                                                                           FILED
                                                                       Jan 30 2019, 8:57 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
Robert E. Shive                                            Charles P. Rice
Paul R. Sadler                                             Murphy Rice, LLP
Emswiller, Williams, Noland &                              South Bend, Indiana
Clarke, LLC
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Walker and                                          January 30, 2019
Patricia Walker,                                           Court of Appeals Case No.
Appellants-Petitioners,                                    18A-MI-1768
                                                           Appeal from the Hamilton
        v.
                                                           Superior Court
Megan (Buckner) Knight,                                    The Honorable Steven R. Nation,
Appellee-Respondent                                        Judge
                                                           Trial Court Cause Nos.
                                                           29D01-1703-MI-2800
Robert Walker and                                          29D01-1703-MI-2801
Patricia Walker,
Appellants-Petitioners,

        v.

Ashley Erin Carpenter,
Appellee-Respondent




Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019                           Page 1 of 10
      Baker, Judge.


[1]   Robert Walker and Patricia Walker (the Walkers) appeal the trial court’s orders

      granting summary judgment in favor of Megan Knight and Ashley Carpenter

      (the Mothers) on the Walkers’ petitions for grandparent visitation, arguing that:

      (1) the Mothers should be equitably estopped from arguing that the Walkers

      lack standing; and (2) the Walkers preserved their rights to grandparent

      visitation by timely filing the petitions. Finding that the Walkers preserved their

      right to a hearing, we reverse and remand for further proceedings.


                                                      Facts
[2]   The Walkers had one son, Braden Walker, who is now deceased. Braden had a

      child, C.W., with Knight. Braden had another child, J.W., with Carpenter.

      Both C.W. and J.W. were born out of wedlock, but Braden established legal

      paternity for each child during his lifetime. The Mothers have each gotten

      married, and their respective husbands each filed a petition for step-parent

      adoption after Braden’s death.1


[3]   On March 22, 2017, the Walkers filed petitions for grandparent visitation for

      both C.W. and J.W. under two separate causes. Under the Grandparents

      Visitation Act (GVA),2 grandparents may seek continuing visitation after the




      1
          Knight’s husband sought to adopt C.W., and Carpenter’s husband sought to adopt J.W.
      2
          See Ind. Code ch. 31-17-5.


      Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019                      Page 2 of 10
      child’s parent is deceased. When the Walkers filed their petitions for visitation,

      the petitions for step-parent adoption of C.W. and J.W. were pending in the

      trial court. The Walkers and the Mothers stipulated in a written agreement that

      the trial court would address the issue of grandparent visitation only after the

      adoptions were finalized. The Mothers were also given an extension of time

      after the adoptions were finalized to respond to the Walkers’ visitation requests.

      The trial court finalized J.W.’s adoption in July 2017 and C.W.’s adoption in

      August 2017.


[4]   On January 26, 2018, Carpenter filed a motion for summary judgment, arguing

      that because the adoption of J.W. had been finalized, the Walkers no longer

      had standing to seek grandparent visitation. Carpenter also filed a motion to

      strike the portions of the Walkers’ petitions for grandparent visitation and

      affidavits in which the Walkers refer to themselves as the “grandparents” of

      J.W. Appellants’ App. Vol. II p. 45. Similarly, on April 23, 2018, Knight filed a

      motion for summary judgment, making the same argument as to C.W. On July

      5, 2018, the trial court granted Knight’s motion for summary judgment, and on

      July 7, 2018, the trial court granted Carpenter’s motions for summary judgment

      and to strike.


[5]   In both orders, the trial court took judicial notice of the adoption decrees

      proffered by the Mothers, verifying that the adoptions of C.W. and J.W. had

      been finalized by their respective step-fathers. Furthermore, the trial court

      concluded that once C.W. and J.W.’s adoptions had been finalized, the



      Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019      Page 3 of 10
      Walkers no longer fit the definition of “grandparent.” 3 Braden’s death and the

      step-fathers’ acts of adopting C.W. and J.W. severed the legal, familial

      relationship between the Walkers and the two children.


[6]   The trial court concluded that the Walkers did not do enough by simply filing

      their petitions before the adoptions were finalized. Specifically regarding J.W.’s

      adoption, the trial court stated, in pertinent part:


               The Walkers have never had any “Visitation rights” that could
               have “survive[d]” the adoption under Section 9 of the GVA.
               Because “no right to visitation had already been given by a court,”
               the Walkers “have no visitation rights for section 31-17-5-9 to
               protect. . . .”

                                                            ***

               For this reason alone, the Walkers’ Petition for Grandparent
               Visitation fails as a matter of law.

