Krieg v. Glassburn

• Decision Date: 05 May 1981
• Docket Number: 2-180A8,Nos. 2-180A9,s. 2-180A9
• Parties: George F. KRIEG and Thelma Louise Krieg, Appellants (Petitioners for Joinder Below), v. David L. GLASSBURN, Appellee (Defendant Below), and Linda Kay Glassburn, Nominal Appellee (Plaintiff Below). In the Matter of the Petition of Carol Marie GLASSBURN to Adopt David Troy Glassburn and Julie Ann Glassburn; George F. KRIEG and Thelma Louise Krieg, Appellants (Petitioners for Joinder Below), v. Carol Marie GLASSBURN, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 1015

419 N.E.2d 1015

George F. KRIEG and Thelma Louise Krieg, Appellants (Petitioners for Joinder Below), v. David L. GLASSBURN, Appellee (Defendant Below), and Linda Kay Glassburn, Nominal Appellee (Plaintiff Below).

In the Matter of the Petition of Carol Marie GLASSBURN to

Adopt David Troy Glassburn and Julie Ann Glassburn;

George F. KRIEG and Thelma Louise Krieg, Appellants (Petitioners for Joinder Below), v. Carol Marie GLASSBURN, Appellee (Respondent Below).

Nos. 2-180A9, 2-180A8.

Court of Appeals of Indiana, Second District.

May 5, 1981.

William C. Menges, Jr., Kokomo, for appellants in both cases.

Eleanor B. Stein, Bayliff, Harrigan, Cord & Maugans, P. C., Kokomo, for appellees David L. Glassburn and Carol Marie Glassburn.

SULLIVAN, Judge.

Appellants George and Thelma Krieg appeal the denial of their Petitions for Joinder. They contend in No. 2-180-A-9 that grandparents have rights sufficient to give them standing to intervene and join as parties to a custody proceeding supplemental to their daughter's divorce for the purpose of obtaining visitation with their minor grandchildren. In the adoption proceeding, No. 2-180-A-8, the Kriegs contend they should be allowed to intervene because their visitation rights, gained through the divorce action, would be adversely affected if the adoption is finalized. We reverse in part, affirm in part, and remand for further proceedings.

Linda and David Glassburn were married in 1964 and the marriage, which was dissolved in 1970, produced two children. Originally, custody was awarded to the mother, the Kriegs' daughter. In 1972, however, the order was modified to give custody to the father. Shortly thereafter, the court fixed visitation rights for the mother, including the following paragraph:

"That the maternal grandparents of the children, Mr. and Mrs. George F. Krieg, shall have the right to pick up the children from defendant's home for the benefit of the plaintiff on the above granted visitation days." ¹

On October 30, 1978, Carol Marie Glassburn, David Glassburn's second wife, filed a petition to adopt the children. The petition, consented to by David, alleged as grounds for terminating Linda's parental rights the lack of significant contact with the children for a period of more than one year and abandonment. Linda's whereabouts where unknown when the petition was filed and service was therefore effected by publication.

On December 15, 1978, the Kriegs filed their Petition for Joinder alleging that the court had previously granted them conditional visitation rights and that, due to a material change in circumstances, a grant of regular visitation rights would be in the children's best interest. In their Petition to Join the adoption proceedings the Kriegs alleged that: 1) granting the adoption would adversely affect their visitation rights; and 2) the proceeding constituted fraud because in a deposition, Carol admitted to a meeting in July 1978 between Linda and the children. The father then filed his Motion to Dismiss the Petition for Joinder in the custody proceeding stating that the Kriegs had no standing because they had no legal entitlement to visitation. A similar argument was made to the Kriegs' petition to join the adoption proceedings. After hearings on the issues, the court denied the Kriegs' petitions concluding that they did not have sufficient legal standing to intervene or join as parties. The adoption proceeding was stayed, however, pending the outcome of this appeal.

I. Finality and Appealability

Before considering the issues, we must determine whether the visitation case is properly before this court. The Kriegs' document was denominated "Petition for Joinder." Joinder pertains to those who may be parties to the action from the outset and those who may be brought into the suit by the original parties. See Ind.Rules of Procedure, Trial Rule 20. The character of a pleading or motion is determined by its substance rather than its caption. McQueen v. State (1979) Ind., 396 N.E.2d 903, 904. Therefore, the Kriegs' petition will be considered as a combined Motion to Intervene and Petition for Visitation. ² Trial Rule 24(C) states in pertinent part: "The court's determination upon a motion to intervene may be challenged only by appeal from the final judgment." Under the circumstances of the visitation case, the trial court's ruling was, as to the Kriegs, a final judgment. There was no underlying action in the usual sense. Normally, intervention is sought in a pending action that will result in a final judgment from which an appeal can be taken. In a dissolution of marriage, however, the trial court's jurisdiction and the cause itself is of a continuing nature throughout the minority of the children, Inkoff v. Inkoff (3d Dist. 1974) 159 Ind.App. 239, 241, 306 N.E.2d 132, 133, although after the decree of dissolution another judgment might never be rendered in the cause.

