together from their and husbands lived a lesbian rela- tionship marriages. appel- with their children of their The respective spouses. lant filed fathers for divorces from their given custody However, Each mother was of her children. separate apart the mothers were ordered to live and prohibited removing were from the children from the state. appealed. Those decrees were petitions Later, each the fathers filed modification seeking Subsequently, of their children. motions contempt charging original for were filed violations of the (1) alleged by decrees. The violations the mothers were: renting separate apartments building the same but (2) together living along fact children; with all the tak- ing the children out of state. The mothers filed counter petitions by seeking original modification decrees prohibition deleting against living together. their proceedings joined The two modification were hear- An ing. attorney appointed represent was the children's in the cus- findings interests. The and conclusions resulted tody of the children mothers and the remaining prohibition against deletion of the mothers We publicized relationship. lesbian together open in part part. and reverse in affirm do not At we these cases emphasize the outset it to award cus- question proper involve the of whether was That was tody question of the children to lesbian mothers. was appeal divorce actions. No litigated original original by any being no party. appeal, taken There is with all limitations contained therein award is upon this court. The issue binding parties all us. simply before question presented appeal only any decrees was
whether
modification
provisions
modification of the
When is a
proper.
*3
held that
long
divorce decree
We have
original
justified?
an
been a
will
unless there has
granted
modification
not be
which
in circumstances
change
substantial
subsequent
custody
in the best
interests
requires a modification
469,
not be Stability of the original in the determined action. issues If error was of utmost concern. environment is child's award, custody remedy the allegedly made the appeal did not from We that the fathers by appeal. repeat mothers; did not to the mothers custody the the award together. against from their prohibition appeal has been stability matters philosophy This In act marriage dissolution adopted by legislature. 1973, prior a modification of it prohibited finds, that the basis facts upon unless the court decree unknown to were decree that prior have arisen since the has decree, change that a prior the court at the time occurred the circumstances of the child or his custodian necessary that a modification is to serve the best inter- 26.09.260(1). ests of the child. RCW Under these guidelines, the fathers must lose their modi- fication petitions. Their changed; circumstances have each They has remarried. were found the trial court to be good fathers, capable vitally chil- interested their dren. But requires the statute change the circum- custodian, stances of either the child or the the mothers this case.
Has any there been change circumstances to mothers warrant a modification of the decree allow them to live together?
In their petitions, modification respondent mothers did allege any not change of circumstances and the findings and conclusions absolutely evidence At none. best respondents established it preferable that was for their own personal circumstances, both financially in pursuit their relationship, live together. That issue had been tried, they lost and did appeal. They did not meet judicial or statutory standards to change it. it Therefore was modify error to aspect that of the decrees.
Respondents make a belated
effort
raise constitu
questions
association,
tional
of freedom of
equal protection
process
due
from
requirement
they
that
sepa
live
First,
apart.
rate and
there is more
rights
involved than the
of these two women. The lives of six children are at stake.
Second, neither side has
nor argued
briefed
the constitu
tional
they
issues as
requirement.
relate
Though the
issue,
amicus curiae brief did
appellate
discuss the
courts
will
Long v.
pass
upon points
only by
raised
amicus.
Odell,
(1962).
60 Wn.2d
Finally, we turn to the fathers' argument *4 trial court in failing erred to find in the mothers contempt for alleged violations of the divorce As decrees. we State v. Caffrey, 70 Wn.2d in 120, 122-23, noted 422 P.2d (1966): 307
630 contempt of court is within the sound
Punishment for Unless there is an judge ruling. of so abuse discretion the discretion, will not dis- of it be of a trial court's exercise appeal. on turbed
(Citations omitted.) use violation of
It that the fathers appears seek custody. Suffice justify change as a basis a decrees if court found the mothers say it to that even the trial had in cus change that would not a contempt, justify alone contempt may for not be tody. Punishment of parent custody custody The upon the child cases. visited for the punishment not child is used as reward consider con parents. "The court shall not conduct the welfare proposed guardian duct of a that does affect best interests of the child." RCW 26.09.190. The paramount controlling considerations. child are the Thompson, v. Wn.2d 352 P.2d Thompson (1960). except for
The trial court is affirmed its deletion separate mothers live requirement respondent that, The matter is remanded As to it is reversed. apart. with entry opinion. decrees in accordance Horowitz, Hicks, JJ., Stafford, concur. Dolliver, dissenting part) (concurring part, J. —I affirmance majority of the its reasoning concur I on the defendants. dissent of the award of to the relating defendants' modification the decree arrangements. modification statute controlling
The states, part: relevant awards modify decree prior court shall finds, of facts that have arisen upon it the basis
unless the court were unknown to prior decree or that since decree, change has that a prior of the at the time (cid:127) or his child custo- circumstances occurred *5 necessary dian and that the modification is to serve the best interests of the child. 26.09.260(1).
