FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                          DEC 20 2013, 6:04 am
STEPHEN SANDERS
Indiana University Maurer School of Law
Bloomington, Indiana

EARL R.C. SINGLETON
Community Legal Clinic
Bloomington, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

IN RE THE MARRIAGE OF                         )
                                              )
MELANIE DAVIS                                 )
                                              )
      Appellant-Petitioner,                   )
                                              )
          and                                 )        No. 53A01-1305-DR-221
                                              )
ANGELA SUMMERS,                               )
                                              )
      Appellee-Respondent.                    )

                    APPEAL FROM THE MONROE CIRCUIT COURT
                         The Honorable Valeri Haughton, Judge
                            Cause No. 53C08-1210-DR-561


                                   December 20, 2013
                              OPINION – FOR PUBLICATION

MATHIAS, Judge
        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.

                               Facts and Procedural History

        On October 30, 1999, Davis, then known as David Paul Summers, and Summers

were married in Brown County, Indiana. The marriage produced one child, K.S., who

was born in July 2005. At some point, Davis was diagnosed with “gender dysphoria.”

According to the fifth edition of the American Psychiatric Association’s Diagnostic and

Statistical Manual of Mental Disorders (“DSM-5”), a diagnosis of “gender dysphoria,”

formerly known as “gender identity disorder,” is a disorder of “people whose gender at

birth is contrary to the one they identify with.” See American Psychiatric Association,

“Fact        Sheet        on         Gender       Dysphoria,”        available        at

http://www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf.

        Thereafter, on May 31, 2005, Davis filed a petition in Marion Circuit Court to

change his name from David Paul Summers to Melanie Lauren Artemisia Davis. His

petition also requested that the gender on his birth certificate be changed from male to

female. The Marion Circuit Court granted the change of name on September 12, 2005.

However, that court did not order Davis’s gender to be changed on the birth certificate


                                              2
until it issued an amended order in his case three years later, on October 21, 2008. In this

amended order, the court directed that the gender designation on Davis’s birth certificate

“be amended from Male to Female in order to conform to her identity, legal name and

appearance.” Appellant’s App. p. 9.1

       After this legal change of gender, Davis and Summers remained married until they

separated later in 2008. Approximately four years after the parties separated, on October

25, 2012, Davis filed a petition for dissolution of marriage in Monroe Circuit Court.

Summers did not oppose the petition. On January 23, 2013, the trial court approved of

the parties’ agreed provisional order.     Pursuant to the provisional order, Davis was

granted custody of K.S. and Summers was ordered to pay child support.

       However, on March 8, 2013, the trial court, acting sua sponte, issued the order at

issue in this appeal, which provides in relevant part:

       The Court having reviewed the file herein and pertinent matters of law now
       FINDS:
       a.   Indiana Code 31-11-1-1 states: Same sex marriages are prohibited.
            i. Sec. 1(a) Only a female may marry a male. Only a male may
                marry a female.
            ii. (b) A marriage between persons of the same gender is void in
                Indiana even if the marriage is lawful in the place where it was
                solemnized.
       7. When the order amending the Petitioner’s gender was issued on
       October 21, 2008, Petitioner’s gender designation was legally changed to
       female. Pursuant to I.C. 31-11-1-1, Melanie Lauren Artem[i]sia Davis
       (formally David Paul Summers) a female was prohibited from being
       married to Angela Summers, also a female. The marriage became void on
       October 21, 2008.



1
  The question of whether the trial court properly amended Davis’s birth certificate to show a
change of gender is not before us.

                                              3
        8. On October 25, 2012, Melanie Davis filed a Verified Petition for
        Dissolution of Marriage, believing the marriage of the parties to be valid.
        Said belief could have been construed to constitute a common-law marriage
        prior to January 1, 1958. However, since January 1, 1958, common-law
        marriages in Indiana are prohibited by the repeal of the provision allowing
        common-law marriage in Acts 1957, Ch. 78 § 2, effective January 1, 1958,
        and the adoption of the statute prohibiting common-law marriages – I.C.
        31-1-6-1.
        9. The parties cannot assert that theirs is a common-law marriage, which
        is prohibited by statute. They were legally married prior to Petitioner’s
        gender reassignment, but the marriage was voided when both parties
        became female, as such marriages are also prohibited by Indiana statute.
        10. “A trial court cannot dissolve a marriage that is not a marriage because
        it is already void.” Williams vs Williams, 460 NE 2d 1226; 1984 Ind. App.
        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
        parties’ marriage was void as of October 21, 2008. Because the Court lacks
        the jurisdiction to dissolve a marriage because no marriage exists,
        Petitioner’s Verified Petition for Dissolution of Marriage is hereby
        DENIED.

Appellant’s App. pp. 5-6. Davis filed a motion to correct error on April 8, 2013, which

the trial court denied on March 15, 2013. Davis then filed a notice of appeal on April 15,

2013, and this appeal ensued.

                                          Standard of Review

        Davis claims2 that the trial court erred in concluding that Indiana Code section 31-

11-1-1 acted to void her marriage with Summers as of the date her birth certificate was

amended to show her change of gender. This claim requires us to construe section 31-11-

1-1. The interpretation of a statute is a pure question of law and is reviewed under a de


2
  Summers has not filed an appellee’s brief. When an appellee fails to submit a brief, the appellant may
prevail by making a prima facie case of error. Mikel v. Johnston, 907 N.E.2d 547, 551 n.3 (Ind. Ct. App.
2009). This prima facie error rule protects this court and takes from us the burden of controverting
arguments advanced for reversal, a duty which remains with the appellee. Id. But even under the prima
facie error rule, we are obligated to correctly apply the law to the facts in the record in order to determine
whether reversal is required. Id.

