In re the Marriage of: Kristy Gardenour v. Denise Bondelie , 2016 Ind. App. LEXIS 290 ( 2016 )

FILED
Aug 15 2016, 8:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jaimie L. Cairns Sean C. Lemieux
Cairns & Rabiola, LLP Lemieux Law
Indianapolis, Indiana Indianapolis, Indiana
Vanessa Lopez Aguilera
Lopez Law Office, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Marriage of August 15, 2016
Kristy Gardenour, Court of Appeals Case No.
32A01-1601-DR-82
Appellant-Petitioner,
Appeal from the Hendricks
v. Superior Court
The Honorable Stephanie LeMay-
Denise Bondelie, Luken, Judge
Trial Court Cause No.
Appellee-Respondent.
32D05-1503-DR-151
Robb, Judge.
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Case Summary and Issue
[1] In 2006, Kristy Gardenour and Denise Bondelie entered into a formal registered
domestic partnership (“RDP”) in accordance with California law. In
California, registered domestic partners share the same rights granted to and
obligations imposed upon spouses. After moving to Indiana, Kristy and Denise
agreed to co-parent a child. In 2012, Kristy was artificially inseminated, and
the following year, gave birth to a son, C.G. In early 2015, Kristy filed a
petition seeking to terminate the RDP. The trial court terminated the couple’s
RDP, awarded Denise joint legal custody of C.G. and parenting time and
ordered her to pay child support. Kristy now appeals, raising multiple issues,
which we consolidate and restate as: (1) whether the trial court erred in
concluding Kristy and Denise intended and agreed to become registered
domestic partners with equal rights as married couples and further erred in
determining the couple’s RDP agreement established a spousal relationship, (2)
whether the trial court erred in concluding Denise is C.G.’s legal parent, and (3)
whether the trial court abused its discretion in awarding Denise joint legal
custody and parenting time and ordering her to pay child support. We
conclude Kristy and Denise intended to enter into a RDP agreement in
accordance with California law. Pursuant to California law, Kristy’s and
Denise’s RDP established a relationship virtually identical to marriage, and
under the principle of comity, we recognize their relationship as a spousal
relationship. We further conclude Denise is C.G.’s legal parent under Indiana
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law, and the trial court did not err in awarding Denise joint legal custody and
parenting time and ordering her to pay child support. We affirm.
Facts and Procedural History
[2] In 2003, Kristy moved from Michigan to California to begin a relationship with
Denise. In accordance with California law, the couple entered into a RDP
agreement in 2006. Thereafter, Denise and Kristy moved to Indiana. In 2012,
the couple agreed to co-parent a child and Kristy was artificially inseminated.
On May 14, 2013, Kristy gave birth to a son, C.G. After their relationship
ended in October 2014, Denise returned to California. On March 2, 2015,
Kristy filed a Petition for Dissolution of Marriage.
[3] On October 8, 2015, the parties entered into a Partial Mediated Agreed Entry
settling their property disputes, leaving only the issue of child custody before the
trial court. On December 15, 2015, the trial court held a final hearing. During
the hearing, Denise requested joint legal custody and parenting time, including
regular video contact with C.G. and parenting time when she visited Indiana;
Kristy requested primary physical and legal custody. The trial court issued the
following Findings of Fact, Conclusions Thereon & Decree of Termination of
Domestic Partnership, recognizing the couple’s RDP agreement established a
spousal relationship, terminating the RDP, awarding Kristy primary physical
custody of C.G., awarding Denise joint legal custody and parenting time, and
ordering Denise to pay child support:
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Findings of Fact
***
5. On March 6, 2006, Kristy and Denise freely and voluntarily
entered into a Declaration of Domestic Partnership.
6. Kristy and Denise filed their Declaration of Domestic
Partnership with the California Secretary of State, and on March
13, 2006, they were issued a Certificate of Registration of
Domestic Partnership uniting them in [a] domestic partnership in
accordance with the California Family Code.
***
8. In entering into their Declaration of Domestic Partnership
Kristy and Denise understood that they were agreeing to, and
intended to be bound by, the various rights, protections,
obligations and responsibilities provided by the California laws
governing domestic partnerships.
