                                                                         Feb 19 2016, 5:27 am




      ATTORNEY FOR APPELLANTS
      Christopher M. Gilley
      Anderson, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Adoption of                           February 19, 2016
      A.A. and L.A. (Minor Children)                             Court of Appeals Case No.
                                                                 48A02-1505-AD-328
                                                                 Appeal from the Madison Circuit
      J.B. and S.B.,                                             Court
      Appellants,                                                The Honorable Steven Nation,
                                                                 Special Judge
              v.
                                                                 Trial Court Cause No.
                                                                 48C03-1202-AD-11
      R.C. and N.C.,
      Appellees.




      Bailey, Judge.



                                           Case Summary
[1]   J.B. and S.B. (“Parents” or “Adoptive Parents”) petitioned for guardianship

      and later adopted A.A. and L.A. (“Children”). In 2012, the trial court granted


      Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016               Page 1 of 18
      R.C. and N.C. (“Grandparents” or “Maternal Grandparents”) grandparent

      visitation rights and ordered a specific visitation schedule. Parents, however,

      denied Grandparents the court-ordered visitation, prompting Grandparents to

      file numerous contempt motions to enforce the order. Parents in turn filed a

      petition to terminate grandparent visitation rights. Following consolidated

      hearings on the motions and petition, the trial court found Parents in contempt

      of court, ordered Parents to pay Grandparents’ attorney fees of over $17,000

      (plus $2,000 in previously-awarded fees) as a sanction for contempt, and denied

      Parents’ petition to terminate grandparent visitation rights. We affirm.



                                                     Issues
[2]   Parents present three issues for our review, which we reorder and restate as the

      following:


              I.       Whether the trial court abused its discretion in finding
                       Parents in contempt for refusing to comply with the court’s
                       orders on grandparent visitation;


              II.      Whether the trial court abused its discretion in ordering
                       Parents to pay $17,282.50 of Grandparents’ attorney fees
                       (plus $2,000 in previously-awarded attorney fees) as a
                       sanction for contempt; and




      Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 2 of 18
                 III.     Whether the trial court abused its discretion in denying
                          Parents’ petition to terminate grandparent visitation
                          rights.1


                                Facts and Procedural History
[3]   As the trial court observed, the facts and history of this case are “just extremely

      sad.” (Tr. 628.) In 2008, M.A. brutally murdered his wife and Children’s

      mother, C.A., in the presence of Children.2 J.B. and S.B.3 immediately took

      custody of Children and later petitioned for guardianship. Maternal

      Grandparents (C.A.’s adoptive parents) consented to the guardianship.4 Over

      time, however, the relationship between Parents and Grandparents grew

      strained.


[4]   On February 21, 2012, Parents filed an adoption petition, which was assigned

      to Judge Thomas Newman, Jr., of the Madison Circuit Court 3. Grandparents



      1
        Parents also raise a fourth issue: whether the trial court erred in ordering Parents to engage a clinical
      psychologist to evaluate the parties and determine the best method to reinstate grandparent visitation.
      Parents argue that the order was impermissible under this Court’s decision in In re Guardianship of C.R. &
      A.R., 22 N.E.3d 657, 661 (Ind. Ct. App. 2014) (holding that under the plain language of Indiana Code
      section 31-17-2-12, “the trial court does not have the authority to order [a child custody] evaluation, in a
      visitation proceeding, absent a request to do so from a parent or custodian”). However, Parents and Children
      have already submitted to the psychological evaluation; indeed, the appendix contains a copy of the
      psychologist’s report. This Court therefore cannot provide Parents the relief they seek, and the issue is now
      moot. See In re Tina T., 579 N.E.2d 48, 52 (Ind. 1991) (“An appeal or an issue becomes moot when [. . . ] the
      court on appeal is unable to render effective relief upon an issue.”).
      2
        At the time, A.A. was almost five years old and L.A. was an infant. M.A. pleaded guilty to murder and is
      serving a sixty-year sentence.
      3
          J.B. is M.A.’s half-brother. J.B. and S.B., then partners, are now married.
      4
       Children’s paternal grandmother also consented to the guardianship, but filed a petition for grandparent
      visitation rights at that time. Our supreme court’s opinion in In re Guardianship of A.J.A. & L.M.A., 991
      N.E.2d 110 (Ind. 2013), concerns paternal grandmother’s visitation rights.

      Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                      Page 3 of 18
      first filed an untimely objection to the adoption petition, then filed a separate

      cause of action seeking to establish grandparent visitation.5 Following a

      consolidated hearing on the adoption petition and grandparent visitation rights,

      the court entered an order on April 25, 2012 granting both Parents’ petition for

      adoption and Grandparents’ petition for visitation rights (“the April 2012

      order”). As to grandparent visitation, the court noted that Parents “have

      consented that visitation is appropriate by the grandparents, but that they would

      prefer that visitation not be specific, that visitation be left to the adoptive

      parent[s’] discretion.” (App. 150.) Nevertheless, the court ordered a specific

      visitation schedule, including one weekend per month, two weeks in the

      summer, and certain special occasions.


[5]   On May 23, 2012, Parents filed a motion to correct error, challenging the

      validity of the order on several grounds. Although Parents had permitted

      Grandparents to have visitation in May 2012, Parents denied Grandparents

      visitation in June and Grandparents’ requests for summer visitation. In

      response, Grandparents filed an affidavit for citation and request for sanctions

      and fees on June 22, 2012. Judge Newman transferred the matter to Senior

      Judge Carl VanDorn.


[6]   A consolidated hearing on the motions was held on July 16, 2012, and on

      August 13, 2012, the court issued two orders (“the August 2012 orders”). On



      5
       For a more detailed recitation of the early procedural history of this case, see In re Adoption of A.A. & L.A.,
      No. 48A04-1304-AD-176, slip op. 2-4 (Ind. Ct. App. Feb. 7, 2014), trans. denied.

      Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                           Page 4 of 18
      Parents’ motion to correct error, the court found that Judge Newman’s order

      granting visitation rights did not contain specific findings and conclusions as

      required by law. The court therefore remanded the case to Judge Newman to

      make those findings and conclusions, but specifically noted that the remand did

      not relieve Parents of their obligation to comply with the visitation order. In all

      other respects, the court denied Parents’ motion to correct error. As to

      Grandparents’ affidavit for citation and request for sanctions and fees, the court

      found that Parents intentionally violated the grandparent visitation order, found

      Parents in contempt, and as a sanction ordered Parents to pay $2,000 of

      Grandparents’ attorney fees incurred to enforce the order. (App. 9.) The court

      further ordered specific “make-up” visitation for the missed monthly and

      summer visitation.


[7]   Despite the court’s orders, Parents continued to deny Grandparents visitation.

      Grandparents soon filed a second affidavit for citation and request for

      incarceration, and a motion for attorney fees. Among various other motions,

      Parents moved for a change of judge. After several judicial officers declined

      appointment, the Honorable Steven R. Nation of the Hamilton Superior Court

      1 accepted appointment as a special judge on February 5, 2013. Meanwhile, on

      March 11, 2013, Judge Newman entered the required findings and conclusions

      to support the initial order granting grandparent visitation rights and

      implementing a structured visitation schedule. On appeal, this Court affirmed

      in all respects the trial court’s order on grandparent visitation. See In re Adoption




      Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 5 of 18
      of A.A. & L.A., No. 48A04-1304-AD-176, slip op. at 9 (Ind. Ct. App. Feb. 7,

      2014), trans. denied.


[8]   Following certification of this Court’s decision, Grandparents filed on June 3,

      2014 another affidavit for citation, motion to enforce order, and request for

      appropriate sanctions. On July 17, 2014, Parents filed a verified petition to

      terminate grandparent visitation rights. On September 15, 2014, November 5,

      2014, and January 13, 2015, Special Judge Nation heard evidence and

      argument on Grandparents’ pending contempt citations and motions6 and

      Parents’ petition to terminate. On March 26, 2015, the court found Parents in

      contempt for refusing regular and make-up visitation after the April 2012 and

      August 2012 orders and for failing to pay the previously-ordered $2,000

      sanction. The court then ordered Parents to pay an additional sanction of

      $17,282.50 in attorney fees (App. 37), reduced each sanction order to a

      judgment, and took under advisement Grandparents’ request for additional

      sanctions or incarceration. The court denied Parents’ request to terminate

      grandparent visitation rights.


[9]   Parents now appeal.




