In Re the Visitation of L-A.D.W R.W. v. M.D. and W.D. ( 2015 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LAURIE BAIDEN BUMB KEITH W. VONDERAHE
Bumb & Vowels, LLP MOLLY E. BRILES
Evansville, Indiana Ziemer Stayman Weitzel & Shoulders LLP
Evansville, Indiana
THOMAS A. MASSEY
Massey Law Offices
Evansville, Indiana
Jan 13 2015, 6:36 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE VISITATION OF L-A.D.W )
)
R.W., )
)
Appellant-Respondent, )
)
vs. ) No. 82A01-1402-DR-82
)
M.D. AND W.D., )
)
Appellees-Petitioners. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Mary Margaret Lloyd, Judge
Cause No. 82D04-1305-DR-465
January 13, 2015
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Appellant/Respondent, R.W. (“Father”), appeals the trial court’s order granting
Appellees/Petitioners, M.D. (“Grandmother”) and W.D. (“Grandfather”) (collectively,
“Grandparents”), grandparent visitation with his minor daughter, L.W. Grandparents are
the parents of L.W.’s mother (“Mother”). They acted as caregivers for L.W. during
significant periods of her life and petitioned for grandparent visitation after Mother died
from cancer. The trial court found that, although Father was a fit parent, Grandparents
had rebutted the legal presumption that his decisions about Grandparents’ visitation were
in L.W.’s best interests because there was evidence that he intended to deny grandparent
visitation absent a court order. As a result, the trial court awarded Grandparents
scheduled visitation.
On appeal, Father argues that the trial court erred in granting Grandparents
visitation because (1) it did not give his decisions regarding visitation special weight; (2)
it misrepresented the amount of visitation he had allowed Grandparents; and (3)
Grandparents did not rebut the presumption that his decisions concerning L.W.’s interests
were in her best interests. Alternately, he argues that the amount of visitation the trial
court awarded Grandparents exceeds that contemplated by the Grandparent Visitation
Act. Because the trial court did give Father’s decisions regarding visitation special
weight, did not misrepresent the amount of visitation Father had allowed and intended to
allow Grandparents, and did not err in concluding that Grandparents had rebutted the
presumption in favor of a fit parent’s decisions regarding grandparent visitation, we
conclude that the trial court did not err in granting Grandparents visitation. However, we
2
agree that the trial court abused its discretion in the amount of visitation it awarded
Grandparents, and we remand to the trial court to amend the amount of visitation
awarded.
We affirm in part, reverse in part, and remand.
ISSUES
1. Whether the trial court erred in granting Grandparents visitation with
L.W.
2. Whether the trial court abused its discretion in the amount of visitation it
granted Grandparents.
FACTS
Mother and Father (collectively, “the Parents”) married in 2002. They had one
child together, L.W., who was born in January 2005 in North Carolina. Mother is the
only child of her parents, Grandparents, and L.W. is Grandparents’ only grandchild.
After L.W.’s birth, Grandparents lived with the Parents so that they could take care of
L.W. while Mother continued her work as a pediatric dentist and Father completed his
medical school residency. During this time, Grandparents did “everything you do for a
newborn baby.” (Tr. 237).
When L.W. was a year old, the Parents moved to Evansville, Indiana, an hour
away from Grandparents’ home in Madisonville, Kentucky.1 Mother opened a new
pediatric dentistry practice in Evansville and shortened her hours so that she worked only
two to four days a week. Grandparents continued to care for L.W. during the days that
1
It is not clear whether Grandparents lived in Madisonville, Kentucky when the Parents initially moved
to Evansville. However, at some point they bought a home there and split their time between
Madisonville and seeing Mother and L.W. in Evansville.
3
Mother was at work. When L.W. became old enough to attend pre-school, Grandparents
would fix her breakfast, get her dressed, and take her to school. Throughout L.W.’s early
childhood, Mother and Grandparents served as L.W.’s primary caretakers.
In late July 2010, when L.W. was five years old, Mother was diagnosed with
stage four colon cancer. Mother asked Grandparents to move in with the Parents again to
care for her and L.W., which Grandparents did. Typically, Grandmother would fix
L.W.’s breakfast and get her ready for school; take L.W. to school and pick her up after
school, sometimes with Mother, if Mother was feeling well; read to L.W. at night; do the
family’s laundry and chores; and cook for the family. Mother received multiple
treatments from 2010 to 2013, some of which were out of town. Every time Mother went
out of town for treatments, Grandparents and L.W. went with her. If L.W. missed school,
her teachers would send her assignments, and Grandmother, a retired teacher, would
ensure that she completed her homework.
In early 2013, Mother filed for a dissolution of marriage from Father. On March
1, 2013, the trial court held a provisional hearing to determine temporary custody
arrangements. At the hearing, Mother testified that Father was an “absent” and “non[-
]participatory” parent. (Tr. 16, 45). She claimed that, although this was partly due to his
heavy work schedule, it was also due to his extracurricular activities, such as cycling,
flying his airplane, going to the gym, and playing video games. She stated that Father’s
time with L.W. was “minimal” and that there were days when he never saw L.W. (Tr.
47).
