MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                   Jul 09 2018, 8:56 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
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estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Cody Cogswell                                            John T. Wilson
Fishers, Indiana                                         Jeffrey A. Lockwood
                                                         Anderson, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                     July 9, 2018
Guardianship of Cor.G. and                               Court of Appeals Case No.
Col.G,                                                   48A02-1711-GU-2676
William Tankersley and Mona                              Appeal from the Madison Circuit
Tankersley,                                              Court
                                                         The Honorable Thomas Newman,
Appellants-Petitioners,
                                                         Jr., Judge
        v.                                               The Honorable Christopher A.
                                                         Cage, Commissioner
Gregory Greer (Father) and                               Trial Court Cause Nos.
Shelly Brewer (Mother),                                  48C03-1608-GU-452, -453

Respondents,
      and
Tony Greer and Rebecca Greer,
Appellees-Intervenors




Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018                 Page 1 of 7
      Crone, Judge.


                                             Case Summary
[1]   William and Mona Tankersley (“Maternal Grandparents”) appeal the trial

      court’s order correcting a prior order regarding visitation with their

      grandchildren, ten-year-old Cor.G and twelve-year-old Col.G. (collectively “the

      Grandchildren”), who are under the guardianship of Troy and Rebecca Greer

      (“Paternal Grandparents”). They assert that the trial court abused its discretion

      in modifying its prior visitation order and in declining their request to hold

      Paternal Grandparents in contempt. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   On August 23, 2016, Paternal Grandparents filed an emergency petition for

      guardianship and custody of the Grandchildren. According to their petition,

      Paternal Grandparents sought guardianship because the Grandchildren’s

      natural parents have drug problems and “have both been found guilty of

      actively running a ‘meth lab’ on the property” where the Grandchildren were

      residing. Appellants’ App. Vol. 2 at 37. They alleged that the Department of

      Child Services (“DCS”) had been involved repeatedly with the natural parents,

      that the Grandchildren’s living situation with the parents was “substantially

      dangerous,” and that a guardianship was in the best interests of the

      Grandchildren. Id. at 36. On October 27, 2016, the trial court granted Paternal

      Grandparents temporary guardianship over the Grandchildren. On January 4,

      2017, with consent of the Grandchildren’s mother, Maternal Grandparents filed


      Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018   Page 2 of 7
      a motion to intervene and a petition for guardianship of the Grandchildren.

      The trial court granted the motion to intervene and set the matter for a

      permanent guardianship hearing.


[3]   The parties (including the Grandchildren’s parents and DCS) appeared for a

      permanent guardianship hearing on January 26, 2017. During the hearing, the

      parties reached an agreement that was recited in open court and approved by

      the trial court. Per the agreement, Paternal Grandparents were awarded

      guardianship of the Grandchildren and Maternal Grandparents were granted

      visitation. Specifically, the agreed-upon visitation consisted of alternating

      weekends, and two three-hour midweek visits. The natural parents were

      allowed only supervised visitation until further order of the court, and DCS

      agreed to dismiss the related children in need of services (“CHINS”) action that

      had been filed against the parents. The trial court directed Paternal

      Grandparents’ attorney, Charles Bugby, to prepare a written order reflecting the

      parties’ agreement. Bugby prepared an order that was signed by the trial court

      on February 7, 2017. In addition to the visitation agreed upon in open court,

      paragraph 11 of the order provided visitation time for Maternal Grandparents

      during the summer and holiday breaks in accordance with the Indiana

      Parenting Time Guidelines.


[4]   Bugby withdrew as counsel for Paternal Grandparents on February 23, 2017.

      On April 21, 2017, Paternal Grandparents filed a pro se motion with the trial

      court alerting the court that its February 2017 order contained a visitation

      provision that “was not agreed to in court.” Id. at 61. On May 11, 2017, the

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      Paternal Grandparents filed another pro se correspondence with the trial court

      alerting the court that although they were complying with the written visitation

      order and allowing Maternal Grandparents visitation that had never been

      agreed upon, there was substantial confusion and conflict between the parties

      because the visitation arrangement was more like a “divorce” arrangement

      instead of the intended “guardianship” arrangement. Id. at 62.


[5]   On May 26, 2017, Maternal Grandparents filed a rule to show cause and

      request for attorney’s fees against Paternal Grandparents alleging that they had

      denied them visitation on May 25, 2017, in violation of the written visitation

      order. The trial court set the matter for hearing and, in the meantime, ordered

      Paternal Grandparents to follow the court’s visitation order. Thereafter,

      Paternal Grandparents filed a motion for relief from judgment or in the

      alternative to modify order granting grandparent visitation.