9. Kristy and Denise are not married.
10. However, both Kristy and Denise understood and intended
that by entering into their Declaration of Domestic Partnership
they would be treated the same as spouses with regard to their
relationship even though they were not legally married.
***
14. In 2012 Kristy and Denise began discussing having a child
by artificial insemination using a sperm donor.
15. Both agreed to have a child and Kristy was to be the birth
parent.
16. Initially they explored donors through various sperm banks.
Their goal was to find a donor who looked like Denise so that the
child would have the physical traits of both Kristy and Denise.
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17. The parties eventually abandoned the idea of using a sperm
bank for several reasons including the excessive cost.
18. Kristy discussed their plans with a friend at work who
volunteered to donate his sperm.
19. Both Kristy and Denise agreed together to use this friend as
the sperm donor.
20. Kristy found a sperm donor agreement online and asked
Denise to review it. Denise is an attorney though she has not
practiced law since 2006.
21. Kristy and Denise together met with the friend/donor at a
restaurant to review the proposed sperm donor agreement. The
agreement was acceptable to the friend and subsequent to that
meeting Kristy and the friend signed the donor agreement before
a Notary at a bank.
22. For approximately five (5) months the friend/donor would
come to Kristy and Denise’s home once or twice each month and
provide a sperm donation for Kristy’s insemination.
23. Denise was present for the inseminations.
24. Kristy became pregnant as a result of the artificial
inseminations.
25. After Kristy became pregnant she and Denise together began
planning for the child’s future.
26. Denise attended OB/GYN appointments and ultrasounds
with Kristy during the pregnancy.
27. Kristy and Denise attended parenting classes together during
the pregnancy.
28. During the pregnancy Kristy and Denise planned for the
baby to carry Denise’s last name.
29. Kristy discussed the matter with Denise’s father, Bruce
Bondelie, and sought his support for the baby to carry the
Bondelie name.
***
31. Denise was present when [C.G.] was born.
32. At [C.G]’s birth Kristy attempted to give him Denise’s last
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name but was not allowed by the hospital to use Bondelie on his
birth records.
33. Kristy believed that [C.G.] was Denise’s son as well as hers.
34. Following [C.G.]’s birth Denise attended doctor’s
appointments with Kristy and [C.G.]
35. Denise participated in caring for [C.G.], feeding, changing
and playing with him.
36. After [C.G.] was born Kristy asked Denise to change the
beneficiary of her life insurance to [C.G.] because she considered
him to be Denise’s son as well and thought he should have the
benefit of Denise’s life insurance proceeds in the event of her
death.
37. Denise’s father also included [C.G.] as a beneficiary of the
Bondelie family trust.
38. The parties could not financially afford for Denise to
complete a second parent adoption of [C.G.] but intended to do
so when they could afford it.
39. The parties ended their relationship in July 2014 but
continued to reside in the same household until October 2014
when Denise went to California to care for her ailing father.
40. From October 2014 until April 2015 Denise had regular
contact with [C.G.] via [video chat] calls on a weekly basis.
41. Kristy terminated Denise’s contact with [C.G.] in April 2015
and has refused all of Denise’s requests for [video chat] and in
person contact since that time.
42. Denise visited with [C.G.] in person in Indiana in May 2015
when she returned to retrieve her property.
43. From the initial pregnancy through [C.G.]’s birth and
afterward until October 2014, Denise acted in a parental
capacity.
44. After the family ceased residing together Denise maintained
contact with [C.G.] as a non-custodial parent would.
45. Denise clearly loves [C.G.] Denise and [C.G.] share a bond
as child and parent.
***
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Conclusions Thereon
***
3. In Indiana unmarried domestic partners are free to enter into
contracts governing their rights and obligations upon
termination of the domestic partnership and such agreements
are enforceable. Bright v. Kuehl, 650 N.E.2d 311 (Ind. [Ct.] App.
1995); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980).
4. The parties’ Declaration of Domestic Partnership at a
minimum constitutes a valid contract.
5. The specific terms of their contract, by which the parties
agreed to be bound, are those established by the California
Family Law Code.
6. In other words, by entering into the [RDP] Kristy and Denise
created a valid, binding and enforceable contract which contract
incorporates default terms set forth in the California Family Law
Code.