4
Father testified and admitted that he was not always able to attend L.W.’s
extracurricular activities as a result of work. He also mentioned that the marital situation
between himself and Mother “ha[d] [not] been excellent for a long time” and that it was
“always [his] feeling that having her parents living with [them] [was] not a positive
situation.” (Tr. 66). At the conclusion of the hearing, the trial court granted the Parents
temporary, joint legal custody and Mother temporary, primary physical custody pending
the resolution of the dissolution proceedings.
Shortly thereafter, Mother’s health worsened, and she asked Grandparents to
petition for grandparent visitation with L.W. if she died. She also included a provision in
her will stating that:
My estranged husband, [Father], is recognized by law as the natural
guardian of our daughter, [L.W.]. As [Father] has had no significant
relationship to date with our daughter, [L.W.], I would direct that my
parents, [Grandparents], seek generous visitation rights with [L.W.], and
that, in the event my estranged husband is deemed unfit, or fails to
demonstrate a willingness to appropriately parent our child, [L.W.], or in
the event that the appointment of a guardian for [L.W.] . . . becomes
necessary or convenient, I nominate and appoint my parents,
[Grandparents], or either of them individually, to serve as guardians.
(Father’s Ex. 9 at 8).
On April 9, 2013, Mother’s attorney, Keith Vonderahe (“Vonderahe”), contacted
Father’s attorney and told him that Grandparents planned to file a petition for visitation.
Vonderahe also told Father that Grandparents would be willing to forego a legal petition
if Father would agree to visitation without a court order. However, Father did not
respond to the e-mail. Subsequently, Mother died on April 17, 2013, while the
5
dissolution proceedings were still pending. The day that she died, Grandparents filed a
petition requesting grandparent visitation with L.W.2
A few days prior to Mother’s death, Father contacted a mental health counselor
named Laura Ellsworth (“Ellsworth”) to help L.W. deal with her grief and transition to
his custody. Based on Ellsworth’s advice, Father arranged for L.W. to meet with another
therapist, Lisa Provost (“Provost”), for counseling. L.W. met with Provost approximately
every three to four weeks thereafter.
Father also asked Ellsworth to determine L.W.’s best interests in terms of
grandparent visitation. Before the end of April, Ellsworth met with Father and L.W. two
times in her office and once in their home. She also met with Grandparents once in her
office. From the first time she saw L.W. and Father together, she observed that “[L.W.]
like[d] to sit in her father’s lap and poke on her father’s face[,] and she like[d] to
challenge him and tease him.” (Tr. 145). Ellsworth thought their attachment “appeared
strong from the very beginning.” (Tr. 197-98). However, she also found that L.W. had a
“strong bond” with Grandparents and felt that it was “important for them to continue to
maintain a relationship.” (Father’s Ex. 3 at 2). She perceived that there was “some
animosity from both sides” between Grandparents and Father because Father felt that
Grandparents were not communicating with him and had withheld L.W. from him while
Mother was sick, and because Grandparents were concerned that Father did not have a
strong parental bond with L.W. (Tr. 133).
2
Grandmother testified that they filed their petition the day that Mother died. However, it is apparent that
they originally filed their petition under Mother’s dissolution cause number and later filed the petition
under this cause on May 16, 2013.
6
On April 30, 2013, Ellsworth recommended a temporary grandparent visitation
schedule for Father and Grandparents to follow until L.W. returned to school the
following Fall. The schedule provided for Grandparents to have visitation with L.W.:
(1) on Tuesdays from 3:00 to 6:00 p.m. until the end of the school year; (2) one Saturday
per month from 7:00 a.m. to 8:00 p.m.; and (3) for one five-day consecutive period
during the summer. (App. 89). Ellsworth also encouraged Grandparents to attend L.W.’s
swim meets and other spectator activities. She intended to treat the summer as an
“evaluative” period so that she could further observe L.W.’s relationships with Father and
Grandparents before issuing final recommendations to the trial court. (App. 89).
Father agreed to follow Ellsworth’s recommendations and sent the proposed
schedule to Grandparents’ lawyer. In the months that followed, however, he did not
allow Grandparents visitation on any of the Tuesdays before L.W.’s school year ended or
on any Saturdays throughout the evaluative period. He did allow visitation for a five-day
period in the summer, which, with Ellsworth’s agreement, was divided into two visits
because L.W. was suffering from separation anxiety at the thought of leaving Father for
five days in a row. Father also took L.W. to meet Grandparents for lunch on Mother’s
Day, on a day in June, and on a day in September, and he allowed L.W. to spend one
Sunday with Grandparents. Throughout the summer, Father allowed Grandparents to see
L.W. at her sporting events, which Grandparents attended.
Because Grandparents attended L.W.’s sporting events, they got to know one of
L.W.’s summer nannies, Jamie Riedford (“Riedford”). One day when Grandparents were
attending L.W.’s swim practice, they asked if Riedford and L.W. would like to go to
7
lunch. Riedford called Father to ask permission. He gave his permission, so she and
L.W. went to lunch with Grandparents. Later that night, Father asked Riedford to come
over to his house, where he “asked [her] to keep [her] guard up and told [her] that
[Grandparents] were [not] being nice to [her] for any reason other than to get to him and
[in] effect, get information for [Grandparents’] court case.” (Tr. 215). Riedford did not
agree with Father, and he continued the conversation later that night for an hour over the
phone. Father also had his lawyer write Grandparents’ lawyer a letter asking them not to
communicate with L.W. through any third parties. For the rest of the summer,
Grandparents continued to speak with Riedford but did not communicate with her about
L.W.