      6
       Grandparents’ pending motions included: July 3, 2014 Affidavit for Citation, Motion to Enforce Order, and
      Request for Appropriate Sanctions; May 8, 2013 Motion to Reduce Attorney Fee Order to Judgement;
      February 28, 2013 Motion for Proceedings Supplemental against [J.B.] and [S.B.] to Enforce Attorney Fee
      Order; August 15, 2012 Motion for Relief Against [J.B.] and [S.B.] Per IC 34-52-1-1; September 17, 2012
      Second Affidavit for Citation and Request for Incarceration; October 1, 2012 Amended Affidavit for Citation
      and Request for Incarceration.

      Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                    Page 6 of 18
                                  Discussion and Decision
[10]   We first note that Grandparents have not filed an appellees’ brief.

               Where the appellee fails to file a brief on appeal, we may, in our
               discretion, reverse the trial court’s decision if the appellant makes
               a prima facie showing of reversible error. McGill v. McGill, 801
               N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima
               facie error is defined as “at first sight, on first appearance, or on
               the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct.
               App. 2006). This rule was established for our protection so that
               we can be relieved of the burden of controverting the arguments
               advanced in favor of reversal where that burden properly rests
               with the appellee. McGill, 801 N.E.2d at 1251.


       In re Visitation of C.L.H., 908 N.E.2d 320, 326-27 (Ind. Ct. App. 2009). With

       this standard in mind, we turn to Parents’ contentions.


                                             Contempt Order
[11]   Parents argue that the trial court abused its discretion when it found Parents in

       contempt for failing to comply with the court’s April 2012 and August 2012

       orders on grandparent visitation.


[12]   Whether a party is in contempt of court is a matter within the trial court’s

       discretion. In re Paternity of M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).

       A court’s finding of contempt will be reversed only for an abuse of that

       discretion. Id. “A court has abused its discretion when its decision is against

       the logic and effect of the facts and circumstances before the court or is contrary

       to law.” Id.


       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 7 of 18
[13]   There are two types of contempt: direct and indirect. Akiwumi v. Akiwumi, 23

       N.E.3d 734, 737 (Ind. Ct. App. 2014). Willful disobedience of any lawfully-

       entered court order of which the offender had notice is indirect contempt.

       Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind. Ct. App. 2001), trans. denied.


               In order to be held in contempt for failure to follow the court’s
               order, a party must have willfully disobeyed the court order. Ind.
               High Sch. Athletic Ass’n v. Martin, 765 N.E.2d 1238, 1241 (Ind.
               2002). The order must have been so clear and certain that there
               could be no question as to what the party must do, or not do, and
               so there could be no question regarding whether the order is
               violated. Id. A party may not be held in contempt for failing to
               comply with an ambiguous or indefinite order.


       City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005).


[14]   Grandparents filed multiple affidavits for citation, the most recent of which

       alleged that Parents stopped “all visitation and communication” between

       Grandparents and Children after May 2012 despite the court’s prior orders.

       (App. 237.) At the hearing, Parents admitted that they denied Grandparents

       visitation and that Grandparents have had no contact with Children since May

       2012. Grandparents also introduced into evidence copies of emails sent

       between April 2012 and May 2013, in which Grandparents expressed their

       intention to exercise visitation rights in accordance with the court orders and

       Parents either denied visitation or simply did not reply. The trial court found

       that “Parents have presented no valid defense for their actions” (App. 37) and

       found them in contempt of the visitation orders.



       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 8 of 18
[15]   On appeal, Parents first point to several recent Indiana appellate court opinions

       concerning grandparent visitation rights, but present no cogent reasoning that

       explains the effect of these cases on the court’s finding of contempt. See Ind.

       Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the

       appellant on the issues presented, supported by cogent reasoning”). Parents

       seem to suggest that because they believed the court’s April 2012 order granting

       grandparent visitation rights was void, the trial court abused its discretion in

       finding them in contempt for failing to follow it.


[16]   A person cannot be held in contempt for failure to obey an order the court

       lacked jurisdiction to give; such an order is void and unenforceable. City of

       Gary, 822 N.E.2d at 169. However, a defendant may be found in contempt for

       violating an order that is erroneous or otherwise invalid. Id. “‘The only

       remedy from an erroneous order is appeal and disobedience thereto is

       contempt.’” Id. at 170 (quoting Carson v. Ross, 509 N.E.2d 239, 243 (Ind. Ct.