As the Indiana Supreme Court stated in Richards v. Crown Point Community School Corp. (1971) 256 Ind. 347, 350, 269 N.E.2d 5, 6-7 (original emphasis):

"An interlocutory order is one made before the final hearing on the merits. It requires something to be done or observed but does not determine the entire controversy.

... (I)t is the character of an order that determines its classification as final or interlocutory.

....

We need go no further to indicate that it is a putting to rest of an issue that renders it appealable as a final order."

Since the trial court's ruling had the effect of determining the entire controversy and clearly put an issue to rest, the denial of the Motion to Intervene in this instance was a final judgment from which an appeal could be taken.

Although the circumstances before us do not fit easily within the language of Trial Rule 24(A)(2), ³ the scope of the rule is sufficiently broad to permit the Kriegs to intervene as of right in the visitation action if grandparents may be entitled to visitation.

II. Visitation

David Glassburn contends that Indiana law extends visitation rights only to parents, citing I.C. 31-1-11.5-24 (Burns Code Ed.1980). ⁴ In interpreting a very similar statute, the Kentucky Supreme Court stated: "(The statute) does not prohibit the grant of visitation to nonparents .... It merely guarantees that a non-custodial natural parent will not be denied visitation privileges unless it would seriously endanger the child. Uniform Marriage and Divorce Act, Sec. 407, Commissioner's Note (1971)." Simpson v. Simpson, (Ky.1979) 586 S.W.2d 33, 35 (construing Ky.Rev.Stat. § 403.320 (Supp.1980)). The same result, that the statute does not necessarily exclude visitation rights of third parties, was reached in Collins v. Gilbreath (4th Dist. 1980) Ind.App., 403 N.E.2d 921.

In Collins, the three children involved lived with their mother and stepfather from the time of their marriage in August 1975 until the mother's death in September 1977. Thereafter, the court awarded custody to the natural father, but granted visitation rights to the stepfather. In affirming the trial court's judgment, the court stated:

"In so holding we do not intend to diminish the rights of a natural parent concerning his or her minor children. Nor do we intend to open the door and permit the granting of visitation rights to a myriad of unrelated third persons, including grandparents, who happen to feel affection for a child. Our decision is explicitly limited to the type of factual situation presented by this case, i. e., where the party seeking visitation has acted in a custodial, and parental capacity." 403 N.E.2d at 923-24 (footnote omitted).

The record indicates that the Glassburn children were in the physical custody of the Kriegs for several weeks in 1972. Thus, in the purely technical sense, the instant case is within the purview of Collins. We believe, however, that the Kriegs' physical custody was for too brief a period and was too remote in time to have conferred upon them a right to visitation. While we agree with the result in Collins, it is our view that a different standard should be formulated.

Most jurisdictions which permit third person visitation do so under statutory authority. E. g., Conn.Gen.Stat.Ann. § 46b-59 (West Supp.1980); Fla.Stat.Ann. § 61.13(2)(b) (West Supp.1980); Iowa Code Ann. § 598.35 (West Supp.1980); Mo.Ann.Stat. § 452.400 (Vernon Supp.1980); N.Y.Dom.Rel.Law § 240 (McKinney Supp.1980); Wash.Rev.Code Ann. § 26.09.240 (West Supp.1980); Wis.Stat.Ann. § 767.245(4) (West Special Pamphlet 1980). Nevertheless, courts in Kentucky, Illinois, and Pennsylvania, as well as Indiana in Collins have permitted third person visitation without specific statutory authority.

In Simpson v. Simpson, supra, 586 S.W.2d 33, the case was remanded to the Kentucky trial court for a hearing to determine whether visitation with the stepmother would be in the child's best interest. The stepmother had cared for the child for nearly six years.

In Chodzko v. Chodzko (1976) 66 Ill.2d 28, 4 Ill.Dec. 313, 360 N.E.2d 60, the court held that visitation could be granted to grandparents upon a showing of special circumstances justifying such visitation. In that case no special circumstances were alleged.

In Commonwealth ex rel. Williams v. Miller (1978) 254 Pa.Super. 227, 385 A.2d 992 the maternal grandmother sought visitation. After her parents' divorce, the child lived with her mother and great aunt. She remained with the great aunt when her mother remarried, but her father obtained custody after the mother's death. The great aunt was granted visitation at that time. When the great aunt became too ill to visit the child, the grandmother filed her petition which was denied for various reasons.

The well-reasoned opinion merits extensive quotation.

"(I)n a dispute between a parent and a third party, including a relative such as a grandparent, the parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the...