D.G. v. W.M.

FILED
Jan 11 2019, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Karen A. Wyle Patrick L. Jessup
Bloomington, Indiana Anthony L. Kraus
YODER KRAUS & JESSUP, P.C.
Kendallville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.G., January 11, 2019
Appellant, Court of Appeals Case No.
18A-MI-2115
v. Appeal from the DeKalb Circuit
Court
W.M., et al., The Honorable Randy Coffey,
Appellees. Special Judge
Trial Court Cause No.
17C01-1507-MI-93
Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019 Page 1 of 12
Case Summary
[1] D.G. (“Mother”) appeals the denial of her motion to terminate an order that
her four children (“the Children”) engage in monthly visitation with their
paternal grandparents (“Grandparents”) and the trial court’s finding that she is
in contempt of court. We affirm.
Issues
[2] Mother presents two consolidated and restated issues for review:
I. Whether the trial court abused its discretion by denying
her motion to terminate grandparent visitation;1 and
II. Whether the trial court abused its discretion in the
issuance of a contempt order.
1
Although Mother frames her issues with reference to an abuse of discretion standard of review, she asserts
(citing Krampen v. Krampen, 997 N.E.2d 73, 79 n.3 (Ind. Ct. App. 2013), trans. denied), that de novo review is
appropriate because the trial court conducted a summary hearing. In Krampen, no testimony was heard;
counsel submitted sworn depositions and exhibits and presented argument. See id. at 76. Thus, the appellate
court was arguably in a position of assessment like that of the trial court. Here, however, the Guardian ad
Litem testified. Also, Mother and Grandparents repeatedly affirmed to the trial court that the compilation of
relevant facts as presented by their respective counsel were the factual assertions of the parties. The hearing,
although summary, produced more than a paper record.
Although summary proceedings are not precluded, we disapprove of counsel summations as opposed to
testimony where a trial court must determine the best interests of a child. Unlike child support matters of
dollars and cents, where the issues allow for summation adopted and approved by parents, resolution of a
visitation issue involves a need for considering the weight of the testimony and the credibility of the
witnesses.
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Facts and Procedural History
[3] On March 1, 2016, Grandparents were awarded unspecified visitation time
with the Children, who had previously lived with Grandparents for several
years. One month after the visitation order was entered, Mother filed a motion
to reconsider, which the trial court treated as a motion to correct error. The
motion to correct error was granted in part, and the trial court entered a revised
order specifying that visitation was to take place one day per month, on the first
Friday. With a few exceptions, the scheduled visits did not occur. 2
[4] Grandparents filed motions for a rule to show cause why Mother should not be
held in contempt on June 14, 2016, July 21, 2017, August 14, 2017, November
13, 2017, November 27, 2017, December 5, 2017, January 11, 2018, January
24, 2018, February 22, 2018, March 16, 2018, March 29, 2018, June 11, 2018,
July 12, 2018, and August 9, 2018.3 The trial court entered some coercive
orders, including an order that Mother be jailed for twelve days, and an award
of $1,000.00 to Grandparents for the payment of attorney’s fees. 4 There was no
2
Mother asserts that she “followed the court order from December 2016 through June 2017.” Appellant’s
Brief at 15.
3
The Chronological Case Summary indicates that an additional motion for a rule to show cause was filed by
Grandparents on September 10, 2018, after the appealed orders were entered.
4
Over the years, successive judges were assigned to this matter. A successor judge declared one order of
contempt void for a lack of due process but, upon a motion for reconsideration, declared the order voidable
as opposed to void. In any event, no order of contempt had been enforced against Mother prior to the entry
of orders giving rise to this appeal.
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resumption of visits, Mother was not incarcerated, and Mother did not pay
Grandparents’ attorney’s fees.
[5] On March 20, 2018, Mother filed a petition seeking to terminate the
grandparent visitation. On April 26, 2018, the trial court appointed a Guardian
ad Litem (“GAL”) for the Children. On June 11, 2018, the trial court issued an
order that Mother appear at a hearing on June 27, 2018 to show cause, if any,
why she should not be held in contempt of court. On June 15, 2018, the trial
court issued an order consolidating the contempt and modification matters for a
joint hearing to be conducted on June 27, 2018.
[6] Mother, Grandparents, and the GAL appeared for the hearing. Although
Mother and Grandparents were placed under oath, they agreed that they would
not present individual testimony. Rather, their respective counsel would
summarize each party’s asserted facts and the parties would be afforded the
opportunity to affirm or protest any stated fact. The GAL, who had submitted
a written report, testified. She opined that grandparent visitation should
continue, but only until the Children’s father was awarded unsupervised
parenting time consistent with the Indiana Parenting Time Guidelines
(“Guidelines”).
[7] On July 9, 2018, the trial court entered a brief order “declin[ing] termination of
grandparent visitations.” Appealed Order at 1. On August 20, 2018, the trial
court issued an order finding Mother in contempt of court and ordering that she
serve 180 days in the DeKalb County Jail. The commitment order was to be
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stayed if Grandparents’ counsel notified the trial court that Mother had
delivered and retrieved the Children as directed under previous orders. Mother
was ordered to pay $14,000.00 of Grandparents’ attorney’s fees. Mother now
appeals.