7. Kristy and Denise have the same rights, protections and
benefits, and are subject to the same responsibilities, obligations
and duties as are granted to or imposed upon spouses. Cal. Fam.
Code § 297.5(a).
8. In ending their relationship and dividing their assets and
debts Kristy and Denise have the same rights, protections and
benefits, and are subject to the same responsibilities, obligations
and duties as apply to spouses in a dissolution of marriage. Cal.
Fam. Code § 299(d).
9. Just as spouses are permitted and encouraged to do in a
dissolution of marriage in Indiana, the parties entered into a
mediated settlement agreement, previously approved by this
Court, settling all property issues between them.
10. As part of the default terms of their contract, Kristy and
Denise agreed that their rights and obligations with respect to a
child of either of them are the same as those of spouses. Cal.
Fam. Code § 297.5(d).
11. In Indiana when spouses have a child through artificial
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insemination using a third party sperm donor both are entitled
to the rights and obligations of parents the same as though the
non-biological parent had adopted the child. Engelking v.
Engelking, 982 N.E.2d 327 (Ins. [Ct.] App. 2013); Levin v. Levin,
645 N.E.2d 601, 605 (Ind. 1999).
12. By entering into their contract Kristy agreed that Denise
would be treated as a parent with respect to [C.G.]
13. Denise is entitled to continue her parent-like relationship
with [C.G.] consistent with his best interests and is obligated to
provide him with financial support consistent with Indiana law.
14. This matter is distinguishable from A.C. v. N.J., 1 N.E.3d
685 (Ind. [Ct.] App. 2013). The holding of the A.C. decision
with respect to the legal relationship between A.C. and the child
does not control the outcome of this case. There the Court of
Appeals declined to declare that the domestic partner was the
child’s legal parent by virtue of an informal, verbal agreement.
In the instant case the parties have a formal, legal relationship
by virtue of their registered domestic partnership making them
more like the spouses in Levin and Engleking [sic] than the
informal domestic partners in A.C. Furthermore, the Court’s
holding in A.C. that the trial court could award the domestic
partner visitation with the child supports this Court’s order here.
***
IT IS THERE[FORE] ORDERDED, ADJUDGED AND
DECREED BY THE COURT AS FOLLOWS:
1. The parties are not married and the pending requests for
dissolution of marriage are hereby dismissed.
2. The parties’ domestic partnership is terminated.
3. Kristy shall have physical custody of [C.G.] Kristy and
Denise shall share joint legal custody of [C.G.]
4. Denise shall have the following visitation with [C.G.]:
a. [Video] communication twice each week on days and
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times to be agreed upon by the parties. . . .
b. When Denise travels to Indiana she shall have in
person visitation with [C.G.] three (3) times per week for
one hour each.
c. When Denise travels to Indiana for holidays and
[C.G.]’s birthday, she shall have visitation with [C.G.] as
the parties agree. . . .
5. Denise shall pay the sum of $64.00 each week for child
support in accordance with the attached Child Support
Worksheet effective December 18, 2015.
6. Kristy is responsible for the first $879.84 of uninsured
medical, health, dental and optical expenses for [C.G.] on a
yearly basis. Thereafter Denise shall be responsible for 13% and
Kristy shall be responsible for 87% of these expenses on a yearly
basis.
Appellant’s Appendix at 13-19. Kristy now appeals.
Discussion and Decision
I. Standard of Review
[4] Decisions regarding child custody, parenting time, and child support are all
reviewed for abuse of discretion. Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind.
Ct. App. 2012). On appeal, we neither reweigh evidence nor reassess witness
credibility. Id. Rather, we consider only the evidence most favorable to the
judgment and the inferences flowing therefrom. Id.
[5] The trial court entered findings of fact and conclusions thereon pursuant to
Indiana Trial Rule 52(A). Such findings must disclose a valid basis for the legal
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result reached in the judgment, and the evidence presented must support each
of the specific findings. J.M. v. N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006),
trans. denied. On appeal, we apply the following two-tiered standard: whether
the evidence supports the findings and whether the findings support the
judgment. Redd v. Redd, 901 N.E.2d 545, 549 (Ind. Ct. App. 2009). The trial
court’s findings and judgment will be set aside only if they are clearly
erroneous. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). A judgment is
clearly erroneous when a review of the record leaves us with a firm conviction
that a mistake has been made. Redd, 901 N.E.2d at 549. We review
conclusions of law de novo. Id. Finally, we generally give considerable
deference to the trial court’s findings in family law matters as the trial court is in
the best position to become acquainted with the relationship between parents
and their children. Id.
