Hammons v. Jenkins-Griffith, 67A01-0104-JV-145.
| Decision Date | 13 March 2002 |
| Docket Number | No. 67A01-0104-JV-145.,67A01-0104-JV-145. |
| Parties | Jasper HAMMONS, Jr., and Stella Hammons, Appellants-Petitioners, v. Cassandra JENKINS-GRIFFITH, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Gail E. Bradley, Jr., Greencastle, IN, Attorney for Appellants.
John R. McKay, Hickam & Lorenz, Spencer, IN, Attorney for Appellee.
Jasper Hammons, Jr. and Stella Hammons ("Great-Grandparents") petitioned the trial court to modify its order addressing the support and custody of their great-grandchild, S.E.B. They requested in their petition "the right to regular visitation with [S.E.B.]" (App. at 25.) The trial court dismissed the petition. On appeal, they raise two issues, which we restate as whether the trial court erred in dismissing their Petition to Modify, given their long-term relationship with S.E.B., and whether the trial court erred in dismissing their Petition to Modify without a hearing.
We affirm.
S.E.B. was born on November 2, 1993. A paternity action was filed, and on February 3, 1994, paternity was established. On November 16, 1995, the Great-Grandparents were appointed as guardians and given custody of S.E.B. That guardianship was terminated on March 19, 1997, and custody of S.E.B. was given to her mother, C.G. ("Mother"). In an Order filed on that date in the paternity action, the trial court stated:
(App. at 16.) (Emphasis in original.)
On May 22, 1998, Great-Grandparents filed a Petition to Modify in the paternity case. They asserted that Mother had not been allowing them the recommended visitation and they requested that the trial court order "a visitation schedule similar to that of a natural parent in Indiana dissolution cases, since the natural father... does not exercise his visitation rights with [S.E.B.]." (App. at 25.)
No further action was taken until the Great-Grandparents requested that a hearing be set on their Petition. That hearing was scheduled for March 13, 2001. On February 2, 2001, Mother filed a Motion to Dismiss the Petition to Modify. On February 28, 2001, the trial court dismissed the Petition to Modify without a hearing.
A Rule 12(B)(6) motion to dismiss tests the legal sufficiency of the complaint. When reviewing a 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party and we draw every reasonable inference in favor of that party. We will affirm a successful T.R. 12(B)(6) motion when a complaint states a set of facts that, even if true, would not support the relief requested in that complaint. Further, we will affirm the trial court's grant of a motion to dismiss if it is sustainable on any theory or basis found in the record. Right Reason Publications v. Silva, 691 N.E.2d 1347, 1349 (Ind.Ct.App.1998).
Initially, we note that the trial court's Order of March 19, 1997, did not order visitation to the Great-Grandparents—it only recommended that such visitation take place. The Great-Grandparents' Petition to Modify essentially requested that the trial court change its recommended visitation to court-ordered visitation.
The trial court was correct when it dismissed the Great-Grandparents' Petition to Modify. Indiana Code § 31-17-5-1 et seq., ("the Grandparent Visitation Statute"), applies only to requests for visitation made by grandparents. The specific inclusion of one entity usually precludes the implication of another entity's inclusion in the same statutory provision. So, when certain items or words are specified or enumerated in a statute, other items or words not so specified or enumerated are, by implication, excluded. JKB, Sr....
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