Bailey v. Menzie, No. 92A03-8607-CV-206

• Docket Nº: No. 92A03-8607-CV-206
• Citation: 505 N.E.2d 126
• Case Date: March 23, 1987
• Court: Court of Appeals of Indiana

Page 126

505 N.E.2d 126 Lola BAILEY, Petitioner/Appellant,
v.
Kenneth MENZIE and Linda Menzie, Respondents/Appellees. No. 92A03-8607-CV-206. Court of Appeals of Indiana,
Third District. March 23, 1987.

Page 127

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

Mark E. Wagner, Kizer, Neu, Joyce, Wyland, Humphrey, Wagner & Gifford, Bremen, for respondents/appellees.

STATON, Judge.

Lola Bailey appeals the trial court's dismissal of her petition for grandparent visitation, raising one issue:

Does Ind.Code 31-1-11.7-2(d), providing that grandparent visitation rights survive the adoption of the child by a stepparent, apply to preserve such rights for the grandparents of children adopted before the subsection was added?

We affirm.

Although we recognize that whenever a family matter is brought before a court of law, more may be involved than the legally relevant facts disclose, we limit our recitation to just those facts. Kenneth Menzie was married to Lola Bailey's daughter, Barbara, and a daughter, Amy, was born to them. Barbara Menzie died in February, 1975, when Amy was two years old. In October, 1978, Kenneth Menzie married Linda Menzie.

In 1981, the Indiana Legislature passed the Indiana Grandparent's Visitation Statute, IC 31-1-11.7, which provided, in part: "A child's maternal or paternal grandparent may seek visitation rights if: (1) the child's father or mother is deceased...." Acts 1981, P.L. 265, Sec. 1, codified at IC 31-1-11.7-2(1). ¹ In May of 1982, Lola Bailey petitioned for visitation under this statute, and in November 1982, after a determination that it was in Amy's best interests, the trial court granted Bailey's petition.

Shortly after Bailey was granted visitation rights, Linda Menzie petitioned for and was granted adoption of Amy. The Menzies thereafter filed a petition for modification and termination of the visitation order, and Bailey filed a verified information in contempt based upon Kenneth Menzie's refusal to comply with the visitation order. The trial court denied the Menzie's petition and found Kenneth Menzie in contempt. On appeal, however, this Court reversed on the ground that Linda Menzie's adoption of Amy cut off Lola Bailey's visitation rights under the Grandparent's Visitation Statute. In re Visitation of Menzie (1984), Ind.App., 469 N.E.2d 1225. ² We reasoned that relevant portions of Indiana's adoption statute placed a child's adoptive mother in the position of the natural or biological mother, and severed all legal ties between the adopted child and the natural mother and her family. Id. at 1227. See also IC 31-3-1-9. Thus, Linda Menzie became Amy's mother, and since she was not deceased, the conditions precedent to Lola Bailey's right to visitation under IC 31-1-

Page 128

11.7-1 no longer existed. Menzie, supra, 469 N.E.2d 1227.

Our opinion in this previous appeal was handed down October 31, 1984. In April of the following year, the legislature approved the addition of subsection (d), which took effect September 1, 1985. P.L. 281-1985, Sec. 1. The subsection provides that "[v]isitation rights provided for in [the statute] survive the adoption of the child by a stepparent." On October 31, 1985, Lola Bailey again petitioned for visitation of her granddaughter, Amy Menzie. The trial court dismissed her petition, citing our opinion in Menzie, and Bailey appeals, arguing that the legislature's addition of subsection (d) to the Grandparent's Visitation Statute was merely a "clarification" of the original statute. In the alternative, she argues that the added subsection should be applied retroactively to comply with the legislature's intent. We will address each of these arguments.

I.

Clarification

Lola Bailey argues that when the legislature added subsection (d) to the Grandparent's Visitation Statute, it was merely "clarifying" and not changing or adding to the statute. She argues that we should view the added subsection as evidence of legislative intent in adopting the original statute, and that we should give effect to this intent in interpreting and applying the statute.

One inference that may be drawn from an amendment adding a provision to a statute is that, in the view of the legislature, the statute as originally drafted did not contain the provision. Deutschman v. Charlestown (1872), 40 Ind. 449, 450, Bettenbrock v. Miller (1916), 185 Ind. 600, 606, 112 N.E. 771. On the other hand, our Supreme Court has recognized that, when a statute is ambiguous, we may look to subsequent amendments for evidence of the legislature's initial intent. Seymour Nat'l Bank v. State (1981), Ind., 422 N.E.2d 1223, 1226, modified, 428 N.E.2d 203; Bettenbrock, supra, 185 Ind. at 605, 112 N.E. 771. The amendment may be an attempt not to add a provision which was previously lacking, but to clarify that the provision is, in fact, a part of the statute.

Even in the latter case, however, we must bear in mind that the intent we are searching for is that of the legislature that passed the original statute, not that of any subsequent legislature. Bettenbrock, supra, 185 Ind. at 606, 112 N.E. 771. To the extent that the amendment merely represents the opinion of the amending legislature as to how the statute should be construed, it is not controlling. Construction of doubtful statutes is a judicial function, which the courts alone must perform. Id. at 607, 112 N.E. 771.

In our search for the intent of the original legislature, we must be very careful concerning the weight we give to various types of evidence. Later acts of a legislature provide "a highly unreliable basis for making a secondary inference...