                                                                           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.

      Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019                                Page 2 of 12
                             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.

      Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019                            Page 3 of 12
      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


      Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019     Page 4 of 12
      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




      Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019      Page 5 of 12
       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.

       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019                              Page 6 of 12
                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

       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019                                  Page 7 of 12
       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.)

       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019                                 Page 8 of 12
                                           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).




       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019        Page 9 of 12
       “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

       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019      Page 10 of 12
       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.


       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019     Page 11 of 12
                                                 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.




       Court of Appeals of Indiana | Opinion 18A-MI-2115 | January 11, 2019    Page 12 of 12