After Ellsworth provided her initial recommendations to Father and Grandparents,
Father and L.W. continued to meet with her. They also met with Doctor Rebecca Luzio
(“Dr. Luzio”), the expert that Grandparents hired for the visitation proceedings.
Ellsworth had five home visits with Father and L.W. but did not meet with Grandparents
and L.W. together. Dr. Luzio met with Father and Grandparents twice each; once with
Grandparents and L.W.; twice with Father and L.W.; and once with L.W. by herself.
Ellsworth and Dr. Luzio “collaborated regularly” on their observations, and they
conducted two joint sessions with Father and Grandparents. (Tr. 134). The joint sessions
were intended to bring Father and Grandparents together so that they could find common
ground and start discussing visitation. During the first joint session, Grandfather became
“very upset and angry” with Father about Father’s relationship with Mother and at one
point “[came] up off the couch and started across the room towards [Father].” (Tr. 150).
8
Both Ellsworth and Dr. Luzio rose and stood between him and Father. Soon thereafter,
Ellsworth and Dr. Luzio ended the session and asked Father and Grandparents to leave
separately. The second joint session was also unsuccessful, although Grandfather did not
approach Father again. Because both sessions had been unsuccessful, Ellsworth and Dr.
Luzio did not schedule a third session. Dr. Luzio did, however, recommend follow-up
grief and anger management counseling to Grandfather, which he completed.
On September 27, 2013 and October 25, 2013, the trial court held a hearing on
Grandparents’ petition for grandparent visitation. At the hearing, Ellsworth and Dr.
Luzio submitted their recommendations for visitation, which they had developed based
on their interactions with Father, L.W., and Grandparents over the summer. Both agreed
that Father was a fit parent and that L.W. and Father had a strong relationship. Ellsworth
noted that L.W. had become increasingly frustrated by Grandparents’ contact with her
over the summer. She stated that it appeared that L.W. was beginning to resent Father’s
ongoing encouragement that she contact Grandparents. As a result, Ellsworth
recommended that Father be permitted the right to determine L.W.’s schedule of
visitation with Grandparents. She concluded, “Based on the amount of contact [that] has
occurred, and has been encouraged by [Father] over the summer, there [is not] a reason to
believe he will not follow through on continuing to encourage this relationship.”
(Father’s Ex. 5 at 5).
Dr. Luzio noted that Father “appear[ed] to have grown as [L.W.’s] father” and that
L.W. “loves him very much.” (Father’s Ex. 8 at 4). However, she also stated that,
because Grandparents had been “key members” of L.W.’s life, it was “disturbing” that
9
Father had only allowed them three overnight visits with L.W. and one visit at their home
since Mother had died.3 (Father’s Ex. 8 at 5). She had “grave concern[s]” about Father’s
willingness to provide future grandparent visitation as he had allowed so little visitation
during the period when he had been in control. (Tr. 244). She noted that on occasions
Father had offered Grandparents visitation on the condition that they first had to answer a
list of questions that were unrelated to L.W. Then, Father would withdraw his offer to
allow visitation if they did not respond to his questions the way he wanted. As a result of
all of these factors, Dr. Luzio recommended that the trial court impose a set schedule for
Grandparent visitation, in spite of the fact that she considered Father a fit parent.
L.W.’s summer nanny, Riedford, also testified at the hearing. She told the court
that she had observed L.W.’s interactions with Grandparents at swim meets over the
summer and had noticed that early in the summer L.W. was “very excited” to see
Grandparents. (Tr. 208). She would “run up to them when they got there,” be “very
loving towards them,” and “be upset when they [left].” (Tr. 208). Then, “towards the
end [of the summer] it would be more like she did [not] even want to talk to them.” (Tr.
208). According to Riedford, L.W. had told her that “her daddy did [not] like when she
talked to her grandparents if he did [not] know about it” and that he thought it was
“weird” for her to see her grandparents as much as she did. (Tr. 212, 214). Riedford also
noticed that L.W. would get worked up and upset, believing that she would get in trouble
if she was around Grandparents without Father. (Tr. 212). Finally, Riedford testified that
Father had told her that he wanted to terminate L.W.’s relationship with Grandparents.
3
As stated previously, Father actually allowed Grandparents five overnight visits.
10
She said that, on one occasion, he “listed off names of members of his family and [] said
‘[L.W.] has all of these people in her life[,] and what is minus two[?’]” (Tr. 229).
When Grandmother testified, she stated that she thought that if they were going to
have visitation with L.W., it would have to be court-ordered, because Father had not
allowed them visitation in spite of Ellsworth’s proposed schedule. She also mentioned
that, although Father had allowed Grandparents to talk to L.W. on the phone throughout
the summer, L.W. had always been on speakerphone, so they could not talk privately.
Grandfather discussed his reaction to Father in the joint session and stated that he
“did not” and “will not” confront Father about anything around L.W. (Tr. 384).
Grandparents’ attorney asked him whether he would be able to visit L.W. without
expressing his sentiments about Father, and he responded, “She’ll never hear it from me.”
(Tr. 386).
