Kirk R. Jocham v. Melba Sutliff , 2015 Ind. App. LEXIS 77 ( 2015 )

Feb 06 2015, 6:24 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert E. Shive Jonathan R. Deenik
Hollingsworth & Zivitz, P.C. Cross Pennamped Woolsey & Glazier
Carmel, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kirk R. Jocham, February 6, 2015
Appellant-Respondent, Court of Appeals Cause No.
29A02-1406-DR-424
v.
Appeal from the Hamilton Superior
Melba Sutliff, Court
Cause No. 29D03-0803-DR-359
Appellee-Intervenor,
The Honorable William J. Hughes,
Judge
Robb, Judge.
Case Summary and Issue
[1] Kirk Jocham (“Jocham”) appeals the trial court’s order granting grandparent
visitation to Melba Sutliff (“Sutliff”). Jocham raises several issues for our
review, of which we find the following dispositive: whether Sutliff had standing
to petition for grandparent visitation. Concluding that Sutliff was not a
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“grandparent” entitled to seek visitation rights at the time she filed her petition,
we reverse.
Facts and Procedural History
[2] Sutliff is Stephenie Jocham’s (“Stephenie”) mother. Jocham and Stephenie
were married and had one child together, K.J., born in 2004. Jocham and
Stephenie divorced in Hamilton County in 2008. Jocham married Emily
Jocham (“Emily”) on March 12, 2011. On June 2, 2011, Stephenie passed
away. On September 20, 2012, pursuant to a decree entered by the Hancock
Superior Court, Emily adopted K.J. and a new birth certificate was issued
showing K.J. as the child of “Kirk Robert and Emily Rebecca Jocham.”
Exhibit B.
[3] On July 16, 2013, Sutliff filed a Petition to Intervene in the Hamilton County
dissolution case for the purposes of filing a Petition for Grandparent Visitation.
Over Jocham’s objection, the Petition to Intervene was granted and the Petition
for Grandparent Visitation was scheduled for hearing. The trial court took the
matter under advisement following the hearing and allowed the parties to file
written summaries of their arguments. The trial court thereafter issued an order
denying the Petition for Grandparent Visitation, finding in pertinent part as
follows:
7. I.C. 31-17-5 et seq controls the issues of visitation sought by a
grandparent. I.C. 31-17-5-1 provides, in relevant part: (a) A child’s
grandparent may seek visitation rights if: (1) the child’s parent is
deceased; (2) the marriage of the child’s parents has been dissolved in
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Indiana. . . I.C. 31-17-5-9 provides, in relevant part: Visitation rights
provided for in section 1 or 10 . . . of this chapter survive the adoption
of the child by any of the following: (1) a stepparent.
8. The visitation rights of a grandparent provided for in these sections
are those acquired by a grandparent by court order prior to the
adoption of a child by a stepparent. An adoption by a stepparent
extinguishes any right of a grandparent (parent of a deceased biological
parent) to subsequently petition a court for an order establishing
grandparent visitation.
9. . . . The court is without authority to order grandparent visitation
for [Sutliff] even though it may well be in the best interests of [K.J.]
Appellant’s Appendix at 64.
[4] Sutliff then filed a Motion to Correct Error, alleging the trial court erred in
essentially finding she was without standing to pursue her Petition for
Grandparent Visitation. Following a hearing, the trial court granted the
motion,1 finding that notwithstanding Emily’s adoption of K.J.:
. . . [Stephenie] was, remains, and always will be K.J.’s biological
mother. Accordingly, [Sutliff] is the “maternal grandparent” under
I.C. 31-9-2-77. She may seek, pursuant to I.C. § 31-17-5-1, visitation
rights with K.J. because the child’s parent is deceased, and because
[Sutliff] is the biological parent of the child’s deceased biological
parent. The right provided for in section 1 is the right to seek
1
A senior judge originally heard Sutliff’s petition and issued the order denying it because the regular sitting
judge of the Hamilton Superior Court was on temporary medical leave. See Appellant’s App. at 83. The
regular judge heard the motion to correct error, issued the order granting the motion to correct error, and
subsequently heard and decided the merits of Sutliff’s petition for grandparent visitation. Id.
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grandparent visitation rights, and it is that right of [Sutliff’s] that has
survived the adoption of K.J.
Id. at 87 (emphasis in original) (citations omitted).