       App. 1987), trans. denied).


[17]   Parents had an opportunity to – and did – challenge the validity of the court’s

       visitation order, including the court’s jurisdiction. Parents first filed a motion to

       correct error. That motion was denied, except that Judge VanDorn remanded

       the case to Judge Newman for more detailed findings and conclusions. To that

       end, the court explicitly ordered: “It must be noted that the trial court’s failure

       to issue these findings does not release the ADOPTIVE PARENTS of their

       obligation to follow the visitation order.” (App. 7.) After the findings and

       conclusions were entered, Parents appealed the order granting visitation rights.

       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 9 of 18
       This Court affirmed in all respects, see A.A. & L.A., No. 48A04-1304-AD-176,

       slip op. at 9, and the Indiana Supreme Court denied Parents’ petition to

       transfer, 9 N.E.3d 170 (Ind. May 15, 2014) (table). As this Court has already

       reviewed the jurisdictional issues surrounding the trial court’s order granting

       grandparent visitation rights, we decline Parents’ invitation to revisit those

       issues. Parents’ belief that the orders were void is not a valid defense to their

       actions.


[18]   Parents also argue that the court’s order on contempt is an abuse of discretion

       because Parents were acting in Children’s best interest. According to Parents,

       “[i]t is not willful disobedience to do what is in the best interests of the children

       when the order would place the children in harm’s way.” (Appellant’s Br. 35.)


[19]   At the hearing, Parents testified at length about specific incidents of

       Grandparents’ conduct and why Parents believed contact with Grandparents

       would be harmful to Children or otherwise not in Children’s best interests.

       However, because Grandparents and Children have not had contact since May

       2012, Parents’ testimony and other supporting evidence focused on events and

       interactions that occurred prior to that time. Our review of the record shows

       that the behavior about which Parents complain was well-documented prior to

       the April 2012 adoption/visitation hearing, at which time Parents agreed to

       facilitate grandparent visitation and the trial court found that grandparent




       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 10 of 18
       visitation was in Children’s best interests.7 As to Parents’ concerns about

       Grandparents’ behavior after the April 2012 order, it is clear from the August

       2012 orders that Parents also presented those concerns to the trial court. After

       hearing Parents’ evidence and argument concerning the May 2012 visitation,

       Judge VanDorn found Parents in contempt for denying visitation, ordered

       Parents to comply with the April 2012 order, and further ordered make-up

       visitation.


[20]   Now Parents seek to use the same evidence to argue that they were not willfully

       disobedient of the court’s orders, but justifiably protecting Children. Although

       Parents argue that Grandparents’ “traumatizing conduct” and “pattern of

       behavior” was recently “brought to light,” thus “distinguish[ing] the matter

       now from the previous appeal” (Appellant’s Br. 14), the record does not support

       this assertion. And to the extent Parents now argue that they did not have

       ample time or notice to adequately raise and argue their concerns at the April

       2012 hearing, the time to bring that challenge was during the August 2012

       motion to correct error or on appeal of the original order.


[21]   By again raising the same evidence and arguments already presented to the trial

       court, Parents attempt to collaterally attack the court’s prior finding that a

       relationship with Grandparents is in Children’s best interests. Parents’




       7
        As this Court previously described, Parents’ position at the time of the visitation hearing “could be summed
       up as a reluctance to have structured visitation rights given to the Maternal Grandparents, more than a
       disagreement that visitation should occur at all.” A.A. & L.A., No. 48A04-1304-AD-176, slip op. at 8-9.

       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                     Page 11 of 18
       continuing disagreement with the trial court’s finding in this respect is not a

       valid justification for disobeying the order. Parents appealed the order, and this

       Court affirmed the trial court. After the adverse appellate decision, J.B.’s belief

       – no matter how sincere – that “I don’t believe that [the Court of Appeals] got

       the answers correct” (Tr. 293) does not relieve Parents of their obligation to

       follow a clear and unambiguous trial court order.


[22]   The trial court did not abuse its discretion in finding Parents in contempt for

       willfully disobeying a valid court order for grandparent visitation.


