MEMORANDUM DECISION                                              FILED
                                                             Jul 06 2016, 8:47 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            CLERK
                                                             Indiana Supreme Court
regarded as precedent or cited before any                       Court of Appeals
                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Laurie Baiden Bumb                                       Keith W. Vonderahe
Bumb & Vowels, LLP                                       Molly E. Briles
Evansville, Indiana                                      Ziemer, Stayman, Weitzel &
                                                         Shoulders, LLP
Thomas A. Massey
                                                         Evansville, Indiana
Massey Law Offices
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Visitation of                                 July 6, 2016
L-A.D.W.,                                                Court of Appeals Case No.
                                                         82A01-1512-DR-2235
R.W.
                                                         Appeal from the Vanderburgh
Appellant-Respondent,                                    Superior Court
        v.                                               The Honorable Mary Margaret
                                                         Lloyd, Judge
M.D. and W.D.,                                           Trial Court Cause No.
                                                         82D04-1305-DR-465
Appellees-Petitioners




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 1 of 15
[1]   This case has been here before. The first time, the trial court ordered

      grandparent visitation between L-A.D.W. (Child) and M.D. and W.D.

      (collectively, Grandparents) over the objections of Child’s father. Ultimately,

      our Supreme Court affirmed the order. With a pending move to Colorado on

      the horizon, R.W. (Father) has now asked the trial court to set aside the order

      requiring grandparent visitation. The trial court declined, though it decreased

      the amount of visitation required, and also found Father in contempt for failing

      to abide by its prior orders.


[2]   Father now appeals the order refusing to terminate court-ordered grandparent

      visitation and the order finding him in contempt of court. He contends that

      there is insufficient evidence supporting continued grandparent visitation and

      that the contempt finding was unwarranted. Finding sufficient evidence and

      that the contempt order is not ripe for our review, we affirm.


                                                     Facts
                                              The First Appeal

[3]   The underlying facts of this case are as follows:


              From the time of her birth, L–A.D.W. had a close relationship
              with her maternal grandparents, M.D. and W.D. (Grandparents).
              Grandparents lived with L–A and her parents, L.A.D. (Mother)
              and R.W. (Father), beginning when L–A was born. Even after
              Grandparents returned to their own home, they remained a part
              of L–A’s daily life. In 2010, Mother was diagnosed with stage
              four cancer, and Grandparents moved back into Mother and
              Father’s home to help care for Mother and L–A. After Mother’s
              three-year battle with cancer and amidst the dissolution of her

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 2 of 15
        marriage, Mother passed away in April 2013. L–A was only eight
        years old.


        In accordance with Mother’s wishes as expressed in her will,
        Grandparents filed for visitation rights with L–A under the
        Grandparent Visitation Act. Grandparents’ and Father’s
        relationship had grown contentious over the course of Mother’s
        illness and her deteriorating marriage. Grandparents feared that
        Father would totally discontinue any contact between them and
        L–A. Grandparents believed that court-ordered visitation was the
        only way to maintain a regular and meaningful relationship with
        their only grandchild. Conversely, Father wished to control any
        visitation schedule Grandparents had with L–A.


        After a hearing, in which two mental health experts opined on
        what would be in the best interest of L–A, the trial court
        determined that it was in L–A’s best interest to have a
        meaningful and ongoing relationship with Grandparents. The
        trial court ordered a visitation schedule, which followed the
        visitation schedule that was initially recommended by one of the
        mental health experts. This schedule was crafted to allow L–A to
        transition into the primary care of her Father.


In re Visitation of L-A.D.W., 38 N.E.3d 993, 994 (Ind. 2015) (internal citation

omitted). Father appealed, and the case eventually made its way to our

Supreme Court, which affirmed the trial court’s order. Our Supreme Court

emphasized the wide discretion that trial courts have in fashioning grandparent

visitation orders:

        Given the uniqueness that pervades different family units, strict
        standards on the amount of permissible visitation under the
        Grandparent Visitation Act would be difficult to craft. As such,
        trial courts should be able to consider the various circumstances

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 3 of 15
              presented in each individual case to determine what is in the
              child’s best interest.