[5] Following a hearing on the merits of Sutliff’s petition for grandparent visitation,
the court issued the order that is the subject of this appeal granting Sutliff’s
petition and ordering visitation per a schedule set out therein, to include one
weekend a month, one week in the summer, and extra time around the
holidays. Jocham now appeals the trial court’s grant of Sutliff’s motion to
correct error and subsequent grant of her petition for grandparent visitation.
Discussion and Decision
I. Standard of Review
[6] Grandparents historically had no common-law right to visitation with their
grandchildren. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). In
1982, the Indiana legislature passed the Grandparent Visitation Act (“GVA”),
which is the exclusive basis for a grandparent to seek visitation. Id. Because
the GVA was enacted in derogation of the common law, it must be strictly
construed. In re Guardianship of A.J.A., 991 N.E.2d 110, 113 (Ind. 2013). To
seek visitation rights, a grandparent must have standing as prescribed by the
GVA; otherwise, the petition must be dismissed as a matter of law. Id.
[7] We generally review a ruling on a motion to correct error for an abuse of
discretion. Kornelik v. Mittal Steel USA, Inc., 952 N.E.2d 320, 324 (Ind. Ct. App.
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2011), trans. denied. However, Sutliff’s motion to correct error raised a question
regarding the interpretation of the GVA. Interpretation of a statute is a
question of law that we review de novo, giving no deference to the trial court’s
interpretation. Andrews v. Mor/Ryde Int’l, Inc., 10 N.E.3d 502, 504 (Ind. 2014).
In other words, we independently review the statute’s meaning and apply it to
the facts of the case we are reviewing. Id. Our goal in interpreting a statute is
to determine and give effect to the legislature’s intent, primarily by examining
the statute’s language. State v. Coats, 3 N.E.3d 528, 531 (Ind. 2014), cert. denied,
2015 WL 133244 (2015). “If a statute is clear and unambiguous, [we] do not
apply any rules of construction other than giving effect to the plain and ordinary
meaning of the language.” N.L. v. State, 989 N.E.2d 773, 777 (Ind. 2013)
(citation omitted).
II. Sutliff’s Standing under the GVA
[8] Sutliff asserted below, and the trial court ultimately agreed, that she has
standing to pursue grandparent visitation pursuant to Indiana Code section 31-
17-5-1(a)—which allows, inter alia, the grandparent of a child whose parent is
deceased or whose parents’ marriage has been dissolved to seek visitation
rights—and Indiana Code section 31-17-5-9—which provides that grandparent
visitation rights “survive the adoption of the child by . . . [a] stepparent.”
Jocham asserts that, notwithstanding section 31-17-5-9, Sutliff lacked standing
to pursue grandparent visitation because she filed her petition to establish
grandparent visitation rights after Emily adopted K.J.
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[9] There is no question that Sutliff is the parent of Stephenie, who is the biological
parent of K.J. Furthermore, there is no question that Jocham and Stephenie’s
marriage was dissolved in 2008 or that Stephenie is now deceased.
Accordingly, had Sutliff filed a petition for grandparent visitation at any time
after Jocham and Stephenie filed for divorce up to the day Emily’s adoption of
K.J. was final, we would agree with the trial court that she had the right to
petition for visitation rights and that any visitation rights granted to her as a
result of the petition survived the adoption.
[10] In In re Visitation of Menzie, 469 N.E.2d 1225 (Ind. Ct. App. 1984), trans. denied,
the child’s biological mother passed away in 1975 and her father subsequently
remarried. After the GVA was enacted in 1982, the maternal grandmother
sought and was granted visitation rights with the child. The child’s stepmother
then adopted the child in 1983 and the child’s parents filed a petition to modify
or terminate the grandparent visitation order which was denied. On appeal, we
held that the adoption cut off the grandmother’s existing visitation rights. Id. at
1227. In 1985, following the Menzie decision, the GVA was amended to add
now-section 31-17-5-9 providing that visitation rights survive a stepparent
adoption. When Menzie came before this court again following legislative
amendments to the GVA, we noted that the legislature had recognized a
difference between a traditional adoption resulting in a wholly new family unit
and an adoption resulting in a new member joining an existing family unit and
had “obviously chosen” to extend special protection to existing
grandparent/grandchild ties when it provided for post-adoptive visitation.