When Father testified, he claimed that he had proposed Ellsworth’s visitation
schedule to Grandparents but had not followed it because Grandparents had never agreed
to the arrangement. He argued that he had, nevertheless, allowed Grandparents
significant contact with L.W. In support of this argument, he introduced a calendar
documenting L.W.’s contact with Grandparents. According to the calendar, Father had
allowed Grandparents contact with L.W. six out of twelve days after Mother’s death in
April; eleven days in May; eight days in June; eleven days in July; seven days in August;
and four days in September. However, almost all of these contacts occurred when
Grandparents attended L.W.’s sporting or school events. Father also testified about his
concerns with taking L.W. to visit Grandparents and stated “I don’t take my child to play
11
with people that don’t like me,” although he later admitted that L.W. needed to grieve,
and she needed to spend time with her grandparents to do so. (Tr. 336).
At the conclusion of the hearing, the trial court took the matter under advisement.
On January 22, 2014, it entered an order granting Grandparents’ petition. In its order, the
trial court recognized that Father was a fit parent but concluded it was in L.W.’s best
interests to continue her relationship with Grandparents, and Father had made “clear
statements regarding his intention and desire to remove the Grandparents from [L.W.’s]
life.” (App. 20). As a result of Father’s stated intention to remove Grandparents from
L.W.’s life and his admission that he had not abided by Ellsworth’s recommended
visitation schedule,4 the trial court determined that Grandparents had rebutted the
presumption that Father’s decisions about grandparent visitation were in L.W.’s best
interests. The court ordered that Grandparents receive structured and unsupervised
visitation: (1) one overnight on one weekend during even-numbered months; (2) two
overnights on one weekend during odd-numbered months; (3) every Tuesday during the
school year until 7:00 p.m. and during the summer from 10:00 a.m. to 7:00 p.m.; (4) eight
hours on Mother’s birthday; (5) four hours on Grandparents’ birthdays; (6) one overnight
during the week of L.W.’s birthday; and (6) five consecutive days during the summer.
Father now appeals.
4
The trial court did not find Father’s argument that Grandparents had not agreed to the proposed
visitation schedule credible as it contradicted an e-mail Father sent Ellsworth in which he indicated that
he had agreed to follow her recommendations during the summer months.
12
DECISION
Grandparents are “‘members of the extended family whom society recognizes as
playing an important role in the lives of their grandchildren.’” Swartz v. Swartz, 720
N.E.2d 1219, 1221 (Ind. Ct. App. 1999) (quoting Sightes v. Barker, 684 N.E.2d 224, 230
(Ind. Ct. App. 1997), trans. denied). By enacting the Grandparent Visitation Act, our
General Assembly recognized that “a child’s best interest is often served by developing
and maintaining contact with his or her grandparents.” McCune v. Frey, 783 N.E.2d 752,
755 (Ind. Ct. App. 2003) (quoting Swartz, 720 N.E.2d at 1221). However, grandparents
“‘do not have the legal rights or obligations of parents,’ and ‘do not possess a
constitutional liberty interest in visitation with their grandchildren.’” Id. (quoting Swartz,
720 N.E.2d at 1222). Therefore, the Grandparent Visitation Act balances two competing
interests: the rights of parents to raise their children as they see fit and the rights of
grandparents to participate in the lives of their grandchildren. Swartz, 720 N.E.2d at
1222.
Under the Grandparent Visitation Act, a grandparent may seek visitation if the
child’s parent is deceased. IND. CODE § 31-17-5-1. 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 making this determination, the trial court is to “‘presume that a fit parent’s
decision is in the best interests of the child,’” although that presumption is rebuttable.
Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind. Ct. App. 2004) (quoting Crafton v.
Gibson, 752 N.E.2d 78, 96 (Ind. Ct. App. 2001)). The trial court must also give “special
weight” to a parent’s decision to deny or limit visitation and “some weight” to the fact
13
that a parent has agreed to some visitation. Id. In total, there are four factors that a trial
court must address when ruling on a petition for grandparent visitation: (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
parent has denied visitation or simply limited visitation; and (4) whether the grandparent
has established that visitation is in the child’s best interests. In re K.I., 903 N.E.2d 453,
462 (Ind. 2009). The trial court may also consider whether grandparents have had or
have attempted meaningful contact with the child. Ramsey v. Ramsey, 863 N.E.2d 1232,
1238 (Ind. Ct. App. 2007). If a trial court allows visitation, that visitation must be only
“occasional, temporary” visitation that does not infringe on a parent’s fundamental rights.
K.I., 903 N.E.2d at 462.
When a trial court issues an order on a petition for grandparent visitation, it must
include written findings and conclusions. I.C. § 31-17-5-6. Thus, on review of a trial
court’s order granting grandparent visitation, we apply the Indiana Trial Rule 52
standard, which provides that we may not set aside the trial court’s findings or judgment
unless they are clearly erroneous. Megyese, 808 N.E.2d at 1213. First, we determine
whether the evidence supports the findings and then whether the findings support the
judgment. Id. 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. Id. We do not reweigh the evidence or determine witness
credibility. Id. Rather, we consider only the evidence most favorable to the trial court’s
judgment, with all reasonable inferences drawn in favor of the judgment. Id.
14
On appeal, Father argues that the trial court erred by granting Grandparents’
petition for visitation. Alternately, he asserts that even if the trial court did not err in
granting visitation, it abused its discretion in determining the amount of visitation. He
contends that the amount of visitation the trial court awarded exceeds the “occasional,
temporary” visitation contemplated by the Grandparent Visitation Act. See K.I., 903
N.E.2d at 462.