      Id. at 1001. Although Grandparents in this case were afforded significant

      amounts of visitation with Child, our Supreme Court found that the order was

      reasonable in this case because they had been so involved with Child’s life and

      upbringing. Id. at 1000. The Court observed that the visitation was not

      permanent and was subject to modification as Child gets older and “becomes

      more involved in other activities and develops a closer relationship with

      Father[.]” Id. at 1001.


                                        Post-Appeal Developments

[4]   In 2014, Grandparents filed two petitions in aid of judgment, seeking a court

      order for Father to comply with the visitation plan as set forth by the trial court.

      Among other things, Grandparents alleged the following issues:


           Father had failed to provide Grandparents with his on-call schedule or
            Child’s extracurricular activity schedules.
           Father had discussed the ongoing court proceedings with Child.
           Father made scheduling Grandparents’ weekends with Child extremely
            difficult, on one occasion scheduling a family vacation to occur on a
            grandparent visitation date and failing to inform Grandparents that Child
            was out of town until Grandparents were already halfway to Evansville
            from their home in Kentucky.
           Father spoke derogatorily about Grandparents to Child.
           Father sent acrimonious and sarcastic text messages to Grandparents.

      On June 18, 2015, Father filed a notice of intent to relocate with Child to

      Colorado. Grandparents filed a petition to modify grandparent visitation on


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 4 of 15
      June 29, 2015, seeking to ensure that they would still have visitation time with

      Child after the out-of-state move occurred. The trial court ordered Father to

      notify Grandparents by August 5, 2015, of the name of the Colorado school

      Child would attend. On August 10, 2015, Grandparents filed a petition seeking

      to have Father held in contempt as he had still not provided them with that

      information. He ultimately provided the information to Grandparents on the

      day the contempt petition was filed.


[5]   On August 13, 2015, the trial court held an evidentiary hearing on all pending

      motions. At that time, Child was ten years old. At the hearing, Laura

      Ellsworth, Father’s expert witness, testified that Child had grown increasingly

      frustrated and angry regarding her visitation with Grandparents. Ellsworth

      acknowledged that Father had continued to discuss the ongoing litigation with

      Child, and though she had not observed Father attempting to alienate Child

      from Grandparents, she could not say that it had not taken place. Ellsworth

      recommended that after the move to Colorado, Father should be permitted to

      determine what reasonable visitation between Child and Grandparents would

      be. Before making this recommendation, Ellsworth did not speak with

      Grandparents or any of Child’s teachers or nannies. On November 13, 2015,

      the trial court entered its order finding and holding, in relevant part, as follows:


              14.      Almost immediately after the [initial grandparent
                       visitation order] was entered, Father failed and/or refused
                       to fully comply with the Judgment.


                                                       ***

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 5 of 15
        18.      During the course of the initial trial, Ellsworth testified
                 that it was “important” for [Child] to continue to have a
                 meaningful relationship with Grandparents, but she
                 believed Father should be able to determine when the
                 grandparent visitation would occur in large part because of
                 Ellsworth’s belief that Father had abided by her initial
                 recommendations for transitional grandparent visitation
                 during the summer of 2013.


        19.      However, . . . . Father in fact did not abide by Ellsworth’s
                 initial recommendations. This fundamental
                 misunderstanding of Ellsworth as to the level of visitation
                 allowed by Father when there was no court order in place
                 significantly impacts the Court’s view of Ellsworth’s
                 credibility on this issue.


        20.      The Court is similarly not convinced that Ellsworth has
                 been given or has ascertained of her own volition all of the
                 relevant information that would seemingly necessarily bear
                 on a determination of [Child’s] best interests at the current
                 time.