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Bailey v. Menzie, 542 N.E.2d 1015, 1017-18 (Ind. Ct. App. 1989). Subsequent
cases have therefore held that stepparent adoption does not extinguish
preexisting grandparent visitation rights. See, e.g., Sightes v. Barker, 684 N.E.2d
224, 227 (Ind. Ct. App. 1997) (holding where there was no dispute that
grandmother was a “grandparent” within the meaning of the GVA when she
filed her petition, her visitation rights with child were not extinguished by
child’s subsequent adoption by stepfather), trans. denied; cf. Baker v. Lee, 901
N.E.2d 1107, 1110 (Ind. Ct. App. 2009) (holding that because paternal
grandfather had obtained a court order for visitation through guardianship
proceedings because of his status as child’s grandparent, and because that order
predated child’s adoption by maternal grandparents, there was a sufficient
existing right to visitation to allow filing of a petition under the GVA post-
adoption).
[11] In this case, however, Sutliff had no existing grandparent visitation rights at the
time of the adoption, nor was she pursuing any. As noted above, at common
law, a grandparent had no right to visitation. See In re M.L.B., 983 N.E.2d at
585. Therefore, the GVA does not protect an existing right, it confers a right
upon a person who is statutorily entitled to ask for it. When Emily adopted
K.J., she became his legal mother in Stephenie’s stead. See Ind. Code § 31-19-
15-2(c) (stating that after a stepparent adoption, the adoptive parent “occup[ies]
the same position toward the child that the adoptive [parent] would occupy if
the adoptive [parent] [was] the biological [parent] . . . .”); see also In re Menzie,
469 N.E.2d at 1227 (noting the stepparent adoption statute “places the adoptive
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mother in the position of the child’s natural mother. Thus the adoptive mother
becomes the natural mother of the child. All legal ties between the adopted
child and her biological mother are severed.”). Following the adoption, Sutliff
remained K.J.’s grandmother biologically, emotionally, and morally, but at the
time she filed her petition for grandparent visitation, she was no longer legally
his grandparent. A “grandparent” is defined for purposes of the grandparent
visitation statute as “(1) the adoptive parent of the child’s parent; (2) the parent
of the child’s adoptive parent; and (3) the parent of the child’s parent.” Ind.
Code § 31-9-2-77. Sutliff has none of those relationships to Emily, who, as of
September 20, 2012, is legally recognized as K.J.’s parent. Therefore, on July
16, 2013, Sutliff had no standing to bring her petition. Cf. In re G.R., 863
N.E.2d 323, 326 (Ind. Ct. App. 2007) (holding that trial court properly denied
grandmother’s petition for grandparent visitation where mother’s parental rights
to child were terminated and grandmother’s petition was filed later that same
day; grandmother had no standing when she filed her petition because when
mother’s rights were terminated, she was no longer a “grandparent” as defined
by the GVA).
[12] Our decision is not inconsistent with and does not render section 31-17-5-9
meaningless. Previous court precedent has defined the “[v]isitation rights”
referenced in section 31-17-5-9 as visitation rights already exercised or
established by court order under section 31-17-5-1 prior to the adoption. See,
e.g., Sightes, 684 N.E.2d at 227; In re Marriage of J.D.S. and A.L.S., 953 N.E.2d
1187, 1190 (Ind. Ct. App. 2011) (although paternal grandmother at one time
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had visitation rights, they were terminated by court order; thus, when biological
father’s parental rights were later terminated simultaneously with mother’s new
husband adopting the child, “there were no existing visitation rights upon
which to bootstrap continued visitation in the wake of the adoption” and
grandmother did not have standing to pursue a post-adoption petition to
reinstate visitation), trans. denied. Our decision today is in line with those
decisions. Moreover, in the recently decided case In re Adoption of B.C.H., 22
N.E.3d 580 (Ind. 2014), our supreme court made it clear, in a different though
similar context, that we must carefully parse the words the legislature uses in a
statute in determining its intent. In B.C.H., it was the words “lawful custody”
in the statute describing persons who must consent to an adoption. See id. at
581 (referencing Ind. Code § 31-19-9-1(a)). Here, it is the words “visitation
rights” in section 31-17-5-9 regarding what right survives stepparent adoption.
The trial court believed what survives is “the right to seek grandparent visitation
rights . . . .” Appellant’s App. at 87 (emphasis in original). Our careful reading
of section 31-17-5-1, however, makes it clear that the phrase “visitation rights”
in the GVA does not mean the right to go to court to get visitation but rather,
the right established to visit. The language of section 1 states a grandparent
“may seek visitation rights” in certain circumstances. It does not say the
grandparent “has a right to seek visitation.” Therefore, reference to “visitation
rights” is not a reference to the right to seek visitation but rather to the right of
visitation already established. Correspondingly, section 31-17-5-9’s reference to
the “[v]isitation rights provided in section 1” as surviving stepparent adoption
means not that the ability to go to court survives the adoption but that the right
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to visit already given by a court survives. Because Sutliff had not sought
visitation rights pursuant to section 31-17-5-1 prior to the adoption, no right to
visitation had already been given by a court, and she had no visitation rights for
section 31-17-5-9 to protect.