                                                      4
novo standard. Demming v. Underwood, 943 N.E.2d 878, 888 (Ind. Ct. App. 2011),

trans. denied. Our supreme court has summarized the rules of statutory construction as

follows:

      The first step in interpreting a statute is to determine whether the
      Legislature has spoken clearly and unambiguously on the point in question.
      When a statute is clear and unambiguous, we need not apply any rules of
      construction other than to require that words and phrases be taken in their
      plain, ordinary, and usual sense. Clear and unambiguous statutes leave no
      room for judicial construction. However when a statute is susceptible to
      more than one interpretation it is deemed ambiguous and thus open to
      judicial construction. And when faced with an ambiguous statute, other
      well-established rules of statutory construction are applicable. One such
      rule is that our primary goal of statutory construction is to determine, give
      effect to, and implement the intent of the Legislature. To effectuate
      legislative intent, we read the sections of an act together in order that no
      part is rendered meaningless if it can be harmonized with the remainder of
      the statute. We also examine the statute as a whole. And we do not
      presume that the Legislature intended language used in a statute to be
      applied illogically or to bring about an unjust or absurd result.

City of N. Vernon v. Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4-5 (Ind. 2005) (citations

omitted).

                               Discussion and Decision

      Davis claims that the trial court erred in construing Indiana Code section 31-11-1-

1, which provides:

      (a) Only a female may marry a male. Only a male may marry a female.
      (b) A marriage between persons of the same gender is void in Indiana even
      if the marriage is lawful in the place where it is solemnized.

Ind. Code § 31-11-1-1.

      It is clear that subsections (a) and (b) of the statute have both disjunctive and

conjunctive meaning in the case before us. When the parties were married, Davis was a

male and Summers was a female, and their marriage produced a child, K.S.              This
                                           5
marriage complied with the requirement of subsection (a). The question then, is what

effect subsection (b) of the statute had on the parties’ marriage, years after it had been

validly entered into under Indiana law. The trial court, focusing exclusively on the first

part of subsection (b), concluded that the parties’ 1999 marriage was void. This is not an

unreasonable reading of the first part of subsection (b) if read alone, as it states, “A

marriage between persons of the same gender is void . . . .” But, as set forth in City of

North Vernon, supra, we must read subsection (b) not only in the context of the rest of

the statute, but also in the context of the other statutes governing marriage in Indiana.

       The whole of subsection (b) provides that “[a] marriage between persons of the

same gender is void in Indiana even if the marriage is lawful in the place where it was

solemnized.” I.C. § 31-11-1-1(b) (emphasis added). Davis argues that section 31-11-1-

1(a) was meant to prevent the marriage of persons of the same sex from being considered

as married in Indiana and that subsection (b) simply states that a marriage between those

of the same sex is invalid in Indiana even if it was solemnized in a state where same-sex

marriages are permitted but does not automatically void a marriage that was initially

valid in Indiana simply because one of the parties to the marriage has changed his or her

gender. We agree.

       Indiana Code clearly addresses marriages that are void. Specifically, Chapter 8 of

Indiana Code 31-11 is titled “Void Marriages.” Section 1 of this chapter voids ab initio,

and without legal proceedings, the types of marriage described in sections 2-5 that

follow. Section 2 of the chapter declares that “[a] marriage is void if either party to the

marriage had a wife or husband who was living when the marriage was solemnized.” I.C.


                                              6
§ 31-11-8-2. Section 3 declares a marriage void if it is between people more closely

related than second cousins, with certain exceptions.        I.C. § 31-11-8-3.        Section 4

declares a marriage void if “either party to the marriage was mentally incompetent when

the marriage was solemnized.” I.C. § 31-11-8-4. And Section 5 states that a common-

law marriage is void if it is entered into after January 1, 1958. I.C. § 31-11-8-5.

       Lastly, Section 6, added in 1997, states:

       A marriage is void if the parties to the marriage:
       (1) are residents of Indiana;
       (2) had their marriage solemnized in another state with the intent to:
           (A) evade IC 31-11-4-4 or IC 31-11-4-11 (or IC 31-7-3-3 or IC 31-7-
                 3-10 before their repeal); and
           (B) subsequently return to Indiana and reside in Indiana; and
       (3) without having established residence in another state in good faith,
           return to Indiana and reside in Indiana after the marriage is
           solemnized.

I.C. § 31-11-8-6.

       Thus, Section 6 declares marriages void if they are simply an attempt to

circumvent the restrictions of certain other statutory restrictions on marriage, namely

Indiana Code sections 31-11-4-4 and 31-11-4-11 and their predecessor statutes. Section

31-11-4-4 sets forth the requirements of an application for marriage, and the section 31-

11-4-11 prohibits a court clerk from issuing a marriage to a person who has been

adjudged to be mentally incompetent or who is under the influence of alcohol or a

narcotic drug.

       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


                                              7
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,3 even though the parties were validly married at the

time of the child’s birth and even though Davis is the child’s father. 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
3
  It is important to emphasize that there is nothing in the record to suggest that Davis actually
wishes to abandon her child. To the contrary, Davis claims that the trial court’s ruling could
have the undesired effect of terminating her parental rights. And the ruling could indeed have
that effect.

                                               8
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 it 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.




                                           9
