Davis v. Summers, No, 53A01-1305-DR-22, __ N.E.2d __ (Ind. Ct. App., Dec. 20, 2013).

Mathias, J.

Melanie Davis f/k/a David Paul Summers (“Davis”) appeals the order of the Monroe Circuit Court dismissing Davis’s petition to dissolve her marriage with Angela Summers (“Summers”). On appeal, Davis claims that the trial court erred in concluding that Davis and Summers’s marriage was void under Indiana Code section 31-11-1-1, which generally prohibits same-sex marriages in Indiana. Concluding that the parties’ marriage was not automatically voided when the trial court granted Davis’s petition to change her name and be identified as a female instead of a male, we reverse and remand.

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Simply said, there is nothing in the Indiana Code chapter dealing with void marriages that declares that a marriage that was valid when it was entered into becomes void when one of the parties to that marriage has since changed his or her gender. And the section that deals with marriages between Indiana residents solemnized in other states to avoid the application of certain Indiana marital regulations does not mention same-sex marriages. Nor does it need to do so, as these marriages are already void under Indiana Code section 31-11-1-1(b) even if they were solemnized in another state.

The trial court’s reasoning in the present case has the effect of adding the type of marriage at issue, a marriage between a male and female solemnized pursuant to Indiana law, to that Section 1 marriages that are void ab initio, along with polygamous, polyandrous, cousins’ and incompetents’ marriages To read this into the current statutory framework is beyond the purview of our constitutional authority to interpret statutes.

The trial court’s reasoning would also result in an untenable situation regarding the parties’ child, who is a legitimate child born to a legally-married man and woman during their marriage. To conclude that the parties’ marriage somehow became void when the gender was changed on Davis’s birth certificate would permit Davis to effectively abandon her own child, even though the parties were validly married at the time of the child’s birth and even though Davis is the child’s father. [Footnoted omitted.] It would also leave the parties’ child without the protection afforded by Indiana’s dissolution statutes with regard to parenting time and child support. We do not think that our General Assembly intended such a result.

In summary, under the specific facts and circumstances before us in this case, a marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender. The statute prohibiting same-sex marriages does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state. In addition, a marriage such as the one at issue here is not listed among those marriages declared void ab initio under applicable Indiana statutes, and would be improper to interpret the statute otherwise. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BRADFORD, J., and PYLE, J., concur.

 

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