[13] We note the trial court’s concern that Sutliff did not get notice of the adoption
petition, the granting of which ultimately cut off her right to seek visitation.
However, she was not entitled to any notice. 2 See Ind. Code ch. 31-19-2.5.
Moreover, this is not a situation where Jocham strung Sutliff along by giving
her time with K.J. to placate her and then suddenly and without warning cut
her off after the adoption. In this case, although Sutliff alleged she was
unaware of the filing of the petition for adoption, she was clearly aware that she
should perhaps seek to protect her continued relationship with K.J., and
moreover, she had ample time to do so. Sutliff could have sought grandparent
visitation rights as early as 2008 when Jocham and Stephenie were divorced or
after Stephenie’s death in 2011. And her overnight visits with K.J. were
curtailed in June of 2012, after which she saw K.J. only sporadically. K.J.’s
adoption by Emily was final in late September of 2012. Sutliff did not file her
petition until July of 2013.
2
One way to avoid cutting off a grandparent’s opportunity to seek visitation rights by catching him or
her unawares would be to amend the adoption statute to require notice of a petition for adoption be
given to anyone who would be eligible under the GVA to seek grandparent visitation rights as of the
time the petition is filed.
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[14] In the original order denying Sutliff’s petition for lack of standing, the trial court
acknowledged that grandparent visitation “may well be in the best interests of
[K.J.],” Appellant’s App. at 64, and, upon granting Sutliff’s motion to correct
error and hearing the merits of her petition, the trial court specifically found in
its order granting grandparent visitation that Jocham’s conduct had been
unreasonable and that “a visitation order in this case promotes K.J.’s best
interests,” id. at 105.3 We sympathize with Sutliff’s plight, and we recognize
that, especially in family law matters, more is undoubtedly involved than the
legally relevant facts disclose. But the legally relevant facts are those upon
which we must base our decision, and here, those facts lead inescapably to the
conclusion that Sutliff had no legal right to seek grandparent visitation at the
time she filed her petition. Regrettably, in situations such as this, the result may
be inequitable and may not serve the purpose of the GVA, which is to
“strengthen familial bonds and promote inter-generational contact” when the
nuclear family no longer exists. In re Visitation of J.D.G., 756 N.E.2d 509, 512
(Ind. Ct. App. 2001). However, it is not our place to judicially expand the
statute beyond its explicit terms or to craft exceptions for specific circumstances.
3
Where issues involving a child arise, the primary concern is the best interests of that child. But the trial
court can only engage in a best interests inquiry when a case is properly before it. The best interests of the
child do not determine who has standing to raise the issue; they only determine whether a person with legal
standing is entitled to the relief sought. When ruling on a properly filed petition, the trial court can assess the
reasonableness of each party’s actions and level the playing field between an unreasonable denial of visitation
by a parent and an unreasonable demand for visitation by a grandparent by carefully crafting a visitation
order in terms of the time, frequency, and conditions of visitation that will best suit the child’s interests.
Here, though, the trial court should not have reached these questions, and because we hold the trial court
erred in allowing Sutliff’s petition to proceed, we do not reach them either.
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The legislature drew a fine line on this issue between protecting inter-
generational relationships and protecting newly-formed adoptive family units.
Stepping into the role of an adoptive parent and building a successful new
family unit takes courage and support. There must be some assurance that the
circumstances as they exist at the time of the adoption will not be thrown into
disarray months or even years later by a grandparent newly seeking visitation.
[15] The trial court erred in finding Sutliff had standing, in granting her motion to
correct error, and in ordering grandparent visitation between Sutliff and K.J.
Conclusion
[16] Because Sutliff filed her petition seeking grandparent visitation after K.J. had
been adopted by Emily, she was no longer legally entitled to grandparent
visitation rights. The trial court erred as a matter of law in granting Sutliff’s
motion to correct error, considering her petition on the merits, and ordering
grandparent visitation. The judgment of the trial court is reversed.
[17] Reversed.
Bailey, J., and Brown, J., concur.
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