1. Grant of Visitation
First, we will address Father’s argument that the trial court erred in granting
visitation. He disputes three of the four factors that the trial court was required to address
in its order. He admits that the trial court acknowledged he is a fit parent and, therefore,
enjoys a presumption that his decisions regarding visitation are in L.W.’s best interests.
However, he argues that the trial court (1) failed to give special weight to his decisions
regarding visitation; (2) erred in assessing the amount of visitation he had allowed and
would continue to allow Grandparents; and (3) erred in determining that Grandparents
had rebutted the presumption that his decisions concerning visitation were in L.W.’s best
interests. We will address each factor in turn.
A. Special Weight
Under the Grandparent Visitation Act, the trial court must give special weight to a
fit parent’s decision to allow or deny grandparent visitation. Megyese, 808 N.E.2d at
1213. Here, the trial court stated in its conclusions that it gave Father’s decisions
concerning visitation special weight. However, the trial court also made two findings
that Father claims are inconsistent with this conclusion and show that the trial court did
15
not actually afford his decision any special weight. Specifically, the trial court found
that:
At the hearings, the Father did not articulate any specific evidence which
supported his claim that his parental relationship with [L.W.] was
undermined by the Grandparents other than his belief that prior to the
Mother’s death, they assisted the Mother in his not seeing [L.W.]. Since
the death of the Mother, Father cited no specific evidence of “undermining”
by the Grandparents other than overindulging [L.W.] in “sweets.”
(App. 18). The trial court also found that:
Although the Grandfather demonstrated some anger and frustration at the
Father during a joint counseling session where he stood up and told the
Father that he was “not a man,” the Grandfather has completed the three
grief counseling sessions recommended by Dr. Luzio and cannot seriously
be considered a threat to [L.W.]. [L.W.] was not present during the
incident, and there is no evidence that either Grandparent has ever been
anything but loving and appropriate while [L.W.] is nearby.
(App. 22). Father claims that the evidence does not support these findings. He also
claims that these findings do not support the trial court’s conclusion that it gave his
decision to limit Grandparents’ visitation special weight because they, instead, indicate
that the trial court ignored Father’s reasons for limiting Grandparents’ visitation.
At the hearing, Father testified that he had two concerns justifying his reluctance
to allow Grandparents visitation—his concern that Grandparents had undermined and
were continuing to undermine his relationship with L.W. and his concern that it was not
in L.W.’s best interests to expose her to Grandparents’ hostility towards him. Essentially,
Father argues that if the trial court had granted his decision to limit Grandparents’
visitation special weight, it would not have discounted these concerns in its findings. On
review, we will first consider whether the evidence supports these findings and, then,
16
whether the trial court’s findings support its conclusion that it gave Father’s decision
regarding visitation special weight.
With regard to his concern that Grandparents had undermined him, Father argues
that the trial court’s finding is erroneous because he presented evidence at the hearing
that Grandparents had undermined him by arranging to see L.W. through her nanny,
Riedford, even after he requested that they make such arrangements only through him.
He also claims that the finding fails to consider his allegation that the Grandparents
misled Riedford into believing that he wished to terminate their relationship with L.W.
Contrary to Father’s contentions, the issue of whether Grandparents intended to
undermine Father by making arrangements through Riedford was disputed at trial.
Riedford testified that Grandparents merely talked to her when they were attending
L.W.’s swim meets, which they had attended for L.W.’s entire life and which were a
component of Ellsworth’s recommended visitation schedule. Grandparents went to lunch
with Riedford and L.W.—with Father’s permission—on one occasion when they also
planned to attend L.W.’s swim practice, but there is no other evidence that they otherwise
arranged to visit with L.W. without Father’s knowledge. Riedford also testified that after
Father told Grandparents not to communicate through a third party, Grandparents abided
by his request and did not communicate with her concerning L.W.
Likewise, Father’s allegation that Grandparents misled Riedford by telling her that
Father was trying to terminate their relationship with L.W. was also disputed at trial.
Riedford testified that it was Father, not Grandparents, who told her that he wished to
terminate Grandparents’ relationship with L.W.
17
Although the trial court did not make a finding explicitly addressing Father’s
contention that Grandparents had undermined him through their interactions with
Riedford, the trial court heard Father’s evidence and by implication did not find that
evidence persuasive. Therefore, in light of the evidence supporting the trial court’s
finding that Grandparents had not undermined Father, we conclude that the trial court’s
finding was not erroneous. It is not our place to reweigh the evidence on appeal.
Megyese, 808 N.E.2d at 1213.
With regards to Father’s second concern, that it was not in L.W.’s best interests to
expose her to Grandparents’ hostility towards him, he argues that the trial court did not
sufficiently address Grandparents’ anger towards him in its findings of fact and
conclusions of law. However, the only evidence Father raises that the trial court did not
cite is that when Grandparents and L.W. met with Dr. Luzio on July 13, 2013, L.W.
expressed her preference to see Grandparents less frequently and for brief periods of
time. He claims that this evidence demonstrated that L.W. was aware of Grandparents’
hostility towards him. This is merely an invitation to reweigh the evidence, as there is
also evidence in the record that L.W.’s request related to her desire to stay in Evansville
for her extracurricular activities. As we have stated, we may not reweigh the evidence on
appeal. Megyese, 808 N.E.2d at 1213. Because Father does not otherwise cite any
evidence of Grandparents’ anger that the trial court should have cited that it did not, we
will not address this issue further.