                                                            ***

               [T]he GVA was amended in part to read that a petition for
               grandparent visitation “must be filed prior to the date a decree of
               adoption is entered.” Here, the petition for grandparent visitation
               was filed in March 2017, before the adoption decree was entered
               in July 2017. However, although a pre-adoption petition is a
               necessary condition for grandparent visitation, it is not the only
               condition. As discussed above, after a step-parent adoption, a
               court may enforce such visitation only if the petitioner (1) has
               “Visitation rights” that “survive the adoption of the child” under
               Indiana Code § 31-17-5-9 and (2) is still a “grandparent” as defined
               by Indiana Code § 31-9-2-77, and neither of these Indiana Code
               provisions was changed by the 2017 amendment. Here, the



      3
        A maternal or paternal grandparent 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. Ind. Code § 31-9-2-77.

      Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019                                Page 4 of 10
              Walkers fail on both counts: they do not have visitation rights that
              survived the adoption, and they are no longer the grandparents of
              [J.W.]

                                                         ***

              Contrary to the Walkers’ argument, the Notice and Stipulation did
              not “waive” any claim or defense by either party. . . .

                                                         ***

              Whether the Walkers are currently [J.W.’s] “grandparents” as
              defined under the GVA is a legal question for this Court to decide.
              Nevertheless, in arguing that they were the grandparents when
              their Petition for Grandparent Visitation was filed, the Walkers
              tried to introduce into the summary judgment record affidavits and
              other inadmissible evidence, which contained conclusions of law
              and self-serving statements to the effect that they still are [J.W.’s]
              grandparents.

                                                         ***

              The Court should therefore grant Carpenter’s “Motion to Strike
              Parts of Petitioners’ Designation of Evidence.”


      Appellants’ App. Vol. II p. 41-45 (some internal citations and quotation marks

      omitted) (emphases original). The Walkers now bring this consolidated appeal.


                               Discussion and Decision
[7]   The Walkers claim that the trial court erred when it entered summary judgment

      in favor of the Mothers, arguing that: (1) the Mothers should be equitably

      estopped from arguing that the Walkers lack standing; and (2) the Walkers




      Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019       Page 5 of 10
      preserved their rights to grandparent visitation by filing the petitions before the

      adoptions were finalized.4


[8]   Our standard of review for a party challenging entry of partial or full summary

      judgment pursuant to Indiana Trial Rule 56(C) is well established:


               We review summary judgment [rulings] using the same standard
               as the trial court: summary judgment is appropriate only where the
               designated evidence shows there is no genuine issue of material
               fact and the moving party is entitled to judgment as a matter of
               law. All facts and reasonable inferences are construed in favor of
               the non-moving party. Where the challenge to summary judgment
               raises questions of law, we review them de novo.


      Quirk v. Del. Cty., 91 N.E.3d 1008, 1013 (Ind. Ct. App. 2018)

      (internal citations and a footnote omitted). Moreover, “[a] trial court’s

      grant of summary judgment is clothed with a presumption of validity[.]”

      Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind.

      Ct. App. 2005).

                                         I. The Agreement
[9]   The Walkers first argue that the Mothers should be equitably estopped from

      claiming that after the adoptions were finalized, the Walkers no longer had a




      4
        The Walkers also argue that the trial court inappropriately took judicial notice of the children’s adoption
      decrees. Indiana Rule of Evidence 201(a)(1)(B) states that a “court may judicially notice a fact that can be
      accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
      Additionally, subsection (a)(2) says that a court may take judicial notice of “the existence of records of a
      court of this state.” Both parties acknowledged that the adoptions had occurred. Indeed, the decrees were
      issued by the very same court. We find no error on this basis.

      Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019                                Page 6 of 10
       right to seek visitation with the children. They base this argument on the fact

       that the Mothers agreed to delay the visitation matter until after the adoptions

       were finalized. Since there is no evidence of the Mothers fraudulently inducing

       the Walkers into the agreement, we will analyze the nature of the agreement

       and whether it is enforceable. See Town of New Chi. v. City of Lake Station ex rel.

       Lake Station Sanitary Dist., 939 N.E.2d 638, 653 (Ind. Ct. App. 2010) (holding

       that for the defense of equitable estoppel to be available, there must be a

       showing that “[o]ne who by deed or conduct has induced another to act in a

       particular manner . . .”).


[10]   We review agreements between two parties as if such agreements “are

       contractual in nature and binding on the parties.” City of Jeffersonville v. Envtl.

       Mgmt. Corp., 954 N.E.2d 1000, 1012 (Ind. Ct. App. 2011). “If the contract is

       clear and ambiguous, we may not construe the contract or look at extrinsic

       evidence; rather, we must simply apply the contractual provisions.” Singh v.