                                                 ***


        35.      Moreover, although Ellsworth stated that [Child] was not
                 able to participate in peer activities while with the
                 Grandparents, the contradicted evidence established by
                 Grandparents was that [Grandparents] . . . ensured [Child]
                 attended archery practice and competitions, swim
                 practices and competitions, . . . swim team banquet, bible
                 school, and a birthday party for [Child’s] friend, all during
                 their scheduled grandparent visitation times. . . .


                                                 ***


Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 6 of 15
        42.      Father himself testified . . . that [Child’s] relationship with
                 his parents is “normal” while Father characterized
                 [Child’s] relationship with Grandparents as “incredibly
                 dysfunctional.” The Court finds it highly likely that
                 [Child] has based her current perception on what is a
                 “normal” grandparent relationship on Father’s expressed
                 sentiments to this effect and Father’s prior statements to
                 [Child] . . . that [Child’s] relationship with Grandparents is
                 somehow “weird.”


        43.      When asked during cross-examination at the Hearing,
                 Father was unable to remember [the] last positive thing he
                 had said to [Child] about Grandparents or when he would
                 have last made a positive statement to [Child] about
                 Grandparents.


                                                 ***


        45.      Ellsworth made several statements during her testimony to
                 the effect that Father has assured [Child] that he knows
                 she does not want to participate in grandparent visitation
                 and that he has reinforced with [Child] that he is “doing
                 everything he can” and is “fighting to get what she wants.”


        46.      These statements are further indication that Father has
                 continued to discuss these proceedings with [Child] and,
                 rather than encouraging [Child] to participate in the
                 grandparent visitation and renew a strengthened
                 relationship with Grandparents, the Father has continued
                 to imply (or state outright) to [Child] that he opposes the
                 grandparent visitation. The Court further finds that Father
                 appears to be pathologically alienating [Child] from
                 Grandparents by making promises to her that he is doing
                 everything in his power to stop the visitation, thus
                 manipulating [Child] into thinking negatively about

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 7 of 15
                 Grandparents and grandparent visitation and further
                 poisoning the relationship between Grandparents and
                 [Child].


                                                 ***


        50.      . . . Father has made no efforts to seek or enroll [Child] in
                 regular counseling to address the anger she is feeling and
                 help her process her feelings of grief [over the death of her
                 mother].


                                                 ***


        61.      . . . [T]his Court is convinced that at least part of Father’s
                 motivation in moving from Evansville was to force a de
                 facto reduction to the amount of grandparent visitation to
                 be exercised by Grandparents.


                                                 ***


        65.      Father again desires for this Court to issue an order
                 denying court-ordered grandparent visitation and allowing
                 him to make all decisions regarding the frequency of
                 contact between Grandparents and [Child].


                                                 ***


        68.      Grandparents still believe that Father will attempt to deny
                 them any contact with [Child] if there is no court-ordered
                 visitation.


        69.      In contrast to the dire picture painted by Father and
                 Ellsworth regarding Grandparents’ relationship with

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 8 of 15
                 [Child], Grandparents both testified they believe their
                 relationship with [Child] is even stronger than it was two
                 (2) years ago.


                                                 ***


        75.      The overall amount of grandparent visitation to be
                 exercised by Grandparents under Grandparents’ proposal
                 is significantly less than the amount of visitation
                 previously [ordered].


        76.      Grandparents are not seeking an order for Father to
                 contribute to any of their travel expenses incurred for
                 grandparent visitation as a result of his move.


        77.      . . . Grandparents are not seeking any reimbursement of
                 their attorney fees or any other sanctions to be imposed by
                 the Court at this time other than an admonishment to
                 Father that he must comply with the Court’s order.


Appellant’s App. p. 12-46 (internal citations omitted). The trial court found

that continued visitation with Grandparents is in Child’s best interests and set

forth a schedule to be followed by all parties. The trial court ordered that

Grandparents would have Child for twenty-one overnights annually, with a

specific schedule set forth for the next year. The trial court also found Father in

contempt for his failure to timely provide Grandparents with the name of the

Colorado school Child would be attending. Although Grandparents did not

seek a sanction, the trial court found “that this incident is simply one of many

in which Father willfully refused or failed to comply with the Court’s orders.”