II. Spousal Relationship
[6] Kristy contends the evidence does not support findings 8 and 101 and challenges
the trial court’s conclusion based on those findings that the couple’s RDP
agreement, at a minimum, constitutes a valid contract incorporating default
terms set forth in the California Family Law Code, namely that the couple
shared the same rights and obligations as spouses share. Specifically, she
1
In findings 8 and 10, the trial court found that by entering into a RDP, Kristy and Denise understood they
were agreeing to, and intending to be bound by, California laws governing domestic partnerships, and as a
result, they would be treated as spouses.
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argues there is no evidence the parties understood and intended to be bound by
California’s laws governing RDPs and therefore there is no binding agreement.
She also argues, assuming the RDP agreement did establish a relationship
identical to marriage, the trial court erred in recognizing such a relationship in
Indiana. We disagree.
[7] In 2003, the California Legislature enacted the Domestic Partner Act (“Act”)—
which affords two same-sex individuals who had previously, or would in the
future, become registered domestic partners with certain rights and
responsibilities—with the intent “to equalize the status of registered domestic
partners and married couples.” Koebke v. Bernardo Heights Country Club, 115
P.3d 1212, 1219 (Cal. 2005). In order to be declared domestic partners, couples
must submit a Declaration of Domestic Partnership pursuant to sections 297
and 298 of the Act. Effective January 1, 2005, section 297.5 provided,
(a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or
sources of law, as are granted to and imposed upon spouses.
***
(d) The rights and obligations of registered domestic partners
with respect to a child of either of them shall be the same as those of
spouses.
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(Emphasis added); see also Cal. Fam. Code § 299.3 (providing that domestic
partners who entered into a RDP prior to January 1, 2005, would, as a matter
of law, be receiving new rights and responsibilities).
[T]he decision to marry or to enter into a domestic partnership is
more than a change in the legal status of individuals who have
entered into marriage or domestic partnership. In both cases, the
consequences of the decision is the creation of a new family unit
with all of its implications in terms of personal commitment as
well as legal rights and obligations.
Koebke, 115 P.3d at 1221. In addition, California passed section 299.3, which
provided those individuals who entered into a RDP prior to January 1, 2005,
the opportunity to enter into written agreements that would be “enforceable in
the same manner as a premarital agreement under California law . . . .” Cal.
Fam. Code § 299.3. Stated differently, those individuals were allowed to
contract around the default terms set forth in section 297.5. Section 299.3 also
provided notice to all individuals who would become domestic partners after
January 1, 2005, that domestic partners would begin receiving “many new
rights and responsibilities . . . .” Therefore, section 299.3 puts those individuals
who sought to enter into a RDP after January 1, 2005, such as Kristy and
Denise, on notice that they would be governed by the default terms set forth in
section 297.5 unless they entered into an express agreement to the contrary.
[8] Here, the evidence shows Kristy and Denise, while living together in California,
signed a notarized Declaration of Domestic Partnership in March 2006,
swearing,
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We the undersigned, do declare that we meet the requirements of
Family Code Section 297, which are as follows:
We have a common residence;
Neither of us is married to someone else, or is a member of
another domestic partnership with someone else that has
not been terminated, dissolved, or adjudged a nullity;
We are not related by blood in a way that would prevent
us from being married to each other in this state;
We are both at least 18 years of age;
We are both members of the same sex . . .;
We are both capable of consenting to the domestic
partnership;
We consent to the jurisdiction of the Superior Courts of
California for the purpose of a proceeding to obtain a
judgment of dissolution or nullity of the domestic
partnership or for legal separation of partners in the
domestic partnership, or for any other proceeding related
to the partners’ rights and obligations, even if one or both
partners ceases to be a resident of, or to maintain a
domicile in, this state.
