In Re the Visitation of L.W., D.W. v. G.W. and C.W. ( 2014 )

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:
Feb 25 2014, 10:19 am
JOHNNY W. ULMER
Cataldo Law Offices, Inc.
Bristol, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE VISITATION OF L.W., )
)
D.W., )
)
Appellant-Respondent )
)
vs. ) No. 71A03-1308-JM-300
)
G.W. and C.W., )
)
Appellees-Petitioners. )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Barbara J. Johnston, Magistrate
Cause Nos. 71J01-1204-JM-6 & 71J01-1201-PO-9
February 25, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
D.W. (“Father”) appeals the entry of a grandparent-visitation order by the St.
Joseph Probate Court, arguing that only the Marion Superior Court had jurisdiction to
rule on the issue of grandparent visitation. Because the St. Joseph County case was
consolidated with the ongoing paternity case in the Marion Superior Court, and that court
has since ruled on the issue of grandparent visitation, we therefore dismiss Father’s
appeal as moot.
Facts and Procedural History
Father’s paternity of his son, L.W., was established by order of the Marion
Superior Court in 2008. Custody, parenting-time, and child-support issues related to
L.W. were litigated in the Marion Superior Court in the years that followed.
In 2011, L.W.’s paternal grandparents, G.W. and C.W., filed a petition for
visitation in the St. Joseph Probate Court. See Appellant’s App. p. 5 (CCS). In June
2013, the St. Joseph Probate Court entered an order authorizing grandparent visitation.
See id. at 2 (CCS), 24-25.
But one month later, on the grandparents’ motion, the Marion Superior Court
consolidated the Marion County and St. Joseph County cases. See id. at 10-11. As a
result, no further action was taken in St. Joseph County with respect to L.W. Instead, the
Marion Superior Court considered the issue of grandparent visitation, and the
Chronological Case Summary for Cause No. 49D05-0808-JP-034993 shows that the
court ultimately entered a series of orders permitting visitation. None of those orders are
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at issue in this appeal; Father only appeals the St. Joseph County grandparent-visitation
order.
Discussion and Decision
Father appeals the order from the St. Joseph Probate Court authorizing
grandparent visitation. He argues that the Marion Superior Court has exclusive
jurisdiction to rule on the issue of grandparent visitation.1 But after the St. Joseph
County case was consolidated with the ongoing paternity case in the Marion Superior
Court, the Marion Superior Court did rule on the issue, permitting L.W.’s paternal
grandparents visitation. Therefore, Father’s appeal from the St. Joseph County order
is moot. As this Court explained in In re the Adoption of A.N.S., 741 N.E.2d 780, 787
(Ind. Ct. App. 2001):
An appeal is moot and this court lacks jurisdiction when: (1) it is no longer
live or when the parties lack a legally cognizable interest in the outcome,
(2) the principal questions in issue are no longer matters of real controversy
between the parties, or (3) the appeals court is unable to provide effective
relief upon the issue.
Here, after consolidating the two cases, the Marion Superior Court ruled on the issue of
grandparent visitation—which is what Father advocates for on appeal. And Father is not
appealing that court’s ruling; thus, this Court cannot provide effective relief upon the
issue.
1
We agree with Father on this point. “Once jurisdiction over the parties and the subject matter
has been secured, it is retained to the exclusion of other courts of equal competence until the case is
resolved, and the rule applies where the subject matter before the separate courts is the same, but the
actions are in different forms.” In re Marriage of Huss, 888 N.E.2d 1238, 1241 (Ind. 2010) (emphasis
added) (citing In re Paternity of Fox, 514 N.E.2d 638 (Ind. Ct. App. 1987), trans. denied).
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This appeal is dismissed.
MAY, J., concurs.
RILEY, J., concurs in result without opinion.
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