Schuster v. Schuster

585 P.2d 130, 90 Wash. 2d 626, 1978 Wash. LEXIS 1114

• Court: Washington Supreme Court
• Decided: October 5, 1978
• Docket: 44433
• Status: Published

Opinions

Brachtenbach, J.

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.

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.

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. Peugh v. Peugh, 67 Wn.2d 469, 408 P.2d 10 (1965).

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 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.

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.

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. Long v. Odell, 60 Wn.2d 151, 372 P.2d 548 (1962).

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 divorce decrees. As we noted in State v. Caffrey, 70 Wn.2d 120, 122-23, 422 P.2d 307 (1966):

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.)

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. 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. The matter is remanded for entry of decrees in accordance with this opinion.

Stafford, Horowitz, and Hicks, JJ., concur.