Turning to whether the trial court’s findings supported its conclusion that it gave
Father’s decision regarding Grandparents’ visitation special weight, we reiterate that,
18
essentially, Father argues that if the trial court had granted his decisions special weight, it
would not have discounted his concerns in its findings. He does not cite any legal
support for his argument that his concern that Grandparents would undermine him was a
justifiable reason for limiting visitation, but he claims his concern regarding
Grandparents’ anger towards him was justified based on our conclusion in Visitation of
C.L.H., 908 N.E.2d 320 (Ind. Ct. App. 2009), where we held that C.L.H.’s mother was
justified in denying visitation to her parents as a result of the hostility between her and
her parents.
In making this argument, Father misconstrues the “special weight” requirement.
We have previously explained that “the requirement that the trial court afford the parent’s
decision special weight deals with the trial court’s process of weighing the evidence.”
Ramsey, 863 N.E.2d at 1239. It “‘does not require a trial court to take at face value any
explanation given by a parent,’” and the trial court is not required to accept a parent’s
reasons as true. Hicks v. Larson, 884 N.E.2d 869, 875 (Ind. Ct. App. 2008) (quoting
Spaulding v. Williams, 793 N.E.2d 252, 260 (Ind. Ct. App. 2003)), trans. denied. “‘It is
the trial court’s prerogative to listen to the evidence and determine, in light of that
evidence, whether a parent’s alleged justification for denying or restricting visitation with
grandparents holds water.’” Id. (quoting Spaulding, 793 N.E.2d at 260). Therefore, as
long as a trial court affords a parent’s decision regarding visitation special weight, the
trial court may still find that a parent’s reasons for denying visitation are not credible or
that other factors in the record outweigh the parent’s decision. See id.
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Because a trial court is not required to agree with a parent’s reasons for his or her
decision concerning visitation in order to grant that decision special weight, we disagree
with Father’s contention that the trial court’s findings were inconsistent with its
conclusion that it granted his decision special weight. See id. It is clear that the trial
court here considered Father’s concerns, even if it did not ultimately find in Father’s
favor. As the special weight requirement does not require the trial court to apply the
same weight to Father’s concerns as he does, we will not reweigh the evidence. See
Hicks, 884 N.E.2d at 875 (holding that the special weight requirement does not require
the trial court to accept a parent’s reasons for denying visitation as true); Megyese, 808
N.E.2d at 1213 (stating that we may not reweigh the evidence on appeal). Accordingly,
we determine that the trial court did not err in concluding that it had granted Father’s
decisions concerning visitation special weight.
B. Denial of Visitation
The next factor a trial court must address in its findings and conclusions
concerning grandparent visitation is whether the parent has denied visitation or simply
limited visitation. Megyese, 808 N.E.2d at 1213. Here, the trial court made multiple
findings and conclusions on this point.
On the subject of Father’s past history of visitation, the trial court found that
“[a]lthough the Grandparents watched [L.W.’s] extracurricular events, Father generally
did not allow any Tuesday or Saturday visits. Any telephone communications between
[L.W.] and her Grandparents were always conducted on a speaker phone with the Father
present.” (App. 15). The trial court also found:
20
Father testified he did not follow his own expert’s visitation
recommendations because ‘there was never an agreement’ between himself
and the Grandparents to follow such a schedule. This testimony
contradicted Father’s email to Ms. Ellsworth where he indicated he agreed
to follow her recommendations during “the summer months.” (See 8/30/13
email in Dr. Luzio’s records).[5] In reality, Father only followed Ms.
Ellsworth’s recommendations that the Grandparents be allowed to attend
[L.W.’s] sporting events as spectators, an activity the Grandparents had
always done, and the three (3) days and (2) day overnight visits.
(App. 16).
The trial court then concluded:
although the Father has allowed some contact between the Grandparents
and [L.W.,] . . . he has made clear statements regarding his intention and
desire to remove the Grandparents from [L.W.’s] life. Based on these
stated intentions, as well as Father’s own admission that he did not abide by
the visitation schedule recommended by his own expert, the Court finds and
concludes as a matter of law that had this proceeding not been pending, it is
likely that the Father would have denied all visitation between the
Grandparents and [L.W.]. The relationship between [L.W.] and her
Grandparents has shown strain over the summer as [L.W.] distanced herself
from them, perhaps in an attempt to please her Father.
(App. 20-21).
Father claims that the trial court’s finding that he did not follow Ellsworth’s
visitation schedule was erroneous and that the trial court erred in concluding that he
would deny visitation in the future absent a court order. He also argues that the trial court
should have granted weight to the fact that he limited, rather than denied, Grandparents’
visitation. We will address each of these arguments in turn.
First, Father asserts that the trial court’s finding that he did not follow his expert’s
recommendations was erroneous. He specifies that the recommendations were only
5
Notably, Father also wrote on his submitted calendar exhibit that Grandmother had agreed to the
proposed schedule in June.
21
supposed to last through the summer and that the Tuesday afterschool visits were only
intended to last through the end of the school year. He claims that throughout the
summer he ensured that Grandparents had consistent and regular contact with L.W.
because he arranged a day-long visit on a Sunday in June, gave them five full days of
visitation in July, arranged to take L.W. on visits to Madisonville, and allowed
Grandparents to frequently telephone L.W.