Discussion and Decision
Petition for Modification
[8] The Grandparent Visitation Act provides in relevant part: “The court may
modify an order granting or denying visitation rights whenever modification
would serve the best interests of the child.” Ind. Code § 31-17-5-7. A court will
be found to have abused its discretion only when “its decision is against the
logic and effect of the facts and circumstances before the court or is contrary to
law.” In re Paternity of M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).
[9] At the summary hearing, the trial court was informed of the following facts and
circumstances. Grandparents had attempted on several occasions to exercise
visitation without success. Sometimes, the Children were not home. At other
times, some of the Children were present and would approach Grandparents’
vehicle to verbally decline visitation. Mother asserted that she had packed the
Children’s bags. She further claimed that she had intermittently punished the
Children for their non-compliance, although it was against the advice of a
mental health counselor with whom she had consulted. The GAL
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characterized Mother as uncooperative5 and opined that grandparent visitation
was in the Children’s best interests so long as their father did not have
Guidelines parenting time.
[10] Mother argues that, considering hers and the Children’s objections to
visitation,6 the trial court should have required Grandparents to bear the burden
of proving that visitation remained in the Children’s best interests. In re
Adoption of A.A., 51 N.E.3d 380 (Ind. Ct. App. 2016), involved the identical
claim, that a grandparent must demonstrate continuing best interests upon a
parent’s petition for modification. We concluded otherwise:
[Parents] seek to shift the burden to Grandparents to show that
grandparent visitation is still in Children’s best interests.
We have found no Indiana case that specifically speaks to the
burden of proof on a petition to modify an existing order of
grandparent visitation rights. However, our courts have
addressed the burden of proof necessary to modify an existing
order of parenting time rights following an initial custody
determination. Using nearly identical language to the
5
One focus was upon Mother’s text message communication with Grandparents. Grandparents claimed –
and Mother did not deny – that, on multiple occasions, Mother disseminated vulgar, profane, threatening, or
sacrilegious responses to Grandparents’ text message overtures for visitation. For example, Mother called
Grandparents “pathetic losers” and used phrases such as “Douchebag, they treat my kids like s----” and “you
think this is a m---- f------g game?” (Tr. at 9, 11.) She also forwarded photographs with threats of
Grandparents’ damnation to hell.
Also, Mother did not deny the assertion that her current husband attempted to adopt the Children in another
state, claiming that their father had consented; after the father appeared to contest that representation, the
adoption matter was dismissed.
6
Mother’s argument assumes that the trial court found credible her assertion that none of the Children
wished to participate in the court-ordered visitation.
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grandparent visitation statute, Indiana Code section 31-17-4-2
provides, in relevant part: “The court may modify an order
granting or denying parenting time rights whenever modification
would serve the best interests of the child.” . . .
The similarity in statutory language suggests that we place the
burden on modification of grandparent visitation rights with the
same party as on modification of parenting time rights. Even
though the petitioning grandparent carries a high burden on the
initial petition for grandparent visitation rights, the petitioner
seeking a subsequent change in a grandparent visitation order
bears the burden of showing the order should be modified. As
the moving party, Parents thus bore the burden of demonstrating
that modification of the existing visitation order would serve
Children’s best interests.
Id. at 389-90. Mother contends that In re A.A. was decided in error,
Grandparents properly had to show that, given current circumstances, visitation
was in the Children’s best interests, and they failed to do so.
[11] Mother correctly observes that, in cases involving nonparent custody or
guardianship, courts apply a strong presumption that a child’s interests are best
served by placement with a parent. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458
(Ind. 2009). Here, we are not confronted with a child custody dispute or an
initial petition for grandparent visitation in which the factors enunciated in
McCune v. Frey, 783 N.E.2d 752 (Ind. Ct. App. 2003), would apply.7 Mother
7
The factors “commonly known as the McCune factors” are: (1) the presumption that a fit parent’s decision
about grandparent visitation is in the child’s best interests; (2) the special weight that must be given to a fit
parent’s decision regarding non-parental visitation; (3) some weight given to whether a parent has denied or
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has put forth no persuasive argument that In re A.A. was wrongly decided.
Moreover, even if Mother could prevail on her placement-of-burden argument,
she ignores the GAL testimony and report when she claims there is a lack of
evidence of the Children’s best interests.
[12] Finally, we observe that Mother’s proffered changed circumstances were
traceable to her own conduct. At the modification hearing, she explained that
she had changed her initial belief that visitation was in the Children’s best
interests and, over time, her relationship with Grandparents had become toxic.
She described as “stale” the evidence that Grandparents and the Children had
shared pleasant activities in the past, because Grandparents “haven’t seen the
grandchildren in a year.” (Tr. at 22.) She thus invited the trial court to reward
her persistent non-compliance.8 Here, as in In re A.A., there is a failure to
acknowledge and differentiate that which is a “direct result of [parental]
contumacious conduct.” 51 N.E.3d at 390. Mother has not shown that the
trial court abused its discretion in denying the petition to terminate
Grandparents’ visitation rights.
simply limited visitation; and (4) whether the grandparent has established that visitation is in the child’s best
interests. In re A.A., 51 N.E.3d at 389.