Appellant’s App. p. 44. The trial court imposed a fine of $2,500 but stayed
Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 9 of 15
      payment of the fine and found that Father could purge himself of the contempt

      finding by complying with all orders in this matter. Father now appeals.


                                   Discussion and Decision
                            I. Grandparent Visitation Order
[6]   Father raises multiple arguments with respect to the grandparent visitation

      order. We reframe and restate them as follows: (1) there is insufficient

      evidence supporting the trial court’s conclusion that continued court-ordered

      visitation with Grandparents is in Child’s best interests; and (2) the amount of

      visitation ordered by the trial court exceeds the occasional, temporary visitation

      contemplated by the Grandparent Visitation Act. Ind. Code § 31-17-5-1 et seq.


[7]   Under the Grandparent Visitation Act, the amount of visitation is left to the

      trial court’s sound discretion. L-A.D.W., 38 N.E.3d at 997. We conduct our

      review with a “preference for granting latitude and deference to our trial judges

      in family law matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In

      conducting our review, we must first determine whether the evidence supports

      the findings, and second, whether the findings support the judgment. In re

      Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). We will neither reweigh

      the evidence nor assess witness credibility. Id.


[8]   While grandparents are afforded certain rights under the Grandparent

      Visitation Act, those rights do not equate to the constitutional liberty interests

      held by parents in the upbringing of their children. L-A.D.W., 38 N.E.3d at 998.

      Nevertheless, our General Assembly, in enacting the Grandparent Visitation
      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 10 of 15
       Act, recognized that “‘a child’s best interest is often served by developing and

       maintaining contact with his or her grandparents.’” In re K.I., 903 N.E.2d 453,

       462 (Ind. 2009) (quoting Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App.

       1999)).


                                      A. Sufficient Evidence
[9]    Grandparent visitation orders may be modified “whenever modification would

       serve the best interests of the child.” I.C. § 31-17-5-7. Generally, there are four

       factors that must be addressed by a trial court when ruling on a request for

       grandparent visitation. In re Adoption of A.A., 48A02-1505-AD-328, *6 (Ind. Ct.

       App. Feb. 19, 2016), trans. pending. But when, as here, the order being appealed

       is an order on a petition to modify a grandparent visitation order, the same

       findings need not be made. Id. at *6-*7. This Court has held that the party

       seeking to modify the grandparent visitation order bears the burden of

       demonstrating that modification would serve the children’s best interests. Id. at

       *7.


[10]   In this case, while Grandparents filed a petition to modify their visitation

       schedule given Father’s planned move to Colorado, Father also seeks to modify

       the order by ending the court-ordered grandparent visitation altogether. Given

       that he is appealing the trial court’s refusal to grant that request, we will

       consider Father to be the petitioner. He, therefore, bears the burden of

       demonstrating that a cessation of court-ordered grandparent visitation is in

       Child’s best interests.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 11 of 15
[11]   The first time this litigation wound its way through the courts of this State, it

       was definitively established that it is in Child’s best interests to have regular

       visitation with Grandparents. So the questions become, (1) what has changed

       since the first grandparent visitation order was entered, and (2) do those

       changes, if any, establish that a cessation of court-ordered visitation is in Child’s

       best interests?


[12]   As for what has changed, the inevitable passage of time must top the list. Child

       has gotten older and expanded her interests, activities, and social circle. She is

       becoming, perhaps, less content to spend some of her free time with

       Grandparents. Additionally, Child has begun to feel negatively about her

       relationship with Grandparents, expressing anger and frustration that it is not a

       more “normal” grandparent relationship.