However, Father’s arguments do not demonstrate any error in the trial court’s
findings. The trial court did not find that Father denied Grandparents visits on Tuesdays
during the summer after school ended, as Father implies, and the trial court did not
indicate that it considered visitation during a time period other than that covered by the
initial recommendations. Also, the trial court acknowledged that Grandparents had
consistent contact with L.W. The court merely found that Father did not follow
Ellsworth’s proposed schedule, which Father cannot contradict, as he does not allege that
he actually allowed Grandparents visitation on Tuesdays before school ended or on one
Saturday per month. He contends that he arranged a full day visit with Grandparents on a
Sunday rather than a Saturday in June, but he does not account for his denial of weekend
visitation during the remaining months—May, July, or August. Likewise, his argument
that he arranged to take L.W. to Madisonville did not fulfill this visitation
recommendation. Based on the calendar he provided, he stopped in Madisonville for an
hour lunch with Grandparents on two different occasions when he and L.W. were on their
way to various events and took L.W. to meet Grandmother for a two-hour lunch on
Mother’s Day. These four hours spent eating lunches are not equivalent to three full,
22
unsupervised days of visitation. Accordingly, we conclude that sufficient evidence
supports the trial court’s finding that Father did not comply with Ellsworth’s
recommendations.
Next, Father argues that the trial court’s conclusion that he would deny
Grandparents visitation absent a court order was not supported by the evidence and
findings. In support of this contention, he raises challenges to the evidence that we have
already addressed, such as his argument that Grandparents misled Riedford into believing
that he planned to terminate Grandparents’ relationship with L.W. He also claims that
the evidence that he “listed off names of members of his family and [] said ‘[L.W.] has
all of these people in her life[,] and what is minus two[?’]” was taken out of context. (Tr.
229). However, as we stated previously, Riedford specifically testified that Father told
her he intended to terminate Grandparents’ relationship with L.W. It is not our place to
reweigh evidence or witness credibility on appeal. Megyese, 808 N.E.2d at 1213.
Accordingly, we conclude that the trial court’s finding that Father would deny
Grandparents visitation absent a court order was not erroneous.
Finally, Father argues that the trial court should have granted weight to the fact
that in the past he limited, rather than denied visitation. In grandparent visitation cases,
the trial court must give “some weight” to the fact that a parent has allowed some
visitation. Id. (quoting Crafton, 752 N.E.2d at 96). In Visitation of M.L.B., 983 N.E.2d
583, 587 (Ind. 2013), our Supreme Court explained that whether visitation has been
denied or limited “defines what interest of the child’s is at stake.” Specifically:
23
If visitation has been denied unreasonably, then the stakes are whether the
child will have any relationship with the grandparents, which may
strengthen the case for judicial intervention. But when a parent has already
offered visitation voluntarily, albeit within reasonable limits, it is not the
existence of a relationship at stake, but only on whose terms it will be. In
that event, a grandparent-visitation order particularly implicates the danger
of infring[ing] on the fundamental right of the parents to make child rearing
decisions simply because [a court] believes a ‘better’ decision could be
made.
Id. (emphasis in original) (internal citations and quotation marks omitted).
Significantly, we note that the trial court never found that Father had previously
denied visitation completely. The trial court specifically acknowledged that Father had
allowed visitation, even if that visitation did not comply with Ellsworth’s
recommendations. Therefore, we cannot conclude that the trial court did not give some
weight to the fact that Father had allowed visitation.
Regardless, our Supreme Court stated in Visitation of M.L.B. that the purpose of
giving some weight to the fact that a parent has allowed some visitation is to recognize
that there may be less need for judicial intervention because the existence of a
relationship between the grandparents and the child is not at stake. Id. Here, the trial
court expressly concluded that the existence of a relationship between Grandparents and
L.W. was at stake because the evidence presented demonstrated that, without a court
order, Father would likely deny Grandparents visitation. Therefore, we cannot agree with
Father’s argument that the trial court did not afford appropriate weight to the fact that he
had allowed some visitation in the past.
C. Rebuttal of Presumption
24
Next, Father challenges the final factor a trial court must consider in granting
visitation—whether Grandparents have shown that visitation is in the child’s best
interests. He acknowledges that it is in L.W.’s best interests to have a relationship with
Grandparents but argues that they did not rebut the presumption that, as a fit parent, his
decisions regarding visitation are in L.W.’s best interests and that he, therefore, should be
able to determine when that visitation occurs. He does not raise any specific arguments
in support of this contention other than the arguments he has previously raised.
Nevertheless, he asserts that the trial court’s conclusion is not supported by the evidence
before the trial court and its findings.
Because it is undisputed that a relationship with Grandparents is in L.W.’s best
interests, we will not address that factor, but will instead address whether Grandparents
rebutted the presumption that Father’s decisions concerning grandparent visitation were
in L.W.’s best interests, to the extent that he should be able to determine when that
visitation occurs. In Spaulding, we considered a case analogous to the instant case.
Spaulding, 793 N.E.2d at 261. There, the grandparents had been an important part of the
child’s daily life prior to the child’s mother’s death. Id. After the mother’s death, the
father decided to terminate the grandparent’s relationship with the child, and the trial
court found that termination of the relationship was not in the child’s best interests. Id.