                                                    Sanction
[23]   Parents next challenge the trial court’s award of $17,282.50 in attorney fees as a

       sanction for their contempt.


[24]   After a party has been found in contempt of court, monetary damages may be

       awarded to compensate the other party for injuries incurred as a result of the

       contempt. City of Gary, 822 N.E.2d at 172. The determination of damages in a

       contempt proceeding is within the trial court’s discretion. Id. We will reverse

       an award of damages only if there is no evidence to support the award. Id. In

       establishing the amount of damages, the court may take into account “the

       inconvenience and frustration suffered by the aggrieved party . . . .” Id.

       (quoting Thomas v. Woollen, 255 Ind. 612, 266 N.E.2d 20, 22 (1971)).


[25]   In support of their request for sanctions, Grandparents submitted a January 13,

       2015 statement showing Grandparents had paid $19,252 in attorney fees since

       March 31, 2012, plus had an outstanding balance (including anticipated fees) of
       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 12 of 18
       $2,950. (Exhibit F.) R.C. stated at the hearing that the statement included the

       $2,000 in attorney fees previously awarded on August 13, 2012 as a sanction for

       contempt. The trial court ordered Parents to pay the $2,000 of previously-

       ordered fees, “an additional attorney fees sanction in the amount of

       $17,282.50,” and reduced each award to a judgment. (App. 37.)


[26]   Parents contend that the evidence does not support an additional sanction of

       $17,282.50 because not all of the fees listed on the statement were incurred as a

       result of Parents’ contumacious conduct. At the hearing, Parents alleged that

       certain line items on the statement related to the guardianship proceedings, not

       to the grandparent visitation case.8 Grandparents’ attorney made conciliatory

       comments – such as “I’ll cross that one out” (Tr. 508) – as to five of the charges

       totaling $612.50.9 (Tr. 506, 508, 514, 516; Exhibit F.) Based on this testimony

       and commentary, Parents argue that the statement was so inaccurate that “the

       Court should have disregarded the entire invoice.” (Appellant’s Br. 40.)


[27]   We disagree that Parents’ testimony rendered the invoice so inaccurate and

       unreliable that an attorney fees award based on the statement was an abuse of

       discretion. Although Parents objected to some of the fees as unrelated to the

       visitation matter and Grandparents’ attorney voiced her willingness to remove

       them, this does not preclude the possibility that the trial court determined that




       8
        Specifically, Parents pointed to charges incurred on April 23, April 30, May 16, May 21, May 22, June 25,
       August 3, November 30, and December 6, 2012, and March 12 and May 28, 2013.
       9
           These charges occurred on April 23, April 30, May 16, November 30, 2012 and May 28, 2013.


       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                     Page 13 of 18
       the majority of the fees billed were related to Parents’ contumacious conduct.

       See Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 204-05 (Ind. 2012) (holding that

       the trial court did not abuse its discretion when it imposed fees based on

       evidence presented during a preliminary injunction hearing, rather than

       apportioning fees to reflect only the parts of the hearing relevant to the

       contempt judgment). Furthermore, because $2,000 of those fees had already

       been awarded as a sanction for Parents’ contempt and some of the fees were

       speculative, the trial court did not award the full invoiced amount.10


[28]   The trial court did not abuse its discretion in ordering Parents to pay an

       additional $17,282.50 in attorney fees (plus $2,000 of previously-awarded fees)

       as a sanction for contempt.


                             Order on Grandparent Visitation
[29]   Parents also argue the court’s order denying Parents’ verified petition for

       termination of grandparent visitation rights was an abuse of discretion.


[30]   Parents first contend that the order was deficient because the order does not

       explicitly discuss four factors a court must address when granting or denying

       grandparent visitation as an initial matter. “When a trial court enters a decree

       granting or denying grandparent visitation, it is required to set forth findings of



       10
         Parents also argue that the trial court abused its discretion in ordering them to pay the $2,000 in
       previously-ordered attorney fees because Judge VanDorn vacated the previous contempt finding and
       sanctions order. In support, Parents cite passing comments made by the court during a December 17, 2012
       hearing. However, Parents point to no order vacating the August 2012 award. Our review of the court’s
       comments and the record as a whole show that the evidence and record do not support Parents’ argument.

       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                 Page 14 of 18
       fact and conclusions of law.” In re Paternity of K.I., 903 N.E.2d 453, 462 (Ind.