[6]   The trial court held a hearing on all pending motions on June 21, 2017. On

      June 30, 2017, the trial court issued an order concluding in relevant part,


              [Paternal Grandparents] have raised an objection concerning the
              fact that they did not agree to holiday or summer visitation
              pursuant to the Indiana Parenting Time Guidelines at the hearing
              on January 26, 2017. Rather the first time they became aware of
              that provision in the written agreement was after the fact. Having
              reviewed the oral record of said hearing, the Court is inclined to
              agree…. No specific mention of those holidays or breaks were
              mentioned. Accordingly, the written order did not accurately
              reflect what was tendered to the Court orally in open Court. As
              such, the visitation order is required to be modified in order to


      Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018   Page 4 of 7
              accurately reflect what was submitted and approved by the
              Court.


      Appealed Order at 3. Therefore, the trial court struck paragraph 11 of the

      original visitation agreement and stated, “All other visitation shall remain as

      ordered.” Id. The trial court further concluded that Maternal Grandparents’

      “request for show cause and attorney fees is DENIED at this time.” Id.

      (emphasis omitted). Maternal Grandparents filed a motion to correct error

      which was subsequently denied by the trial court. This appeal ensued.1


                                      Discussion and Decision

         Section 1 – The trial court did not abuse its discretion in
      correcting the visitation order to accurately reflect the parties’
                                 agreement.
[7]   Maternal Grandparents first argue that the trial court abused its discretion in

      modifying visitation absent a showing that such modification was in the best

      interests of the Grandchildren. However, no modification of the agreed-upon

      visitation occurred. Rather, the trial court essentially entered a nunc pro tunc

      order to correct its February 2017 written order to “accurately reflect what was

      submitted and approved by the Court.” Appealed Order at 3; see Cotton v. State,

      658 N.E.2d 898, 900 (Ind. 1995) (a nunc pro tunc order is “an entry made now




      1
       The Grandchildren’s natural parents and original respondents in the guardianship proceedings, Gregory
      Greer and Shelly Brewer, did not file briefs on appeal. However, we have included them on the caption page
      because pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on
      appeal.

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      of something which was actually previously done, to have effect as of the

      former date.”) (citation omitted). Maternal Grandparents have shown no abuse

      of discretion.


           Section 2 – The trial court did not abuse its discretion in
                      denying the petition for contempt.
[8]   Maternal Grandparents also argue that the trial court abused its discretion in

      declining to find Paternal Grandparents in contempt for restricting their

      visitation in violation of the written visitation order. Generally, the

      determination of whether a party is in contempt is a matter within the trial

      court’s discretion, and we will reverse a trial court’s decision in this regard only

      if we find that an abuse of that discretion has occurred. Van Wieren v. Van

      Wieren, 858 N.E.2d 216, 222-23 (Ind. Ct. App. 2006). “When reviewing a

      contempt order, we will neither reweigh the evidence nor judge the credibility

      of witnesses.” Id. at 223. “Crucial to the determination of contempt is the

      evaluation of a person’s state of mind, that is, whether the alleged

      contemptuous conduct was done willfully.” Steele-Giri v. Steele, 51 N.E.3d 119,

      129 (Ind. 2016) (citation omitted).


[9]   Paternal Grandparents conceded that they did restrict some visitation, but they

      testified unequivocally that it was never their intent to deprive Maternal

      Grandparents of visitation with the Grandchildren. They explained that any

      restrictions were minimal, and that such restrictions were mainly due to the

      confusion caused by the fact that the written visitation order did not accurately

      reflect what they had agreed to in open court. Paternal Grandfather further

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       explained that his son (the Grandchildrens’ father) had threatened his life and

       that because Maternal Grandparents had been allowing his son to see the

       Grandchildren during their visitation time, Paternal Grandfather was

       concerned for the Grandchildren’s safety and so he briefly halted visitation until

       a hearing could be held. Maternal Grandmother testified that she understood

       why Paternal Grandparents would have wanted to restrict visitation under the

       circumstances.


[10]   The trial court, who saw the witnesses and heard their impassioned testimony,

       declined to find the conduct of Paternal Grandparents to be willfully

       contemptuous under the circumstances. However, the court warned that “any

       further denials of visitation may result in the imposition of fees.” Appealed

       Order at 4. This was a reasonable exercise of discretion, and we reject Maternal

       Grandparents’ invitation to reweigh the evidence and substitute our judgment

       for that of the trial court. The trial court did not abuse its discretion in

       declining to find Paternal Grandparents in contempt. The judgment of the trial

       court is affirmed.


[11]   Affirmed.


       Bailey, J., and Brown, J., concur.




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