Shawn W. Nicosin v. William J. Mesaeh and Loretta D. Mesaeh ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
KENDRA G. GJERDINGEN JAN BARTEAU BERG
FILED
Bloomington, Indiana Indianapolis, Indiana
Feb 22 2013, 9:20 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
SHAWN M. NICOSIN, Father, )
)
Appellant-Respondent, )
)
vs. ) No. 11A01-1207-MI-308
)
WILLIAM J. MESAEH and )
LORETTA D. MESAEH, Grandparents, )
)
Appellees-Petitioners. )
APPEAL FROM THE CLAY SUPERIOR COURT
The Honorable Charles D. Bridges, Special Judge
Cause No. 11D01-1111-MI-759
February 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Shawn M. Nicosin (Father) appeals the trial court’s decision to grant visitation of his
daughter, G.N., with her maternal grandparents, William and Loretta Mesaeh (Grandparents).
He presents several issues for our review, one of which we find dispositive: whether the trial
court’s findings of fact and conclusions of law are clearly erroneous. We reverse and
remand.
FACTS AND PROCEDURAL HISTORY
Father and Christina (Mesaeh) Nicosin (Mother) married on August 3, 2001. G.N.
was born on December 6, 2002. Mother was diagnosed with cancer in early 2003, and the
family moved in with Grandparents in March 2003. Mother died in June 2005, and Father
and G.N. moved out of Grandparents’ home in late 2005.
After Mother’s death, Grandparents visited frequently with G.N., often providing her
care before and after school, attending church with her on Sundays, and having occasional
overnight visits. Grandmother volunteered at G.N.’s school and often had lunch with her in
the school cafeteria.
Sometime in 2010, Father decreased the amount of time G.N. was spending with
Grandparents. He sometimes obtained alternate before and after school care, and he no
longer allowed G.N. to stay overnight with Grandparents through the week, citing G.N.’s
additional homework. However, he continued to allow G.N. to occasionally stay overnight
with Grandparents.
On November 1, 2011, Grandparents petitioned for visitation. The trial court held a
hearing on April 20, 2012, and on July 13, it issued findings of fact and conclusions of law
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granting visitation.
DISCUSSION AND DECISION
We give substantial deference to trial courts in family law matters, and review a trial
court’s decision regarding grandparent visitation for clear error. Wilder-Newland v.
Kessinger, 967 N.E.2d 558, 560 (Ind. Ct. App. 2012). When, as here, the trial court makes
findings:
[W]e first determine whether the evidence supports the findings and then
whether the findings support the judgment. In deference to the trial court’s
proximity to the issues, we disturb the judgment only where there is no
evidence to support the findings or the findings fail to support the judgment.
We do not reweigh the evidence or determine witness credibility. Rather, we
consider only the evidence most favorable to the trial court’s judgment, with
all reasonable inferences drawn in favor of the judgment.
Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind. Ct. App. 2004) (quotations and citations
omitted). However, we review conclusions of law de novo and owe no deference to the trial
court’s determination of such questions. Mueller v. Karns, 873 N.E.2d 652, 657 (Ind. Ct.
App. 2007), reh’g denied.
A grandparent may seek visitation rights if the child’s parent is deceased. Ind. Code §
35-17-5-1(a)(1). The trial court may “grant visitation rights if the court determines that
visitation rights are in the best interests of the child.” Ind. Code § 31-17-5-2(a). Whether
visitation is in the best interests of the child is a matter for the trial court’s discretion, and is
reversible only on a showing of an abuse of that discretion. Hoeing v. Williams, 880 N.E.2d
1217, 1221 (Ind. Ct. App. 2008). “An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effects of the facts and circumstances before the trial
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court or the reasonable, probable deductions to be drawn therefrom.” Id. (citation omitted).
In deciding whether to grant or deny grandparent visitation, the trial court should set
forth findings and conclusions that 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 A.L.C., 902 N.E.2d 343, 356 (Ind. Ct. App. 2009). Because the trial
court herein deviated from the requirements established in A.L.C., we hold the trial court
erred in granting Grandparents’ petition for visitation with G.N..
Regarding Grandparents’ access to G.N., the trial court found:
9. The Court finds that during [G.N’s] early life, before [G.N.’s] mother died,
[Grandparents] were an ever[-]present source of nurturing and love, ultimately
exemplified by [Grandparents] literally taking in the entire [N.] family for
multiple months both before and after their daughter’s death.
