ILNews

Home day care presents first-impression

Jennifer Nelson
January 1, 2007
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The Court of Appeals ruled on a case of first impression involving whether a licensed child care facility constitutes residential or commercial use of the owner's residence.

In Jeannie Lewis-Levett v. Richard D. Day and Martha A. Day, 50A03-0705-CV-199, Lewis-Levett appealed the trial court's summary judgment ruling in favor of the Days. As owners and operators of Golfview Estates, the Days recorded covenants applicable to the lots there, which prevents buildings in the neighborhood being used for "any trade, business, manufacture or profession." Lewis-Levett began a licensed day care in her home in the neighborhood, caring for up to 12 children during the week. On her tax forms, she indicated 60 percent of her home is used for the day care.

The Days filed a complaint requesting a temporary and permanent injunction against Lewis-Levett's day care in her residence and attorney fees; Lewis-Levett filed a motion for summary judgment. The trial court granted summary judgment in favor of the Days and awarded attorney fees.

Lewis-Levett argued the trial court erred in granting summary judgment enjoining her from running the licensed day care in her home because a licensed day care is residential use of her home. She cited Stewart v. Jackson, 635 N. E. 2d 186, 193, where the Court of Appeals held that the operation of an unlicensed home day care constituted residential use and did not violate the restrictive covenants of its neighborhood.

The question of whether a licensed day care constitutes residential use is a matter of first impression for the court because Stewart is limited to unlicensed day care in homes. In Stewart, the court examined the number of children in the day care, its income, and the increase of traffic to determine whether it was residential use.

In this case, Lewis-Levett cares for 12 children, which means she could have 12 vehicles coming and going from her home throughout the day - more than normal for the neighborhood. She also uses 60 percent of her home for the business. Because the Indiana legislature has enacted extensive regulation of licensed day care homes that have more than six children, it shows them to be commercial enterprises.

The Court of Appeals affirmed the summary judgment enjoining Lewis-Levett from operating a licensed home day care. Public policy in favor of home day care is not without limits; although public policy favors home day care, such policy isn't violated by the enforcement of the restrictive covenants in this case, Judge Edward Najam wrote for the majority.

The Days cross-appealed the trial court ruling, saying it erred in not enjoining Lewis-Levett from having any type of child care in her home. The evidence showed she ran a licensed day care, so the trial court granted the relief requested in the amended complaint because the trial court did not have the case of "any" day care before it when ruling. The Court of Appeals denied the Day's cross appeal.
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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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