Appellant’s App. at 76; see also Cal. Fam. Code §§ 297, 298 (2005). Kristy and
Denise did not enter into a written agreement prior to submitting their
Declaration. The California Secretary of State issued a Certificate of Registered
Domestic Partnership declaring Denise and Kristy domestic partners “[i]n
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accordance with Section 297 of the Family Code of the State of California.”
Appellant’s App. at 77.
[9] Kristy now claims she did not intend to be bound by the default terms set forth
in section 297.5 because the Declaration of Domestic Partnership did not
include language notifying her of the statutory default terms. We acknowledge
the Declaration does not specifically detail any rights or obligations associated
with entering into an RDP. However, we also note both the Declaration and
the Certificate reference California’s domestic partnership statute. See id. at 76,
77. In addition, parties to a contract “are presumed to know and to have had in
mind all applicable laws extant when an agreement is made” and “existing laws
are considered part of the contract just as if they were expressly referred to and
incorporated.” Rice v. Downs, 203 Cal. Rptr. 3d 555, 565-66 (Cal. Ct. App.
2016) (citation omitted); see also Ethyl Corp. v. Forcum-Lannom Assocs., Inc., 433
N.E.2d 1214, 1220 (Ind. Ct. App. 1982) (“It is well settled in Indiana that
generally, unless the contract provides otherwise, all applicable law in force at
the time the agreement is made impliedly forms a part of the agreement without
any statement to that effect . . .; the parties are presumed to have had the law in
mind.”). Therefore, despite the Declaration not detailing statutory language
pertaining to the rights and obligations of domestic partners, we conclude
Kristy and Denise contractually entered into a RDP—thereby incorporating
default terms of California law—and agreed to be treated as spouses. See Cal.
Fam. Code § 297.5.
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[10] In addition, we do not see how the trial court erred in recognizing the couple’s
RDP was the equivalent of marriage. Indiana’s recognition of a foreign
marriage is a matter of comity. Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct.
App. 2002), trans. denied. “On comity grounds, Indiana will accept as legitimate
a marriage validly contracted in the place where it is celebrated.” Id. Comity
“represents a willingness to grant a privilege, not as a matter of right, but out of
deference and good will.” Id. (citation omitted). However, Indiana courts
“need not apply a sister state’s law if such law violates Indiana public policy.”
Id.
[11] Kristy contends the trial court erred in recognizing Kristy’s and Denise’s RDP
as a spousal relationship because recognition of a same-sex marriage is contrary
to Indiana public policy. Kristy’s argument is outdated. Kristy is correct in
asserting that this court and our supreme court previously acknowledged a
public policy against recognizing same-sex marriages because our legislature
had enacted Indiana Code section 31-1-1-1(b), which stated a same-sex
marriage is void in Indiana even if lawful in the state where it is celebrated. See
McPeek v. McCardle, 888 N.E.2d 171, 174 n.2 (Ind. 2008); Mason, 775 N.E.2d at
709 n.3. However, Indiana Code section 31-1-1-1 has been struck down as
unconstitutional as “discriminating against homosexuals” by denying them
rights granted to heterosexuals, “namely the right to marry an unmarried adult
of their choice.” Baskin v. Bogan, 766 F.3d 648, 657 (7th Cir.), cert. denied, 135
S. Ct. 316 (2014). In addition, the Supreme Court of United States has made
clear “there is no lawful basis for a State to refuse to recognize a lawful same-
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sex marriage performed in another State on the ground of its same-sex
character.” Obergfell v. Hodges, 135 S. Ct. 2584, 2608 (2015).
[12] Here, California law makes clear a RDP is identical to marriage. If we did not
recognize California RDPs as the equivalent of marriage, it would seem to
allow individuals to escape the obligations California imposes upon domestic
partners, namely with respect to children. See Cal. Fam. Code § 297.5(d)
(providing that registered domestic partners share the same rights granted to
and obligations imposed upon spouses who have children). Applied here, a
decision not recognizing their spousal status would allow Denise, a non-
biological parent, to simply cross state lines in order to avoid parental
obligations such as child support. In addition, not recognizing their status
would ultimately harm C.G. because a child’s welfare is promoted by ensuring
she has two parents to provide financial support. See Straub v. B.M.T. by Todd,
645 N.E.2d 597, 601 n.9 (Ind. 1994). Thus, recognizing this spousal
relationship does not go against Indiana public policy, we conclude the
evidence supports findings 8 and 10, and the trial court did not err in
concluding Kristy and Denise agreed to enter a spousal relationship in
accordance with California law nor did it err in recognizing their spousal status.
