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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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