Accordingly, the trial court held that the grandparents had rebutted the presumption that
the father’s decisions regarding visitation were in the child’s best interests. Id.
Likewise, here, it is undisputed that a relationship with Grandparents is in L.W.’s
best interests, and the trial court concluded “as a matter of law that absent a Court order,
25
the Father [would] not consistently allow for such regular and meaningful contact.”
(App. 22). For this reason, the court determined that Grandparents had rebutted the
presumption. As we have already found that there is evidence to support the trial court’s
conclusion that Father would not consistently allow Grandparents contact with L.W.
without a court order, and it is undisputed that such contact is in L.W.’s best interests, we
conclude that the trial court did not err in determining that Grandparents had rebutted the
presumption that Father’s decisions regarding visitation were in L.W.’s best interests. As
in Spaulding, there was evidence to support the trial court’s conclusion that Father’s
intention to deny L.W. a relationship with her grandparents was not in her best interests.
2. Amount of Visitation
Finally, Father argues that the trial court abused its discretion in the amount of
grandparent visitation it ordered. Our Supreme Court has previously held that “‘although
the amount of visitation is left to the sound discretion of the trial court, the 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 [his or her] children.’” Visitation of M.L.B., 983
N.E.2d at 586 (quoting K.I., 903 N.E.2d at 462). Father contends that the amount of
visitation the trial court ordered exceeds “occasional, temporary visitation.” Id.
Indiana courts have not established a set standard for “occasional, temporary
visitation,” and, as stated above, a trial court has discretion in establishing an appropriate
amount of visitation. Id. However, our past decisions provide us with some guidance.
As a general rule, we have previously held that it is prima facie error to grant a
26
grandparent visitation rights nearly equivalent to those of a non-custodial parent. Hoeing
v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008). In Swartz, we held that the
trial court had abused its discretion when it ordered visitation on alternating weekends
where the child would be alternating between four different households and would live
outside of Mother’s home seventy-three days per year. 720 N.E.2d at 1222. We noted
that the schedule was akin to one devised for a non-custodial parent and that the
grandparents had “essentially been given the visitation rights of [a] parent in lieu of [the
child’s father], with no corresponding duties.” Id. at 1222, 1223. In Hoeing, we likewise
found that visitation of ninety-six days per year was excessive. Hoeing, N.E.2d at 1222.
Grandparents direct us to Wilson v. Cloum, 797 N.E.2d 288 (Ind. Ct. App. 2003),
reh’g denied, trans. denied, where we upheld a trial court’s grant of grandparent
visitation, which was phased down to one weekend per month, holidays, and summer
vacations, after a transition period. However, on appeal, the parents did not challenge the
amount of visitation the trial court granted, so we did not address the issue. See id.
Alternately, Grandparents cite In re Marriage of Weddel, 553 N.E.2d 213, 214 (Ind. Ct.
App. 1990), reh’g denied, where we held that it was not an abuse of discretion for a trial
court to award grandparent visitation one weekend a month, one Saturday on an
alternative weekend, six weeks during the summer, every other holiday, special
occasions, one week at Easter, and one additional day per month. We do not find this
case persuasive, either, though, because it preceded our determinations that the
Grandparent Visitation Act only contemplates “occasional, temporary visitation” and that
an award akin to parenting time is an abuse of discretion. See Sightes, 684 N.E.2d at 230
27
(stating that the Grandparent Visitation Act only contemplates “occasional, temporary
visitation”); Swartz, 720 N.E.2d at 1222, 1223 (finding an abuse of discretion where
grandparent visitation was akin to that awarded to a non-custodial parent).
In this case, the trial court ordered that Grandparents receive structured and
unsupervised visitation: (1) one overnight on one weekend during even-numbered
months; (2) two overnights on one weekend during odd-numbered months; (3) every
Tuesday during the school year until 7:00 p.m. and during the summer from 10:00 a.m. to
7:00 p.m.; (4) eight hours on Mother’s birthday; (5) four hours on Grandparents’
birthdays; (6) one overnight the week of L.W.’s birthday; and (6) five consecutive days
during the summer. This amount totals approximately seventy-nine days per year, which
is higher than the amount we found was an abuse of discretion in Swartz. See Swartz,
720 N.E.2d at 1222. It is also very similar to the parenting time schedule a non-custodial
parent would have. See Indiana Parenting Time Guidelines, § II (D) (recommending
parenting time of alternating weekends, one evening per week, on scheduled holidays,
and for half of summer break for children ages five and older).6 Accordingly, we
conclude that the trial court abused its discretion in its determination of the amount of
visitation Grandparents would receive. We remand for the trial court to establish a
visitation schedule that allows Grandparents “occasional, temporary visitation that does
not substantially infringe on” Father’s right to control L.W.’s “upbringing, education, and
6
Grandparents argue that a non-custodial parent must receive ninety-eight overnights under the Parenting
Time Guidelines, but as we stated above, we previously held in Swartz that an award of seventy-three
overnights is close enough to an award for a non-custodial parent to constitute an abuse of discretion.
Swartz, 720 N.E.2d at 1222.
28
religious training.” Visitation of M.L.B., 983 N.E.2d at 586 (quoting K.I., 903 N.E.2d at
462).
Affirmed in part, reversed in part, and remanded.
NAJAM, J., and BAILEY, J., concur.
29