       2009) (citing McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003)).

       Indiana courts have held that those findings and conclusions must specifically

       address four factors, commonly known as the McCune factors: (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 simply limited visitation; and (4) whether the grandparent

       has established that visitation is in the child’s best interests. In re Visitation of

       M.L.B., 983 N.E.2d 583, 586 (Ind. 2013) (citing McCune, 783 N.E.2d at 757-59,

       and reordering the McCune factors).11 As our supreme court has explained, the

       “first three required factors implement the constitutionally protected right of fit

       parents to make child rearing decisions, and reflect the significant burden of

       proof grandparents must carry to override those decisions.” Id. at 587.


[31]   Because the trial court’s order did not explicitly address the first three McCune

       factors, Parents contend that the order was insufficient. However, Parents fail

       to acknowledge that the order being appealed at this stage is not an initial order

       granting grandparent visitation rights. That order was entered in April 2012,

       supplemented with the required findings and conclusions in March 2013, and

       affirmed on appeal in February 2014. See A.A. & L.A., No. 48A04-1304-AD-



       11
         In their brief, Parents state that the four factors were established by Hicks v. Larson, 884 N.E.2d 869 (Ind.
       Ct. App. 2008), trans. denied. The McCune factors are the same as those enumerated in Hicks. See Hicks, 884
       N.E.2d at 873-74.

       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016                        Page 15 of 18
       176. After this Court’s prior decision was certified, Parents then petitioned the

       trial court seeking modification of existing visitation rights, specifically asking

       that those rights be terminated. The order now being appealed is the trial

       court’s order denying Parents’ petition to terminate.


[32]   As to modification, the Act provides: “The court may modify an order granting

       or denying visitation rights whenever modification would serve the best

       interests of the child.” I.C. § 31-17-5-7. Parents argue that Grandparents

       “wholly failed to present any testimony, exhibits, or evidence to support that it

       is in the best interest of the children” and therefore “the order for visitation

       must fail.” (Appellant’s Br. 11.) In other words, they seek to shift the burden to

       Grandparents to show that grandparent visitation is still in Children’s best

       interests.


[33]   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 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.” For the purposes of

       custody and parenting time rights, both parents are presumed equally entitled to

       custody in an initial custody determination. In re Paternity of Snyder, 26 N.E.3d

       996, 998 (quoting Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App.

       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 16 of 18
       2010). However, after the initial determination, a petitioner seeking

       modification of a parenting time order bears the burden of showing that custody

       should be altered. Id.


[34]   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.


[35]   In making their argument for modification, Parents again relied on evidence

       and testimony about events that pre-dated the court’s May 2012 and August

       2012 orders. The trial court thus found that “Parents have failed to show a

       change of circumstances since the last Order that would make it no longer in

       the best interest of the minor children to have a relationship with their

       Grandparents.” (App. 35.)


[36]   By presenting no new evidence to support termination of visitation, Parents’

       motion to terminate amounted to nothing more than an attempt to re-litigate

       issues already brought before the court and affirmed on appeal. Now Parents

       argue that “[w]ith three (3) years of no visitation between [Grandparents] and

       the children, such a lapse in time between visits is in and of itself a substantial


       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 17 of 18
       change of circumstances.” (Appellant’s Br. 14.) However, Parents presented

       no evidence at the hearing that the lapse in time alone would be detrimental to

       Children’s well-being. Further, Parents fail to acknowledge that the lack of

       communication between Grandparents and Children was a direct result of

       Parents’ contumacious conduct.


[37]   Where Parents did not present any evidence showing a change of circumstances

       to support modification, let alone termination, of the visitation order, the trial

       court did not abuse its discretion in denying Parents’ petition to terminate

       grandparent visitation rights.



                                                Conclusion
[38]   The trial court did not abuse its discretion in finding Parents in contempt and

       ordering Parents to pay $17,282.50 in attorney fees (plus $2,000 in previously-

       ordered attorney fees) as a sanction for contempt. The trial court’s order

       denying Parents’ petition to terminate grandparent visitation rights was not an

       abuse of discretion.


[39]   Affirmed.


       Vaidik, C.J. and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1505-AD-328 | February 19, 2016   Page 18 of 18