III. Legal Parent
[13] Given Denise’s and Kristy’s spousal relationship and the fact C.G. was born,
and has always lived, in Indiana, we next address whether Denise is C.G.’s
legal parent under Indiana law. Kristy contends Denise is not C.G.’s legal
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parent, arguing an agreement between domestic partners to co-parent a child
born by artificial insemination is not enforceable. Denise counters she is C.G.’s
legal parent, arguing the couple’s RDP agreement established a spousal
relationship recognizable under comity and Denise and Kristy knowingly and
voluntarily agreed to co-parent a child by artificial insemination. We agree
with Denise.
[14] In Levin v. Levin, 645 N.E.2d 601 (Ind. 1994), a married couple decided to have
a child via artificial insemination. When the child was ten years old, the couple
divorced and the father was required to pay child support. After paying child
support for five years, the father filed a motion requesting the trial court to
vacate the child support order because the child was not a “child of the
marriage” under the Dissolution of Marriage Act, which the trial court denied.2
Our supreme court affirmed the denial of the father’s motion, noting,
A child conceived through artificial insemination, with the
consent of both parties, is correctly classified as a child of the
marriage. . . . We thus hold that, as in the case of adoption,
where both the husband and wife knowingly and voluntarily consent to
artificial insemination, the resulting child is a child of their
marriage.
2
The Dissolution of Marriage Act defines a “child of the marriage” as those “born or adopted during the
marriage of the parties.” Ind. Code § 31-9-2-13(a)(2).
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Id. at 605 (emphasis added). Because both parties knowingly and voluntarily
consented to the artificial insemination, the non-biological father was a legal
parent and was required to pay child support. Id.
[15] In Engelking v. Engelking, 982 N.E.2d 326 (Ind. Ct. App. 2013), we encountered
the same issue set forth in Levin, namely whether the non-biological father was
the legal parent of two children conceived during marriage by artificial
insemination. There,
Mother testified that Father knew of the artificial inseminations
that led to the conception of both children, helped her conduct
research to determine the paraphernalia used to facilitate the first
artificial insemination, talked with [the sperm donor] and his
wife about the use of [the donor]’s sperm as a component of both
inseminations, and consented to both inseminations. She also
testified that Father saved the paraphernalia for the second
insemination so that the first child would be an only child. She
further testified that Father supported the child during the
marriage, exercised his visitations rights during most of the
lengthy period between the filing of the petition for dissolution
and the final hearing, and claimed the oldest child on his tax
return.
Id. at 328. We concluded the non-biological father and mother knowingly and
voluntarily consented to the artificial inseminations and therefore the non-
biological father was the legal parent of both children. Id. at 329.
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[16] Kristy maintains Levin and Engelking are inapplicable to the present case
because Kristy and Denise were not married when C.G. was born.3 Kristy is
correct to the extent Kristy and Denise were not “married.” But that is not a
relevant distinction.4 Kristy and Denise entered into a formal RDP agreement
equivalent to marriage under California law, and given Indiana’s principle of
comity, we recognize their spousal relationship and treat them similarly to the
married couples in Levin and Engelking.
[17] That said, the evidence establishes Kristy and Denise agreed to co-parent a
child conceived via artificial insemination with Kristy being the birth parent.
Initially, they sought donors through various sperm banks but ultimately
abandoned that idea. Kristy then discussed with a male friend the possibility of
him donating his sperm. Kristy, Denise, and the friend met to discuss a
proposed sperm donor agreement and ultimately all three agreed to the
arrangement. Over the next five months, the friend provided sperm donations
at the couple’s home. Denise was present for Kristy’s inseminations, and both
were elated when Kristy became pregnant. During the pregnancy, Denise
attended Kristy’s prenatal appointments and parenting classes, and Kristy
3
We find it interesting Kristy filed a Petition for Dissolution of Marriage, alleging the couple “married” in
2006 and “[o]ne child was born during the marriage,” see Appellant’s App. at 23, despite Kristy arguing on
appeal she did not intend to enter into a spousal relationship with Denise and Denise is not C.G.’s legal
parent.
