R.W. v. M.R. ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Feb 07 2012, 8:34 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
SCOTT A. NORRICK JASON A. CHILDERS
Anderson, Indiana Hulse Lacey Hardacre Austin
Sims & Childers, P.C.
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
R.W., )
)
Appellant-Respondent, )
)
vs. ) No. 48A04-1106-MI-331
)
M.R., )
)
Appellee-Petitioner. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable G. George Pancol, Judge
Cause No. 48D02-1010-MI-849
February 7, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
R.W. (“Mother”) appeals the trial court‟s order on clarification, granting M.R.
(“Grandmother”) visitation with Mother‟s minor children. Mother presents three issues
for review, which we consolidate and restate as whether the trial court erred when it
granted grandparent visitation.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On October 6, 2010, Grandmother filed a verified petition for emergency custody
of her son‟s children, A.R. and J.R. (“the children”).1 Grandmother alleged that Mother
had abused the children and that the children were afraid of Mother. On November 3, the
trial court conducted a hearing on the petition. At the conclusion of the hearing the trial
court denied Grandmother‟s petition but ordered that Mother “continue to allow the
Paternal Grandmother contact with the children on her weekend off work.” 2 Appellant‟s
App. at 25. The contact provision was based on the testimony that Mother‟s practice had
been to allow Grandmother to keep the children every other weekend while Mother was
at work.
On December 2, Mother filed a motion to correct error, which was deemed denied
forty-five days later. On February 4, 2011, Grandmother filed a motion to enforce
visitation, and on March 4 she filed a motion to clarify. The trial court denied the motion
1
The children‟s father, J.R.III, did not file and appearance and is not listed on the caption of this
appeal.
2
Grandmother is not employed. The trial court later clarified that the visitation was to occur on
the weekends that Mother is working.
2
to clarify by written notation on the motion. But on May 23, the court held a hearing on
the motion to enforce visitation. The trial court then entered the following order:
The Court finds that the parties have agreed that the grandparents
[Grandmother and her husband (“Grandfather”)] will have reasonable
phone contact with the children on their birthdays and Christmas Eve. On
the issue of weekends the Court does clarify the Order to show that the
grandparents are to have visitation every other weekend coinciding with the
Mother‟s weekend to work. The visitation will commence prior to the
Mother starting work on Friday evening and continue until 5:00 p.m. on
Sunday. The Court does find that this is not to be an addition to any of the
Father‟s visitation with the children. If the Father starts visiting with the
children on every other weekend the [Grandmother and Grandfather] will
be required to visit with the children on the Father‟s visitation with the
children during those visits.
Id. at 7. On June 21, Mother filed her notice of appeal the May 23 order.
DISCUSSION AND DECISION
Mother contends that the trial court erred when it awarded grandparent visitation
to grandmother in the May 23 order.3 In particular, Mother argues that the trial court
erred when it awarded grandparent visitation and, alternatively, that by following the
Parenting Time Guidelines the visitation awarded constitutes an abuse of discretion. We
find the first issue to be dispositive.
“[A] child‟s best interest is often served by developing and maintaining contact
with his or her grandparents.” Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App.
1999). But our supreme court has held that the only method for obtaining grandparent
3
Grandmother also contends that Mother‟s notice of appeal was not timely filed because Mother
is essentially appealing the order dated November 3 that directs Mother to allow alternate weekend
visitation with Grandmother. While Mother‟s notice of appeal lists both the November 3, 2010, order and
the May 23, 2011, order as the final judgments she is appealing, Mother‟s brief makes clear that she is
appealing the May 23 order, which set the exact times for visitation to occur. Mother‟s notice of appeal
was timely filed within thirty days of the May 23 order. Thus, Grandmother‟s argument that Mother‟s
appeal is “forfeited” is without merit. Appellee‟s Brief at 3.
3
visitation rights is through a proceeding under the Grandparent Visitation Act. J.I. v. J.H.
(In re K.I.), 903 N.E.2d 453 (Ind. 2009). There, the trial court had transferred custody
from the grandparents to the child‟s father but had simultaneously granted visitation
rights to the grandparents. Our supreme court held that was error:
Under the Act, a grandparent may seek visitation only if (1) the child‟s
parent is deceased; (2) the child‟s parents are divorced; or (3) the child was
born out of wedlock, but only if the child‟s father has established paternity.
I.C. § 31-17-5-1. And the trial court may grant visitation if it determines
that “visitation rights are in the best interests of the child.” I.C. § 31-17-5-
2. When a trial court enters a decree granting or denying grandparent
visitation, it is required to set forth findings of fact and conclusions of law.
McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003). In those
findings and conclusions, the trial court must address: (1) the presumption
that a fit parent acts in his or her child‟s best interests; (2) the special
weight that must be given to a fit parent‟s decision to deny or limit
visitation; (3) whether the grandparent has established that visitation is in
the child‟s best interests; and (4) whether the parent has denied visitation or
has simply limited visitation. In re Guardianship of J.E.M., 870 N.E.2d
517, 520 (Ind. Ct. App. 2007); In re Paternity of P.E.M., 818 N.E.2d 32, 37
(Ind. Ct. App. 2004). We also observe that although the amount of
visitation is left to the sound discretion of the trial court, “[t]he Grandparent
Visitation Act contemplates only „occasional, temporary visitation‟ that
does not substantially infringe on a parent's fundamental right „to control
the upbringing, education, and religious training of their children.‟ ”
Hoeing v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008) (quoting
Swartz [v. Swartz, 720 N.E.2d 1219. 1221 (Ind. Ct. App. 1999)]).
In re K.I., 903 N.E.2d at 462. The supreme court then remanded the case “with
instructions to enter appropriate findings and conclusions consistent with this opinion and
the Grandparent Visitation Act.” Id. at 462-63.
Here, Grandmother filed a motion for emergency custody of the children. At the
conclusion of a hearing on the motion, the trial court denied Grandmother‟s request for
custody but ordered that Mother “continue to allow the Paternal Grandmother contact
with the children on her weekend off work.” Appellant‟s App. at 25. Just as in In re K.I.,
4
the proceeding here was one for custody, a request for visitation had not been made under
the Grandparent Visitation Act, the record does not show that the trial court considered
the required factors under the Act, and the trial court did not make findings of fact. Thus,
we conclude that the trial court erred when it awarded grandparent visitation in this case.
See id. As such, we reverse the visitation order and remand with instructions to enter
appropriate findings and conclusions consistent with this opinion and the Grandparent
Visitation Act. See id.
Because we are remanding the case, we also consider Mother‟s remaining
contention regarding the extent of visitation, which is likely to recur on remand.
Specifically, she argues that the trial court erred when it ordered visitation consistent with
the Parenting Time Guidelines. She also asserts that the visitation order “substantially
infringes on [her] right to control the upbringing and training of her children.”
Appellant‟s Brief at 6. Again, we agree.
In In re K.I. the supreme court also considered the extent of grandparent visitation:
It is true that the Guidelines acknowledge a child‟s basic need “[t]o develop
and maintain meaningful relationships with other significant adults
(grandparents, stepparents and other relatives) as long as these relationships
do not interfere with or replace the child‟s primary relationship with the
parents.” Ind. Parenting Time Guidelines, A Child‟s Basic Needs (8).
However, as the Court of Appeals has observed, “[t]he guideline‟s title—
Indiana Parenting Time Guidelines—indicates that they apply to parents,
not other family members. More to the point: „The Indiana Parenting Time
Guidelines are based on the premise that it is usually in a child‟s best
interest to have frequent, meaningful and continuing contact with each
parent.‟ Given this specificity and the repeated references to „parents‟
throughout the guidelines, we suggest they have no mandatory application
to grandparent visitation disputes.”
5
Id. at 461 (some citations omitted, some alterations in original). For those reasons, the
court held that the grandmother was “not entitled to visitation pursuant to the Indiana
Parenting Time Guidelines. Id. at 461.
Although the supreme court held that the Parenting Time Guidelines have no
“mandatory” application in grandparent visitation cases, the facts as developed in In re
K.I. do not show in that case that the trial court felt compelled by law to award
grandparent visitation under the Guidelines or that visitation pursuant to the Guidelines
was requested. In any event, this court has also considered the propriety of grandparent
visitation according to the Parenting Time Guidelines in In re Guardianship of A.L.C.,
902 N.E.2d 343, 358 (Ind. Ct. App. 2009). There, noting that the Act contemplates only
“occasional, temporary visitation,” we concluded that “an award of grandparent visitation
to the [same] extent allowed a noncustodial parent under the Parenting Time Guidelines
is an abuse of discretion.” In re Guardianship of A.L.C., 902 N.E.2d 343, 358 (Ind. Ct.
App. 2009) (citing Hoeing v. Williams, 880 N.E.2d 1217, 1222 (Ind. Ct. App. 2008)).
Here, Mother takes issue only with the trial court‟s order for visitation every other
weekend.4 The trial court ordered visitation with two overnights every other weekend.
But, again, grandparent visitation that is nearly coextensive with the Parenting Time
Guidelines, as here, constitutes an abuse of discretion. See In re K.I., 903 N.E.2d at 461;
In re Guardianship of A.L.C., 902 N.E.2d at 358. Thus, the trial court abused its
discretion when it awarded visitation every other weekend from Friday evening to
Sunday evening.
4
The transcript shows that Mother agreed to let Grandmother have reasonable phone access and
to see the children on birthdays and Christmas Eve. Thus, those parts of the visitation order are not
before us, although they may be considered on remand when determining the appropriate visitation order.
6
In sum, we reverse the trial court‟s order and remand with instructions for the
court to reconsider the question of M.R.‟s visitation in accordance with the Grandparent
Visitation Act and with this opinion and then to make findings of fact and conclusions
thereon to support its determination.
Reversed and remanded with instructions.
ROBB, C.J., and VAIDIK, J., concur.
7