10. After [Father] removed himself and [G.N.] from [Grandparents’] family
home, approximately six (6) months after [Mother’s] death, testimony revealed
that initially [Grandparents] would continue to see [G.N.] on a regular basis,
including two (2) to three (3) nights a week and on Sundays where [G.N.]
would go to church with [Grandparents]. [Grandparents] testified that [G.N.]
“loves us very much”.
***
12. Ultimately, as testimony revealed, [Father] substantially decreased
visitation times with [Grandparents] and in order to respect [Father’s] wishes,
[Grandmother], who was asked by the teacher to continue volunteering in
[G.N.’s] school, declined to volunteer after the second grade year and,
generally, stayed away from [G.N.’s] school at the request of [Father].
***
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14. Evidence revealed that after [Father] became romantically involved with
another young lady, [Grandparents’] visitation with their grandchild
substantially decreased. . . .
15. After [Father] and [G.N.] moved out of [Grandparents’] home, [Father]
continued to allow [Grandmother] to provide some form of pre-school and
post-school daycare in that [Father] would drop [G.N.] off approximately at
6:00 o’clock in the morning; [Grandmother] would put [G.N.] to bed until 7:00
o’clock and get her to school by 8:00 o’clock a.m. After school,
[Grandmother] was allowed to pick [G.N.] up at school at 2:30 p.m. and
[Father] would get off work at 3:00 o’clock and pick her up at approximately
3:30 p.m. At some point during this period of time, [Grandfather] advised
[Father] that he is not able to see his granddaughter due to his work schedule
during the day that takes him away from home prior to [G.N.] coming at 6:00
a.m. and after [G.N.] leaving at 3:30 p.m., to which [Father] advised
[Grandfather] “too bad; my father works too.” In effect, [Grandfather] was
given very little opportunity to see his granddaughter – much less than the
minimal opportunity [Grandmother] was granted.
16. [Father] testified that he attempted to provide [an] equal amount of
visitation rights for his own parents as compared to [Grandparents]. However,
the Court finds that unlike [Grandparents], the paternal grandparents could, by
the witnesses’ own admission[s], come and go at will into [Father’s] home and
that [Father] regularly came and went into the paternal grandparents’ homes.
The court does not believe that there were equal amounts of visitation time
granted to [Grandparents] as compared to the paternal grandparents.
***
21. The Court finds that due to [Mother’s] death, [Grandparents] have been
denied reasonable visitation as grandparents, especially considering their
loving history with the beloved grandchild herein.
22. The Court finds that in considering the long, loving history of
[Grandparents’] involvement in [G.N.’s] life, it is in [G.N.’s] best interests that
[Grandparents] be provided court-ordered visitation rights, as they have
rebutted the presumption that a fit parent makes decisions regarding
grandparent visitation in the best interests of the child. The Court finds that
one (1) overnight every two (2) months provided as Father is “able” as
requested by Father is not in [G.N.’s] best interests. By [Father’s] own
admission, his proposal would be only six (6) overnights a year “if he is able”
to provide same. There is minimal certainty to even his proposal. Further, his
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proposal of pre-school or after-school daycare is “minimal” at best and in total
deprivation of [Grandfather’s] rights in that [Grandfather] is not even home
during those hours, and thus would not be able to see his granddaughter at all.
(App. at 7-9.) Based on the findings, the trial court concluded:
6. Our courts presume that a fit parent acts in his child’s best interests;
therefore, a trial court must give special weight to a fit parent’s decision
regarding non-parental visitation. The Act does not presume that grandparent
visitation is necessarily in the children’s best interests. Instead the burden is
on the grandparent, as the petitioning party, to demonstrate by a preponderance
of the evidence that court[-]ordered visitation is in the children’s best interests.
If such a showing is made, it falls to the Court to evaluate the evidence, assess
the circumstances, and carefully devise a visitation schedule that is in the
children’s best interests. McCune v. Frey, 783 N.E.2d 752, 2003 Ind. App.
LEXIS 221 (2003). Even though a trial court is required to give special weight
to the decision of a fit parent regarding grandparent visitation with his child,
this is a rebuttable presumption, and the petitioning grandparents bear the
burden of rebutting it. Crafton v. Gibson, 752 N.E.2d 78, 96-97 (Ind. Ct. App.
2001). The Court believes [Grandparents] have rebutted the presumption
herein in that, due to their deep involvement in [G.N.’s] life, it falls to this
Court to determine the result of different interests at stake in this case where
the parties cannot agree to the terms of visitation as opposed to cases where no
access has been allowed, those interests being the right to have a relationship
with a child versus a disagreement concerning how much access is appropriate.