RCW findings In. dissolutions, the at the time of the the trial specifically court found Sandra Schuster and Madeleine cohabiting living arrange- Isaacson were and that "such in ments are not the best interest of the How- children." proceedings ever, the court in the modification which are now before us found: respon-
That since the time of the Divorce Decree the separate apart dents at first lived and then moved adjoining apartments they into together where fact lived living arrange- as one household and that the prove against ment did not to be the best interests of the except children, it added a financial burden. contrary majority, Thus, change to the assertion the findings. change of circumstances is contained the This beyond personal went far convenience of the defend- against ants and was not to be found the best interests of question, then, children. The crucial is not whether the finding changed trial court made a circumstances but support whether there is evidence the record to findings.
During testimony trial, voluminous was taken on the living parties environment which the children of the were being According expert testimony, raised. since the divorce decrees the Isaacsons and Schusters had come to regard family eight; themselves as a the Isaacson and Schuster children would refer one another as brother Testimony sister. established that there was a "cross-over parent of roles" between Ms. Isaacson and Ms. Schuster nurturing for the and assistance of the children. This development family strengthening of a unit and relationships among eight family presents members significant change may appropri- which circumstances ately recognized recognized by be and was the trial court in findings. its
Furthermore, opinion, its oral trial court stated apart appearances the sake of was imposing financial parties burden and their children. This cir- cumstance recognized findings. was also Where the limited, of the parties funds are the children would natu- rally adversely by unnecessary expenditure affected of household resources. given
The trial court
discretion
mat
should be
broad
finding
ters
A
dealing with the welfare of the children.
was
*6
made of
evidence is
changed circumstances. Substantial
of
the record to
this
support
finding.
disposition
The
case
for
except
should not be disturbed
a manifest abuse
Lambert,
discretion. Lambert v.
503,
66 Wn.2d
403 P.2d
(1965);
263,
Selivanoff,
v.
266,
12
664
Wn. App.
Selivanoff
(1974).
The circumstances developed while have Ms. Schuster and Ms. Isaacson were decree, the which this court violation of act Nevertheless, trial court approve. need not it occurred. The and, parties contempt finding not to for punish chose discretion, majority agreed. rightly no abuse we have contempt may for parent states that "Punishment custody custody child in cases. The upon not be visited punishment as reward or of a child is not to be used salutary Having is a rule. parents." of the This conduct backhand- held, punish parties now we should not so change of unquestionable edly refusing recognize an by by court and established found trial circumstances ample evidence. J., J. Dolliver,
Utter, concurs of chil- (dissenting) awarding Rosellini, J. —In the wel- consideration is dren, primary paramount Pierce, 679, v. 101 P. 52 Wash. children. Pierce fare of the 244, Thompson, v. Wn.2d 352 Thompson (1909); 56 358 (1960). P.2d 179
Granting change that a of circumstances needs modify change decree, found to such of circum- finding In dissolution, stances exists. at the time specifically the trial court found that Sandra Schuster and cohabiting Madeleine Isaacson were arrangements and that such were not the best interest of children. finding This was made to insulate the children from the atmosphere living together harmful in the same house- apparent. hold where evidence of cohabitation would be respondents Since that time the have fact lived together publicly espoused in one household and have superiority radio, television and in lectures the lifestyle. They homosexual have involved their children in change these activities. This is a of circumstances that requires previ- the court to reexamine the correctness of its ous order. Gaylord
In 10, v. Tacoma School Dist. 88 Wn.2d (1977), P.2d 1340 this court held that a teacher was "guilty" immorality being because of his status Also, homosexual. any the evidence the case did not involve Nevertheless, known homosexual acts. this court assumed that his effectiveness as a teacher would be impaired. Gaylord Mr. was an excellent teacher. His *7 superior's teaching evaluation of his effectiveness stated: Gaylord high thorough "Mr. continues his standards and teaching performance. He is both a teacher in and student his field." regard Gaylord's
In to the effect of Mr. status as a opinion pages homosexual, the stated at 298-99: important Gaylord's It is to remember that homosex- ual conduct must be in considered the context of his position teaching high of school students. Such students high by could treat of the retention school teacher indicating approval the school board as of adult his homosexuality. It would be unreasonable to assume as a ability perform matter of law a required to teacher's as a teacher (RCW principles morality to teach of 28A.67- .110) ing expression impaired danger encourag- is and no of creates approval of of and imitation. Likewise to say expression prior specific wait for overt that school directors must they pre- of homosexual conduct before act to "erotically from to vent harm one who chooses remain degree persons of attracted a notable towards his own actually disposed psychologically, sex is if not and activity engage prompted in is sexual this attraction" unacceptable to ask discharging risk the school directors to take fiduciary managing responsibility their of the school district. affairs case,
In and Madeleine the instant Sandra Schuster living together in rela- Isaacson were and are a homosexual tionship. respondents together with The their are family children a unit. as engaged publicizing respondents