8
Mother’s attorney took the position, affirmed by Mother, that “parents are permitted to alienate third
parties, and that’s what grandparents are.” (Tr. at 22.)
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Contempt of Court
[13] The trial court found that Mother “repeated[ly] and without cause violated the
Court’s order for grandparent visitation. She does so willfully, in order to
impede and ignore this Court’s requirements.” Appealed Order at 2. The court
observed that Mother had previously been held in contempt of court and
ordered that she be incarcerated for 180 days and pay, within 90 days, the sum
of $14,000.00 to Grandparents’ attorney “for contributions towards fees
expended in pursuing this Court’s contempt finding.” Id. at 3.
[14] Whether a party is in contempt of court is a matter within the trial court’s
discretion. In re M.F., 956 N.E.2d at 1162. A court’s finding of contempt will
be reversed only for an abuse of that discretion. Id. After a party has been
found in contempt of court, monetary damages may be awarded to the injured
party, and this determination of damages is also within the trial court’s
discretion. In re A.A., 51 N.E.3d at 387. On review of a contempt order, we
consider the evidence and reasonable inferences that support the trial court’s
judgment, and we neither reweigh the evidence nor judge the credibility of
witnesses. Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind. Ct. App. 2005).
[15] A party may be punished for contempt of a trial court’s order when (1) there is
an order commanding the accused to do or refrain from doing something, and
(2) the party acted with willful disobedience. Id. Even an erroneous order must
still be obeyed. Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App. 1997).
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“A party’s remedy for an erroneous order is appeal and disobedience of the
order is contempt.” Id.
[16] Mother summarily argues that she made “reasonable efforts” to ensure the
Children’s compliance but the Children were uncooperative. Appellant’s Brief
at 33. Mother bears the burden of showing that her violation was not willful.
Norris, 833 N.E.2d at 1029. Grandparents were systematically deprived of the
visitation awarded to them. There was evidence that Mother made – at best –
some token efforts toward compliance. At times, she permitted some of the
Children to leave their house (unaccompanied by Mother) and approach
Grandparents’ vehicle. They then declined visitation. Mother essentially took
the position that her minor children were in control. She claimed to have made
some efforts to punish the Children, at least intermittently, but the trial court
was not required to credit this evidence. See Fultz v. State, 849 N.E.2d 616, 623
(Ind. Ct. App. 2006) (recognizing that a fact-finder may disregard self-serving
testimony lacking credibility), trans. denied. We find no abuse of discretion in
the trial court’s finding of contempt.
[17] Mother also argues that the contempt order was entered primarily to punish
her, and she has no “realistic opportunity” to purge herself of the contempt
finding. Appellant’s Brief at 37. “[I]t is within the inherent power of the trial
court to fashion an appropriate punishment for the disobedience of the court’s
order.” Bechtel v. Bechtel, 536 N.E.2d 1053, 1056 (Ind. Ct. App. 1989). In civil
contempt proceedings, sanctions may be imposed both to coerce behavior and
to compensate an aggrieved party. Norris, 833 N.E.2d at 1031. The fine is to be
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paid to the aggrieved party, and imprisonment is for the purpose of coercing
compliance. Id.
[18] Here, Mother’s noncompliance forced Grandparents into protracted litigation
and they filed fourteen motions for a rule to show cause, as Mother remained
defiant. Mother has made no assertion that $14,000.00 is an unreasonable
amount of attorney’s fees to have been incurred in these circumstances. Mother
does, however, argue that the trial court’s order afforded her only an illusory
right to purge herself of contempt. The “Finding of Contempt and
Commitment Order” entered on August 20, 2018 includes a commitment order
for Mother’s incarceration for 180 days, but it also provides that Mother “may
purge herself of contempt” and “may do so by following all directives and
orders of this Court as heretofore made.” Appealed Order at 2. The order
includes the following language as to staying the commitment:
Should [Mother] deliver and retrieve the children as directed
under the previous order(s), counsel for [Grandparents] shall
notify the Court of the same. Upon such notification, the Court
shall stay the heretofore-entered commitment order.
Appealed Order at 2. Mother apparently believes that the stay of incarceration
is conditioned upon the Grandparents’ good will toward her and that they may
fail to report her future compliance. We observe that the notification
requirement was placed upon counsel, an officer of the court. We do not agree
with Mother that this deprives her of a reasonable opportunity to purge herself
of contempt.
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Conclusion
[19] The trial court’s order denying Mother’s petition to terminate grandparent
visitation was not an abuse of discretion. The trial court did not abuse its
discretion in finding Mother in contempt of court, ordering her incarceration,
and ordering her payment of $14,000.00 of Grandparents’ attorney’s fees as a
sanction.
[20] Affirmed.
Bradford, J., and Brown, J., concur.
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