Swartz v. Swartz, 720 N.E.2d 1219, 1222 (Ind. Ct. App. 1999).
(Id. at 11.)
In Swartz, a panel of our court reversed the trial court’s decision to grant grandparent
visitation pursuant to the Grandparents Visitation Act:
In this case, the trial court awarded visitation on alternating weekends,
fashioning a phase-in period of day-long visitation, then increasing to
overnight visitation. The adoption of this schedule means that C.S. will be
living among four different households on alternating weekends. This
arrangement runs counter to the goal of providing C.S. with the stability or
“supplementary” family support for which Grandparent Visitation was
designed. Further, because of the visitation schedule of alternating weekends,
the trial court’s order prohibited Mother from involving C.S. in any activities
that would take place on Grandparents’ weekends without first consulting with
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and receiving permission from them. The effect of this order is to allow three
people to have a veto power over all continuing weekend activities in which
C.S. might participate, a decision which would normally be left to Mother. In
addition to alternating weekends, each grandparent was awarded one week of
visitation during the summer. Therefore, in total, C.S., a nine-year-old girl,
would live outside of her Mother’s home seventy-three days per year. This
arrangement would fundamentally alter the relationship between Mother and
C.S., which by all accounts was close, healthy, and loving. The trial court
abused its discretion in awarding such substantial visitation to the paternal
grandparents. This schedule, akin to that devised for non-custodial parents,
has C.S. being shuttled among households and outside of Mother’s care for a
substantial period of time. This visitation is complicated by the possibility that
Father may also exercise his visitation rights at any time. We commend
Grandparents for taking such a keen interest in C.S.’s welfare and appreciate
C.S.’s good fortune in having so many people care about her. However, we
cannot agree that this disruptive schedule, which includes so many people and
households, is in C.S.’s best interests.
Our conclusion in this case is bolstered by the fact that Mother has
never denied Grandparents access to C.S., and all parties have had a good
relationship. While we agree that the Act applies in such cases, we note that
the interest at stake is different. Here, the Grandparents are not pursuing the
right to have a relationship with C.S., but the right to have the type of
visitation they want. In essence, they were not satisfied with the terms of the
visitation dictated by Mother, C.S.’s parent. In fact, Mother agreed to allow
Grandparents unlimited, unsupervised visitation. Grandparents, however,
pressed for the right to have C.S. spend the night in their homes, against
Mother’s wishes. We do not believe that this provides a more meaningful
opportunity to visit with C.S. than Mother’s proposal of open, unsupervised
access to C.S. or that pursuing the issue, rather than working with an
apparently agreeable Mother, was in C.S.’s best interest. The trial court
abused its discretion in determining that Grandparents were entitled to regular,
overnight visitation. Grandparents have essentially been given the visitation
rights of [a] parent in lieu of their son and grandson, Father, with no
corresponding duties. The trial court abused its discretion in setting visitation.
Swartz, 720 N.E.2d at 1222-23.
The same rationale applies in the instant case. Father never denied Grandparents
access to G.N.; instead he, over time, limited the frequency with which Grandparents saw
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G.N. During the hearing, he testified he did not let G.N. visit with Grandparents as much
through the week because she had more homework. Father offered to allow Grandparents to
participate in G.N.’s before and after school care, and to stay overnight with Grandparents
one night every two months. Like Swartz, this is not a case where a parent is completely
denying access such that Grandparents could not maintain a relationship with G.N.
Further, in making its conclusions of law, the trial court misapplied Swartz. The trial
court stated, “it falls to this Court to determine the result of different interests at stake in this
case where the parties cannot agree to the terms of visitation as opposed to cases where no
access has been allowed[.]” (App. at 11.) Swartz holds the opposite – that trial courts should
not be involved in the determination of visitation when the issue is not the denial of access to
the child but instead the grandparents’ desire to “have the type of visitation they want.”
Swartz, 720 N.E.2d at 1222.
While we commend Grandparents on their desire to have a close, meaningful
relationship with G.N., they must defer to Father, who has a constitutional right to direct
G.N.’s upbringing. Father has not denied Grandparents access to G.N., and he has proposed
a schedule of visitation. As the trial court’s conclusion that court-ordered visitation was
warranted relied on an erroneous interpretation of Swartz, we hold it abused its discretion
when it granted Grandparents visitation with G.N. Accordingly, we reverse and remand for
proceedings consistent with this opinion.
Reversed and remanded.
ROBB, C.J., and PYLE, J., concur.
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