The been have relationship. general their homosexual cause and lesbian They given granted and interviews have series lectures lifestyle. they where their own homosexual discussed accompanied respondents children at some these have respondents par- engagements, children and the their depicts lifestyle ticipated making movie which together by parents. two families bound homosexual Gay They "The have advertised a brochure entitled Family: Life-Style?" they A in which offered inter- Valid persons booklet, All", and information ested "Love is "Sandy Family", about a film entitled and Madeleine's personal appearances. An in the article also offer to make "The San Chronicle with the headline Lesbian Francisco explained appearance two Two Love of Mothers" Bay publicizing visiting film. women their Area readily they publicizing From it can seen that are such using pursue lifestyle but also their their are content advocating proselytizing purpose children for the style. I how the court can declare am unable understand preference only who admitted to his that a teacher school any engage act, overt did not as a homosexual and yet, immorality, guilty case, find in the instant can respondents. perfectly moral conduct
635 of hetero- have an interest the matter The State does J. Harvie acts. Professors sexual acts versus homosexual White, Cornell writing III G. Edward Wilkinson and (1977), L. entitled "Constitu- Rev. 595-96 an article Lifestyles", state that: tional Protection Personal threatening aspect homosexuality most of is its [t]he to to heterosexual potential become viable alternative that intimacy. argument premised upon This is the belief practice the will an alternative mode sexual relations Thus, inimically any affect mode. predominant homosex- recognition uality right practice a constitutional heterosexuality would undermine the value of and practices marriage institutions —conventional with it. childrearing —associated concern, view, not be mini- This state our should nuclear, family charged mized. The heterosexual is society's several as an most essential functions. It has served important educating means of it young; has provided support psychological often fort to upon as economic com- members;
family it operated has as the unit governmental policies which basic such matters taxation, conscription, and inheritance have been Family unifying experience based. throughout this life has been a central society. Preserving strength
American of of basic, organic unit is a legitimate central and end police power. ought The state to be concerned that if declines, allegiance society family arrangements traditional may as a whole well suffer.
Disapproving might sexual conduct threaten tra- family ditional arguably life is a means related Criminal provides perhaps strongest end. for not community disapproval more Moreover, law vehicle hand, expressing such On the other it disapproval. is only mores; for enforcing vehicle conventional arguably of errant behavior potent enforcement mechanism than the law. will
the criminal law's effectiveness be reduced if run under- practices social and attitudes counter its criminalization, lying assumptions. Yet whatever its lack deterrent, symbol of perfection as a is a dramatic means, lit- disapprobation. quite social erally, state's Decriminalization disapproval, recasting the removal neutrality. posture as one *9 as homosexuality, In to the state takes seeking regulate play an legal that social and attitudes premise basic in individual's interdependent role important and A destiny. part or shift on the formation of his her sexual makes opposition neutrality arguably of the law from to lifestyle, homosexuality acceptable a more sexual appear younger persons preferences to whose sexual particularly are as form their sexual yet Young people unformed. society. identity If legitimized, she should "choose" sexual more interests they on basis of models see partly partly thus legalized, and homosexual behavior or may whether he question an adolescent time their heterosexuality. At the have develop, many young people feelings begin own with of their common members often sex; than interest genuine sexual attraction rather If opposite of the sex. first draws members adolescents of homo- expressions society legitimacy accorded more attraction, opposite might to the sex attachment sexual be time, until perhaps for some postponed diverted that would of sexual patterns after the establishment family heterosexual of traditional hamper development eventually choose who persons For those relationships. model, conflicting the existence the heterosexual destructive further sexual tension might provide models unit. traditional marital (Footnotes omitted.) arguments were endorsed These authors, Professor Wilkinson. one in In re J.S. & Jersey Court of New held Superior (1974), C., 486, that granting A.2d 90 Super. 129 N.J. 324 father, movement to further who involved deeply was would to unrestricted visitation homosexuality, right children, that such and best interest be daytime only. hours extend to the right visitation should Rptr. 119 Cal. Frye, App. v. 45 Cal. 3d And Chaffin with a (1975), living homosexual mother was a where a that the children apartment companion the same female finding that an implied court's the trial occupy, would to the mother would be detrimental to the award children was sustained. trial, found, court
In the trial this case to have the persons proper fit and parents that both were the children. The fathers have since remarried good have established homes. Where should the scale In favor of who justice tipped? the mothers are in a relationship? lesbian Or the side the fathers lifestyles relationships whose are considered normal and moral? record, primary
On the state of this and paramount in awarding consideration the children to a is the parent I the children. would hold welfare the mothers are morally children, fit I to have the would award the children to the fathers.
Wright, C.J., J., Hamilton, Rosellini, concur *10 J. 28,
Petition for rehearing February denied 1979. 44907. En Banc. October [No. 1978.] Stanley al, Petitioners, E. Muench, v. E. C. et Respondents.
Oxley, al, et