       Singh, 844 N.E.2d 516, 524 (Ind. Ct. App. 2006). Furthermore, terms are not

       ambiguous simply because the parties disagree about the terms’ proper

       interpretation. Id.


[11]   The pertinent stipulations, to which all parties agreed, read as follows:


               3. At this time, the above Parties believe it is in their best interests
               to proceed with [the grandparent visitation] action after the
               Adoption Matter has concluded at the trial court level.


               4. Therefore [the Walkers], would agree [the Mothers] should be
               given a reasonable extension within which to respond to the

       Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019          Page 7 of 10
               Petition for Grandparents Visitation after the Adoption Matter has
               concluded at the trial court level, and [the Walkers] shall request a
               hearing in due course.


               5. By this stipulation, no party waives any claim or affirmative
               defense and the fact of entering into this stipulation will not
               prejudice either party.


       Appellants’ App. Vol. III p. 12-13. The terms of the agreement are clear and

       unambiguous. The Walkers agreed to let the adoptions of C.W. and J.W.

       conclude before they proceeded with matters regarding grandparent visitation.

       And the Mothers agreed to let the Walkers make their case for grandparent

       visitation following the adoptions. The Mothers do not contest the contents of

       the agreement nor do they deny that they were given more time after the

       children’s adoptions were finalized to respond to the Walkers’ petitions. It is

       undisputed that all parties understood and accepted the terms as written at the

       time the agreement was made.


[12]   Even though there is no evidence of actual fraud warranting the application of

       equitable estoppel, the Mothers cannot preclude the Walkers from a hearing on

       their petitions for grandparent visitation after stipulating to the contrary. For

       situations as delicate and personal as negotiating family visitations, we want

       people to work these matters out in a similar fashion, especially if tensions are

       high and children are involved. Not enforcing this crucial agreement might

       discourage parties from doing exactly what the Walkers and the Mothers

       intended to do in the first place: allow themselves to privately resolve a very

       personal and sensitive matter in tandem with the family court system. We want

       Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019       Page 8 of 10
       to avoid a situation in which parties enter into an agreement with the prior

       knowledge that the law will advantage them, disadvantage an opposing party,

       and ultimately render the agreement unenforceable. Accordingly, the agreement

       is clear, unambiguous, and binding upon the parties.


[13]   Therefore, we find that the agreement between the Walkers and the Mothers is

       enforceable and that the agreement explicitly provided that the Walkers may

       proceed with, at a minimum, a hearing on the merits of their petitions for

       grandparent visitation. In other words, summary judgment should not have

       been entered for the Mothers.


                          II. Grandparent Visitation Act
[14]   As a final aside, we note that the Walkers argue that they preserved their rights

       to grandparent visitation by solely filing their petitions before the adoptions

       were finalized. More specifically, the Walkers claim that the act of filing the

       petitions alone gave them the “visitation rights” necessary to survive adoption

       under section nine of the GVA, which states that “[v]isitation rights . . . survive

       the adoption of the child by any of the following: . . . a stepparent[.]” Ind. Code

       § 31-17-5-9(1).


[15]   We have already found that the Mothers waived their right to argue that the

       GVA precludes the Walkers from attaining visitation rights because they agreed

       to allow the Walkers to proceed on the merits after C.W. and J.W.’s adoptions

       were finalized. Without the agreement, however, the law seems to support the


       Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019      Page 9 of 10
       Mothers’ position regarding grandparent visitation rights. “Visitation rights”

       mean those which have already been established by court order before

       adoption. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013) (holding

       that “[b]ecause the visitation order had been issued first, it survived termination

       of the father’s rights under Indiana code section 31-17-5-9”); Jocham v. Sutliff, 26

       N.E.3d 82, 87 (Ind. Ct. App. 2015) (holding that “[p]revious court precedent

       has defined the ‘[v]isitation rights’ referenced in section 31-17-5-9 as visitation

       rights already exercised or established by court order . . . prior to the

       adoption”).


[16]   Nevertheless, we recognize the confusion that might arise from someone who is

       not aware of existing case law on the subject. To the average individual, a

       phrase like “visitation rights” might not indicate a requirement to obtain a court

       order. We encourage our General Assembly to clarify what “visitation rights”

       means so that, in the future, grandparents seeking visitation in the same

       situation understand the proper protocol.


[17]   In sum, we reverse the summary judgment orders entered in favor of the

       Mothers and remand for further proceedings on the petitions for grandparent

       visitation.


[18]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       May, J., and Tavitas, J., concur.


       Court of Appeals of Indiana | Opinion 18A-MI-1768 | January 30, 2019        Page 10 of 10