[13]   The trial court, however, noted that the Grandparents have always made an

       effort to enable Child to participate in all scheduled extracurricular and social

       activities when she is with them during their visitation time. Furthermore, to

       the extent that Child has begun to feel negatively about her relationship with

       Grandparents, the trial court found that the negative feelings stem from Father’s

       own inappropriate conduct. Specifically, Father has continued to disobey court

       orders by discussing the court proceedings with Child, has commented about

       how her relationship with her paternal grandparents is “normal” but her

       relationship with Grandparents is not, and has said that he is doing everything

       he can to end the court-ordered visitation time. We agree with Grandparents

       that “Father should not be able to foster hostility toward Grandparents and

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 12 of 15
       then, when his alienation has been successful, to be able to completely

       terminate [Child’s] relationship with them.” Appellees’ Br. p. 32.


[14]   Grandparents testified that, in contrast to evidence presented by Father, their

       relationship with Child is even stronger at this point than it was two years

       earlier. Tr. p. 181-82, 200, 210-11. The trial court elected to credit

       Grandparents’ testimony over Father’s, a determination of both credibility and

       weight that we will not second-guess. Similarly, the trial court explicitly found

       that Father’s expert was not credible, and as we may not assess witness

       credibility on appeal, we will not second-guess that determination either. We

       note, however, that Father’s own expert testified that she would not

       recommend that Child not see Grandparents for extended periods of time—

       which is, essentially, precisely what Father planned to implement absent court-

       ordered visitation. Id. at 67, 125. In the end, Father asks us to reweigh the

       evidence and re-assess witness credibility—an invitation we decline. We find

       that the evidence in the record supports the trial court’s decision to continue

       court-ordered grandparent visitation in this case, albeit with a modified

       schedule necessitated by Father’s move to Colorado.


                               B. Occasional and Temporary
[15]   Next, Father argues that even if continued court-ordered grandparent visitation

       is warranted, the amount ordered by the trial court in this case is excessive. In

       the first appeal of this case, our Supreme Court found that weekly visits on

       Tuesdays and twenty-three overnights per year fell within the meaning of


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 13 of 15
       “occasional, temporary visitation” as contemplated by the Grandparent

       Visitation Act for this family. L-A.D.W., 38 N.E.3d at 1001. As modified,

       Grandparents are now entitled to twenty-one overnights per year, primarily

       during Child’s breaks from school. This is far less than the amount already

       approved by our Supreme Court in this case.


[16]   Father’s primary complaint about the new schedule is that he does not have

       sufficient notice of Child’s school, extracurricular, and social activities a year in

       advance to be able to schedule the grandparent visitation around those

       obligations. Additionally, he complains that the grandparent visitation

       schedule restricts his ability to schedule family vacations or trips. But we agree

       with Grandparents that a set schedule—the trial court’s order sets forth the

       dates of each grandparent visit for the next year—should actually provide

       Father with a greater ability to plan vacations with Child as he already knows

       what dates are and are not available. And to the extent Child may have

       extracurricular activities occurring during grandparent visitation time, we note

       again that Grandparents have always facilitated those activities and there is no

       reason to believe that they will not continue to do so. We find that the amount

       of grandparent visitation ordered after the trial court modified the schedule is

       within the meaning of occasional, temporary visitation contemplated by the

       Grandparent Visitation Act. Given the wide latitude we give to trial judges to

       fashion remedies in family law cases, we decline to set aside the schedule

       created by the trial court in this case.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016   Page 14 of 15
                                         II. Contempt Order
[17]   Father also argues that the trial court erred by finding him in contempt and

       sanctioning him for failing to provide Grandparents with information about

       Child’s new school in Colorado in a timely fashion. But the trial court stayed

       the fine pending Father’s compliance with the order. Generally, “there is no

       appealable final judgment in contempt cases until the court has proceeded to

       attach and punish the defendant by fine or imprisonment.” Bayless v. Bayless,

       580 N.E.2d 962, 964 (Ind. Ct. App. 1991). As there is no appealable final

       judgment at this time related to the contempt finding, the issue is not ripe for

       our review and we decline to consider it.1


[18]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       1
        We note that Father may very easily purge himself of the contempt finding and the fine by doing that which
       he should have done all along—comply with the trial court’s orders.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-DR-2235 | July 6, 2016           Page 15 of 15
