Bailey v. Menzie

Decision Date24 August 1989
Docket NumberNo. 20A03-8806-CV-195,20A03-8806-CV-195
Citation542 N.E.2d 1015
PartiesLola BAILEY, Petitioner-Appellant, v. Linda MENZIE and Kenneth Menzie, Respondents-Appellees.
CourtIndiana Appellate Court

David C. Kolbe, Warsaw, for petitioner-appellant.

Mark E. Wagner, Kizer & Neu, Bremen, for respondents-appellees.

GARRARD, Presiding Judge.

Lola Bailey (Bailey) has now been before this court three times in her pursuit of visitation rights with a former granddaughter, Amy Menzie. Bailey's latest petition for visitation rights having been dismissed by the trial court, she brings this appeal. We reverse.

Barbara and Ken Menzie were the natural parents of a daughter, Amy, who was born in 1973. Barbara died in 1975 and in 1978 Ken married his present wife, Linda. Barbara's mother, Bailey, pursuant to the then newly enacted Grandparent's Visitation Act, IC 31-1-11.7-1 et seq. ("Act"), petitioned for and was granted such rights in November of 1982. Apparently in response to the visitation order, Linda Menzie soon petitioned to adopt Amy. The court granted that petition and entered a decree of adoption in February of 1983.

Before year's end the parties' relationship had collapsed and the Menzies moved the court for modification or termination of Bailey's visitation rights. Bailey countered with a verified motion for contempt on the grounds that the Menzies were not respecting her visitation rights under the November 1982 order. After denying the Menzies' motion, the trial court entered a contempt citation and ordered that visitation recommence. The Menzies appealed and this court reversed on the grounds that the adoption decree severed Amy from the Bailey family tree. Bailey had no rights under the Act because she was no longer Amy's grandmother. In re Visitation of Menzie (1984), Ind.App., 469 N.E.2d 1225.

An amendment to the statute set the stage for round two. The Legislature added subsection (d) which provided that a grandparent's visitation rights survive the adoption of the child by a stepparent. Acts 1985, P.L. 281 Sec. 1. Bailey's petition under the statute as amended was dismissed. On appeal this court affirmed holding that the new subsection was an amendment rather than a clarification and, accordingly, was to be applied only prospectively. Bailey v. Menzie (1987), Ind.App., 505 N.E.2d 126. Sans retrospective application, Bailey was left without visitation rights despite the fact that implicit in the November 1982 visitation order was a finding that Bailey's influence on Amy was in the child's best interest. See IC 31-1-11.7-3.

Yet another amendment to the statute has set the stage for this third appeal. Following the second Menzie decision, the Legislature declared that "IC 31-1-11.7-2 applies to visitation rights of grandparents who have been granted visitation rights before September 1, 1985." Acts 1987, P.L. 293 Sec. 7. Bailey again petitioned for visitation, but the trial court dismissed her petition in reliance upon the following passage from our 1987 decision: "Even assuming arguendo that retroactive application is appropriate in such circumstances, they do not exist here." Bailey v. Menzie, 505 N.E.2d at 129.


The issue presented in this appeal is whether or not the 1987 amendment can be applied to Bailey consistently with constitutional requirements that the powers of government be exercised by three equal departments. Indiana Constitution, art. 3, Sec. 1.


Just as it is imperative in the context of statutory construction to acknowledge what a statute addresses and what it does not, Bonge v. Risinger (1987), Ind.App., 511 N.E.2d 1082, a recognition of what this court has and has not held is indispensable to an understanding of this decision. All that this court's 1984 ruling held was that the Bailey fact pattern did not meet the conditions precedent for a proper application of the Grandparent's Visitation Act. In re Visitation of Menzie, supra, 469 N.E.2d at 1227. Under the terms of that Act and the adoption statute, Linda is now Amy's mother, IC 31-3-1-9, and, of course, Linda's mother, not Lola Bailey, is Amy's maternal grandmother because she is "the parent of the child's adoptive parent...." IC 31-1-11.7-1(2). Bailey's visitation rights under the November 1982 order were premised upon her wielding rights granted under the Grandparent's Visitation Act, but following Amy's adoption the act no longer applied. See also Lipginski v. Lipginski (1985), Ind.App., 476 N.E.2d 924.

