Mark Stoner v. Julia M. Stoner ( 2023 )

FILED
Nov 13 2023, 9:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew E. Dumas ELIZABETH STONER
Hostetter & Associates Rebecca J. Berfanger
Brownsburg, Indiana RJ Berfanger Law LLC
Indianapolis, Indiana
Katherine E. Flood
Flood Family Law, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Stoner, November 13, 2023
Appellant, Court of Appeals Case No.
23A-DC-1185
v. Appeal from the Marion Superior
Court
Julia M. Stoner and Elizabeth G. The Honorable Alicia A. Gooden,
Stoner, Judge
Appellees. Trial Court Cause No.
49D14-2103-DC-1898
Opinion by Judge Brown
Judges Vaidik and Bradford concur.
Brown, Judge.
Court of Appeals of Indiana | Opinion 23A-DC-1185 | November 13, 2023 Page 1 of 9
[1] Mark Stoner (“Grandfather”) appeals the trial court’s order dismissing his
petition for grandparent visitation. We reverse and remand.
Facts and Procedural History
[2] In September 2021, the trial court entered a decree dissolving the marriage of
Julia Stoner and Zachary Stoner (together, “Parents”) and incorporating their
marital settlement agreement.1 The settlement agreement provided there was
one child born of the marriage, S.S. Section 2.01 of the agreement provided
Parents “shall share joint legal custody of the child.” Appellant’s Appendix
Volume II at 25. Section 2.01 also provided:
To ensure more responsible parenting and to promote the healthy
adjustment and growth of their child, [Parents] agree that they each
should recognize and address the child’s basic needs:
*****
h. To 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 relationships with the parents.
Id. at 25-26. Section 2.02 provided Parents “shall share joint and equal physical
custody of the child.” Id. at 26.
1
The decree stated the parties were “Petitioner, Julia M. Stoner (‘Julia’)” and “Respondent, whose legal
name is currently Zachary Stoner (‘Elizabeth’).” Appellant’s Appendix Volume II at 20.
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[3] On September 15, 2022, Grandfather filed a motion to intervene and a petition
“to establish grandparent’s visitation pursuant to IC 31-17-5” (the
“Grandparent Visitation Act” or “GVA”). Id. at 43. Grandfather stated he “is
the father of Zachary Stoner n/k/a Elizabeth Stoner, as such he is the paternal
grandfather of the child,” requested an order providing him with reasonable
visitation with S.S., and claimed “[t]his is in the best interests of the child” and
he “has had significant care of and contact with his grandson since birth.” Id.
The court granted the motion to intervene. On September 29, 2022, the court
issued an Order Amending Caption which ordered “[t]hat Caption herein is
hereby amended to reflect Respondent’s legal name, Elizabeth G. Stoner” and
“shall be changed on Odyssey.” Id. at 49.
[4] On May 4, 2023, the court held a hearing. Counsel for Julia argued
Grandfather did not have standing to seek grandparent visitation. Counsel
referred to Matter of E.H., 121 N.E.3d 594 (Ind. Ct. App. 2019), and argued
“our position is that because both parents in this case continue to share joint
legal custody, they are both custodial parents, both have the right to determine
the upbringing of their child and that it would not be proper for grandfather
who is the parent of a custodial parent to be awarded any grandparent visitation
due to a lack of standing.” Transcript Volume II at 7. Counsel for Elizabeth
“agree[d] with that analysis.” Id. Counsel for Grandfather argued Parents were
“reading language into the statute that isn’t there” and E.H. did not apply. Id.
at 9. He argued “the old version of the [GVA] did provide that a grandparent
whose own child is the custodial parent can’t seek the visitation” and “[t]hat’s
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not what the act says anymore.” Id. at 11. The trial court entered a written
order providing:
1. Petitioner [Julia] and Respondent [Elizabeth] are joint
custodians who share joint legal and physical custody of the
minor child.
2. Respondent [Elizabeth] is the child of the Paternal
Grandfather, who is requesting visitation.
3. Both parents object to Grandfather’s petition and request for
visitation.
4. The Court finds that In re Matter of E.H., 121 NE3rd 594
(Ind. Ct. App. 2019) is directly on point in this matter.
5. The Court finds that the [GVA] was not intended to apply
where the grandparent seeks visitation over the objection of a
custodial parent who is their own child.
6. The Court finds that Grandfather lacks standing to pursue a
request for GP visitation under the [GVA], and the Court
dismisses the petition.
Appellant’s Appendix Volume II at 17.
Discussion
[5] Grandfather maintains that he “has the ‘right to seek visitation’ of his grandson
pursuant to the GVA, specifically I.C. § 31-17-5-1.” Appellant’s Brief at 7. He
argues that E.H. does not support the dismissal of his petition, E.H. relies on
caselaw interpreting a prior version of the GVA, and “[n]o longer does the
GVA make any kind of distinction between custodial parent and noncustodial
parent.” Id. at 9-10. He also argues E.H. involved adopted children and notes
the language of Parents’ marital settlement agreement.
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[6] We note that Parents have not filed appellees’ briefs. When an appellee fails to
submit a brief, we do not undertake the burden of developing arguments, and
we apply a less stringent standard of review, that is, we may reverse if the
appellant establishes prima facie error. Bixler v. Delano, 185 N.E.3d 875, 877
(Ind. Ct. App. 2022). Prima facie is defined as “at first sight, on first
appearance, or on the face of it.” Id. at 877-878 (citing Graziani v. D & R Const.,
39 N.E.3d 688, 690 (Ind. Ct. App. 2015)). This rule was established so that we
might be relieved of the burden of controverting the arguments advanced in
favor of reversal where that burden properly rests with the appellee. Id. at 878.