4
In addition, we acknowledge in both Levin and Engelking, the non-biological parent sought to avoid parental
rights and obligations whereas Denise is a non-biological parent seeking to receive parental rights and
obligations. This distinction does not change the law applicable to this situation, but given this unique
circumstance, we find it noteworthy.
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planned for the child to carry Denise’s last name. In fact, Kristy discussed the
possibility of the child carrying Denise’s last name with Denise’s father.
[18] Following C.G.’s birth, Kristy attempted to give him Denise’s last name, but
the hospital would not allow it. Despite this, Denise and Kristy still considered
C.G. to be Denise’s son. Thereafter, Denise attended C.G.’s doctor’s
appointments and cared for C.G. by feeding him, changing him, and playing
with him. Kristy also asked Denise to name C.G. as a beneficiary of her life
insurance; both Denise and her father included C.G. as a beneficiary on their
life insurance policies. After the couple ended their relationship and Denise
returned to California, Denise remained in contact with C.G. via video chat.
We therefore conclude Kristy and Denise, as spouses, knowingly and
voluntarily consented to artificial insemination. Denise is C.G.’s legal parent.
IV. Parenting Time 5
[19] Kristy contends the trial court erred in awarding Denise parenting time.6
Generally, “not only does a noncustodial parent have a presumed right of
5
Kristy also argues the trial court erred in awarding Denise joint legal custody of C.G and ordering Denise to
pay child support; Denise does not challenge the child support order. Indiana Code section 31-17-2-13
provides, “The court may award legal custody of a child jointly if the court finds that an award of joint legal
custody would be in the best interest of the child.” Kristy does not argue the custody award was not in
C.G.’s best interest. Therefore, to that extent, her argument is waived. See Ind. Appellate Rule 46(A)(8)(a).
However, she argues the trial court erred because Denise is not a natural parent. As noted above, Denise is
C.G.’s legal parent. As such, we conclude the trial court did not err in awarding Denise joint legal custody
nor did it err in ordering Denise to pay child support.
6
Kristy also challenges findings 38, 41, 44, and 45. We conclude these findings are supported by the
evidence, and Kristy’s assertions to the contrary invite us to either reweigh the evidence or reassess witness
credibility, which we will not do. And, even assuming these findings are clearly erroneous, the decision of
the trial court is supported by the remainder of the findings.
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parenting time, but the child has the correlative right to receive parenting time
from the noncustodial parent because it is presumed to be in the child’s best
interest.” Perkinson v. Perkinson, 989 N.E.2d 758, 764 (Ind. 2013). “A parent
not granted custody of the child is entitled to reasonable parenting time rights
unless the court finds, after a hearing, that parenting time by the noncustodial
parent might endanger the child’s physical health or significantly impair the
child’s emotional development.” Ind. Code § 31-17-4-1(a). Because Kristy
does not assert Denise’s parenting time might endanger C.G.’s physical or
mental health, she has waived this argument. See Ind. Appellate Rule
46(A)(8)(a). Waiver notwithstanding, we note the trial court ordered Denise to
receive the following parenting time: video chat communications twice a week;
three visits per week, for one hour each, when Denise travels to Indiana; and
parenting time as the parties deem fit when Denise travels to Indiana for
holidays and C.G.’s birthday. Given the lack of evidence indicating parenting
time would endanger C.G., coupled with the limited parenting time awarded to
Denise, we conclude the trial court did not err in awarding Denise parenting
time.
Conclusion
[20] California allows same-sex individuals to enter into RDP agreements. Under
California law, parties to a RDP are treated virtually identical to married
spouses. Kristy and Denise contracted to enter into a relationship equivalent to
marriage, which we recognize under comity. In Indiana, spouses who
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knowingly and voluntarily consent to artificial insemination are the legal
parents of the resulting child. The trial court did not err in concluding Denise is
C.G.’s legal parent, in awarding her joint legal custody and parenting time, and
in ordering her to pay child support. Accordingly, we affirm.
[21] Affirmed.
Najam, J., and Crone, J., concur.
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