Similarly, our conclusions in the 1987 Menzie decision are not inconsistent with what we decide today. We held then that subsection (d) as appended to the Act was an amendment rather than a clarification and as such warranted only prospective application. Bailey v. Menzie, supra, 505 N.E.2d at 128-29. That one sentence from our 1987 decision which is offered as the basis of the trial court's dismissal of Bailey's latest petition is taken out of context. Therein Judge Staton was, with some skepticism, discussing the circumstances under which retroactive application of a statutory amendment is necessary despite the Legislature's failure to so provide. Bailey v. Menzie, supra, 505 N.E.2d at 129. Cf. State ex rel. Uzelac v. Lake Criminal Ct. (1965), 247 Ind. 87, 93, 212 N.E.2d 21, 24. ("A statute will be interpreted as having a retroactive effect only where the legislative intent is clear or the language imperatively requires it.") Judge Staton noted that it is at least arguable that retroactive application should be ordered where essential to serve the law's purpose. He, nonetheless, concluded that this was not necessary to carry out the purposes of subsection (d); it was necessary only to restore visitation rights to Bailey. Bailey v. Menzie, supra, 505 N.E.2d at 129. For the purpose of today's analysis it is important to note that both prior cases thus dealt with the vitality of the visitation order entered in November, 1982. With the passage of Acts 1987, P.L. 293 Sec. 7, the Legislature appears to have declared Bailey and others similarly situated eligible to petition for visitation rights.

Judge Hoffman's concern in his concurrence to our 1987 decision should not deprive Bailey of her hearing. Judge Hoffman expressed concern that the Legislature's amendments, if applied retrospectively, would impermissibly " 'interfere with a judicial determination.' State ex rel Mass. Transp. Auth. v. Indiana Rev. Bd. (1969), 144 Ind.App. 63, 87-88, 253 N.E.2d 725, 731, (en banc)." Bailey v. Menzie, supra, 505 N.E.2d at 130 (Hoffman, J. concurring). The series 1 of opinions by this court and the Indiana Supreme Court in the M.T.A. dispute concluded, among other things, that where a court of competent jurisdiction renders a decision in a dispute before it, no sequent legislative maneuvers can deprive the judgment holder of its judgment. Id. Cf. Searcy v. The Patriot and Barkworks Turnpike Co. (1881), 79 Ind. 274. To allow the Legislature to act otherwise would violate the separation of powers provisions of the Indiana Constitution and leave the judiciary impotent. Indiana Constitution, art. 3 Sec. 1. State ex rel Hovey v. Noble (1888), 118 Ind. 350, 370, 21 N.E. 244, 251-52. ("The duty of maintaining the separation of the departments of the government and the integrity and existence of the courts as established and organized by the Constitution is one of the most important that the judiciary is required to perform.") Here the Legislature's enactments were legitimate responses to our previous rulings and because a proper reading of our prior decisions reveals no conflict with these amendments, they will be given full effect.

Where possible we will embrace an interpretation that renders a statute, or amendment thereto, constitutional. Willis v. State (1986), Ind.App., 492 N.E.2d 45. Thus we must endeavor to construe Acts 1987, P.L. 293 Sec. 7 so as not to render it "obnoxious to constitutional prohibitions." State v. Rice (1956), 235 Ind. 423, 134 N.E.2d 219. While M.T.A. dealt with the issue of when the Legislature would be permitted to retroactively repeal legislation, those same concerns arise in the context of the General Assembly's attempt to enact retroactively effective legislation: "The General Assembly shall not violate a constitutional guarantee" and "shall not impair vested rights." 253 N.E.2d at 730. The Menzies have not pointed to explicit constitutional guarantees which would be contravened by application of the statute to the case at bar. On the other hand, the vested right debate is not so summarily concluded, especially when the question is raised in conjunction with the separation of departments challenge.

The Legislature has obviously chosen to alter its course in family law. No longer can we employ, as we were once so fond of doing, that botanical analogy between the consequences of an adoption and tree surgery to the effect that "a decree of adoption severs the child from its own family tree and engrafts it upon that of another." In re Adoption of Bryant v. Kurtz (1963), 134 Ind.App. 480, 487-88, 189 N.E.2d 593, 597; Bristow v. Konopka (1975), 166 Ind App. 357, 361, 336 N.E.2d 397, 400; Matter of Adoption of Thomas (1982), Ind.App., 431 N.E.2d 506, 513; In re Visitation of Menzie, supra, 469 N.E.2d at 1227; Lipginski v. Lipginski, supra, 476 N.E.2d at 927.

Before the grandparent's visitation statute was enacted, the General Assembly worked to effect such a severance on several fronts including the adoption statute, IC 31-3-1-9, the intestacy statute, IC 29-1-2-8, and in the probate code, IC 29-1-6-1(d). Seemingly, the Legislature has recognized a difference between an adoption in the traditional sense of a wholly new family unit and adoption where the new family unit contains a natural parent and a former stepparent. In the former it is imperative that most all ties be dissolved while in the latter case the Act accepts implicitly the position that certain biological ties...

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