In Re the Marriage of Cabalquinto , 100 Wash. 2d 325 ( 1983 )

Dolliver, J.

Ernest Cabalquinto and his former wife Cheryll Grover are involved in a dispute over Ernest's rights of visitation with their 8-year-old son Michael. Ernest Cabalquinto appeals from a King County Superior Court decision denying his request for an order allowing visitation with Michael in California.

Ernest and Cheryll Cabalquinto were married on March 3, 1973. The couple resided in Colorado Springs, Colorado, where Cheryll gave birth to their son Michael on January 7, 1974. On July 30, 1976, the Cabalquintos were divorced in Colorado Springs.

In the divorce decree, the District Court for El Paso County, Colorado, granted custody of Michael to Cheryll. The Colorado court awarded Ernest the following visitation rights:

2. That the Respondent, Ernest Cabalquinto, be allowed reasonable rights of visitation, which rights are to be liberally construed considering the distance involved between the parties, so that the Respondent be allowed liberal rights particularly during the summer months, and that the parties hereto alternate the major holidays so that each shall have the opportunity to have the minor child with him or her for those major holidays in different years.

Shortly before the Colorado court entered the custody decree, Cheryll moved to King County, Washington, with Michael. She has now remarried and lives in Renton with her husband Ronald Grover. Soon thereafter, Ernest moved to San Francisco, California. He now resides in Concord, California, a suburb of San Francisco.

For approximately 4 years after the divorce, Ernest visited his son Michael in King County, where Ernest's parents also reside. During that time Ernest visited his son on an average of one or two times a year. The length of the stay ranged from a few days to over a week for each of these instances. Ernest was given the opportunity to see Michael in the Seattle area whenever he so desired.

In 1980, however, Ernest decided he would like Michael to visit in California instead. When Cheryll refused to allow Michael to go to California, Ernest filed a motion in King County Superior Court for an order clarifying his visitation rights under the Colorado divorce decree. Ernest asked the court to establish a visitation schedule whereby the court would allow Michael to visit him in California for substantial periods in the summer months and on several holidays throughout the year. Cheryll objected, arguing that a modification of the decree, as opposed to an interpretation, would be necessary to enable Ernest to take the child outside the King County court's jurisdiction. The King County court avoided the procedural problem by treating Ernest's petition as one to clarify the Colorado decree and, in the alternative, as a petition to modify the divorce decree.

After a hearing on August 14, 1980, the trial court denied Ernest's request for the California visitation. The court found the existing pattern of visitation in King County at the home of Ernest's parents to be "fair, reasonable and in the best interest of the child." The existing visitation rights were found to have "resulted in a close relationship between the father and the son and [was] one which has been accomplished without undue expense or inconvenience." Clerk's Papers, at 6. Ernest's visitation with Michael in the Seattle area at the home of his parents was held to be a reasonable fulfillment of the Colorado decree of dissolution and was in the best interests of the child. The court further held it was not in the best interests of the child for the father to be permitted to remove the child from Washington for visitation at the home of the father in California.

In matters dealing with the welfare of children, trial courts are given broad discretion. Schuster v. Schuster, 90 Wn.2d 626, 632, 585 P.2d 130 (1978); Joslin v. Joslin, 45 Wn.2d 357, 364, 274 P.2d 847 (1954). A trial court's disposition of a case involving rights of custody and visitation will not be disturbed on appeal unless the court manifestly abused its discretion. Schuster v. Schuster, supra; Munoz v. Munoz, 79 Wn.2d 810, 813-14, 489 P.2d 1133 (1971); Joslin v. Joslin, supra. Therefore, the issue presented by this case is whether the trial court manifestly abused its discretion by refusing to change the existing pattern of visitation.

Ordinarily, with the facts as presented heretofore, we would find no manifest abuse of discretion and would affirm the trial court. The trial court found the existing arrangement of visitation presented Ernest with reasonable rights of visitation, a finding with which we are inclined to agree. There is, however, one additional fact. Ernest is homosexual. At the time of the marriage Ernest advised Cheryll he was bisexual. The record indicates his homosexual behavior was a factor in breaking up the marriage. Ernest is presently living with his avowed homosexual lover in Concord, California.

In his oral opinion, the triál judge expressed a strong antipathy to homosexual living arrangements. He expressed the view that "a child should be led in the way of heterosexual preference, not be tolerant of this thing [homosexuality]" and that "it can [not] do the boy any good to live in such an environment. It might do some harm."

Ernest points out the undisputed testimony of his witnesses was that the visitation would not be harmful. There is no evidence in the record to the contrary. Furthermore, the trial court made no findings a visitation could endanger the physical, mental, or emotional health of the child. See RCW 26.09.240. There is nothing in the record to indicate the visitation proposals of Ernest were unreasonable. This does not mean, however, that the only reasonable rights of visitation are those claimed by Ernest.

In reviewing the entire record before us, we cannot tell what standards of law the trial court followed in reaching its decision on visitation rights. While the findings and conclusions of law suggest the homosexuality of the father was not the determining factor, the unfortunate and unnecessary references by the trial court to homosexuality generally indicate the contrary.

It is the function of the trial court to weigh the facts and make its ruling. It is the function of this court to state the appropriate legal standards against which the facts must be weighed. We now make specific the rule of law which was subsumed in the decision in Schuster v. Schuster, supra: homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. This rule is consistent with the decisions of other state courts. See, e.g., D.H. v. J.H.,_Ind. App__, 418 N.E.2d 286 (1981); Di Stefano v. Di Stefano, 60 A.D.2d 976, 401 N.Y.S.2d 636 (1978); Nadler v. Superior Court, 255 Cal. App. 2d 523, 63 Cal. Rptr. 352 (1967); Bezio v. Patenaude, 381 Mass. 563, 410 N.E.2d 1207 (1980). See also Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799, 883 (1979); Campbell, Child Custody, When One Parent Is a Homosexual, 17 Judges' J., No. 2, at 38 (1978). It is also consistent with our view that custody and visitation privileges are not to be used to penalize or reward parents for their conduct. See, e.g., Andersen v. Andersen, 75 Wn.2d 779, 781, 453 P.2d 856 (1969); Malfait v. Malfait, 54 Wn.2d 413, 418, 341 P.2d 154 (1959); Norman v. Norman, 27 Wn.2d 25, 27, 176 P.2d 349 (1947).

It seems apparent from the record the trial court did not grasp the significance of Schuster v. Schuster, supra. Visitation rights must be determined with reference to the needs of the child rather than the sexual preferences of the parent. The best interests of the child remain paramount. RCW 26.09.240. Since we are unable to determine the basis for the trial court's ruling, we are unable to determine whether the ruling was an abuse of discretion. See Turner v. Walla Walla, 10 Wn. App. 401, 405, 517 P.2d 985 (1974). See also Mayes v. Emery, 3 Wn. App. 315, 321-22, 475 P.2d 124 (1970).

The case is remanded to the King County Superior Court for further consideration and a determination, consistent with this opinion, of the visitation rights of Ernest Cabal-quinto.

Utter, Dimmick, and Pearson, JJ., concur.

Dore, J., concurs in the result.