[7] When interpreting a statute, we begin by reading its words in their plain and
ordinary meaning, taking into account the structure of the statute as a whole.
Town of Linden v. Birge, 204 N.E.3d 229, 237 (Ind. 2023). Mindful of what the
statute says and does not say, we aim to avoid interpretations that depend on
selective reading of individual words that lead to irrational and disharmonizing
results. Id. We presume the legislature intended for the statutory language to
be applied in a logical manner consistent with the statute’s underlying policy
and goals. Id. Ultimately, our goal is to determine and give effect to the
legislature’s intent. Id.[8] Ind. Code § 31-17-5-1 provides:
(a) A child’s grandparent may seek visitation rights if:
(1) the child’s parent is deceased;
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(2) the marriage of the child’s parents has been dissolved in
Indiana; or
(3) subject to subsection (b), the child was born out of
wedlock.
(b) A court may not grant visitation rights to a paternal
grandparent of a child who is born out of wedlock under
subsection (a)(3) if the child’s father has not established
paternity in relation to the child.
[9] Ind. Code § 31-9-2-13 provides that “‘Child’, for purposes of . . . IC 31-17,
means a child or children of both parties to the marriage” and “[t]he term
includes . . . (1) Children born out of wedlock to the parties. (2) Children born
or adopted during the marriage of the parties.” Ind. Code § 31-9-2-77 provides:
“‘Maternal or paternal grandparent’, for purposes of IC 31-17-5, includes: (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.”
[10] Here, S.S. is a child under Ind. Code § 31-9-2-13, and Grandfather is the parent
of S.S.’s parent, Elizabeth, under Ind. Code § 31-9-2-77. Moreover, the
marriage of Parents has been dissolved in Indiana. Accordingly, Grandfather
“may seek visitation rights” as referenced in Ind. Code § 31-17-5-1(a)(2).
[11] Further, we find that E.H. does not require dismissal of Grandfather’s petition.
In that case, the parental rights of the children’s biological parents were
terminated, and Paul Bobby Hernandez, the children’s biological maternal
uncle, and his significant other adopted the children. 121 N.E.3d at 595.
Hernandez and his significant other were not married. Id. The children’s
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biological maternal grandparents filed petitions for grandparent visitation. Id.The trial court found that, because Hernandez and his significant other were
not married when they adopted the children, the children were “technically . . .
‘born’ out of wedlock” and thus the biological maternal grandparents were able
to seek grandparent visitation. Id. at 596. On appeal, this Court found there
was a difference between being born out of wedlock and being adopted by an
unmarried person, a decree of adoption severs the parent and child relationship,
an adoption is not a birth, and the biological maternal grandparents could not
seek grandparent visitation. Id. at 597. Here, as previously stated, Grandfather
may seek visitation as referenced in Ind. Code § 31-17-5-1(a)(2) where the
marriage of the child’s parents has been dissolved in Indiana, and he need not
rely on subsection (3) of the statute related to visitation where a child is born
out of wedlock.
[12] To the extent E.H. cites Lockhart v. Lockhart, 603 N.E.2d 864 (Ind. Ct. App.
1992), and states “the GVA was intended to apply only when the parent who is
not their child is the custodial parent,” E.H., 121 N.E.3d at 598, the court in
Lockhart discussed a statute which provided “[a] court may not grant visitation
under this chapter after May 9, 1989 to a grandparent who is the parent of a
person: (1) who is not deceased; and (2) who has been awarded custody of the
grandchild.” Lockhart, 603 N.E.2d at 865 (citing Ind. Code § 31-1-11.7-2 2).
2
Subsequently amended by Pub. Law No. 229-1993, § 1, and repealed by Pub. Law No. 1-1997, § 157 (eff.
July 1, 1997).
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However, the legislature amended Ind. Code § 31-1-11.7-2 in 1993, eliminating
the language precluding a court from granting visitation to a grandparent who is
the parent of a person who has been awarded custody of the grandchild, see
Pub. Law No. 229-1993, § 1, and later repealed the statute in 1997 when it
enacted Ind. Code § 31-17-5-1, the current statute. See Pub. Law No. 1-1997, §
157 (eff. July 1, 1997) (revoking Ind. Code § 31-1-11.7-2), and § 9 (eff. July 1,
1997) (adding Ind. Code § 31-17-5-1). The current statute, Ind. Code § 31-17-5-
1, does not preclude a grandparent from seeking visitation with a child where
the custodian of the child is the grandparent’s child. 3
[13] We also observe the trial court incorporated Parents’ marital settlement
agreement into its dissolution decree and Section 2.01 of the agreement
provides that Parents “agree that they should recognize and address the child’s
basic needs . . . [t]o develop and maintain meaningful relationships with other
significant adults (grandparents . . . ) as long as these relationships do not
interfere with or replace the child’s primary relationships with the parents.”
Appellant’s Appendix Volume II at 25-26.
3
See Daugherty v. Ritter, 646 N.E.2d 66, 66-67 (Ind. Ct. App. 1995) (noting grandparents had standing to seek
visitation of their grandchild under the GVA where the grandchild lived with her mother, who was the
grandparents’ child), adopted by 652 N.E.2d 502 (Ind. 1995); Moses v. Cober, 641 N.E.2d 668, 671 (Ind. Ct.
App. 1994) (noting the legislature’s amendment to the GVA in 1993 eliminating the language precluding a
court from granting visitation to a grandparent who is the parent of a person who has been awarded custody
of the grandchild), abrogated on other grounds by Daugherty, 652 N.E.2d 502 (Ind. 1995).
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[14] We conclude that Grandfather has established prima facie error and that he
may seek visitation rights with S.S. under the GVA. We reverse and remand
for further proceedings on Grandfather’s petition.
[15] Reversed and remanded.
Vaidik, J., and Bradford, J., concur.
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