Lipginski v. Lipginski, 4-884A234
| Decision Date | 23 April 1985 |
| Docket Number | No. 4-884A234,4-884A234 |
| Citation | 476 N.E.2d 924 |
| Parties | Debra LIPGINSKI (now Hopkins) Appellant, v. Albert & Norma LIPGINSKI, Appellees. |
| Court | Indiana Appellate Court |
Cecile A. Blau, Mary Ann Guenther, Fifer, Vogt & Lanum, Jeffersonville, for appellant.
On January 4, 1984, Albert and Norma Lipginski filed a petition to establish visitation rights of grandparents pursuant to IND.CODE 31-1-11.7-1 et seq. The petition was filed to establish visitation with minor children Angela Dee Hopkins and Jason Earl Hopkins. These children were in the custody of their natural mother Debra Hopkins, the former wife of petitioners' son, William L. Lipginski. Debra had remarried and her present husband, William J. Hopkins, had adopted the children on May 16, 1978 with consent of the natural father.
Debra Hopkins filed a Motion to Dismiss the petition which was denied. After a hearing on the merits, the trial court entered the following judgment on April 26, 1984:
"The Court now finds that it is in the best interest of the Children, Angela D. Hopkins and Jason Hopkins, that the grandparents' Petition for Visitation Rights should be and is now granted; further, that such grandparents shall have visitation as follows: the first weekend of each month beginning with the month of May, commencing at 10:00 a.m. Saturday through 6:00 p.m. Sunday and all other times mutually agreeable with both parties, with a review of this decision to be held in one year as to whether or not visitation should be continued expanded or terminated with the Court looking to evidence as to the effect of the grandparents' visitation, whether beneficial or detrimental to the children, as there was no expert testimony or evidence presented at the hearing in the instant that visitation would have a detrimental affect on the children, but only contradictory testimony from each of the parties as to their personal viewpoint."
Debra Hopkins filed a motion to correct errors which was denied as premature and this appeal followed. 1
The dispositive issues of this appeal are as follows:
1. Whether the trial court erred as a matter of law in concluding that the motion to correct errors filed by Debra Lipginski should be denied because it was premature?
2. Whether the petitioners, Norma and Albert Lipginski are within the class of those who have the right to file a petition for grandparents' visitation rights under IND.CODE 31-1-11.7-1?
Except as to interlocutory orders, appeals may only be taken from final judgments. James v. Board of Commissioners of Hendricks County (1979), 182 Ind.App. 697, 396 N.E.2d 429. Generally, a final judgment is one which disposes of all of the issues as to all the parties and puts an end to the matter in question. Thompson v. Thompson (1972), 259 Ind. 266, 286 N.E.2d 657.
In this case the trial court declared in its order that it "now finds ... that the grandparent's petition for visitation rights should be and is now granted." The trial court's order then sets forth the details of visitation, adding that a "review" of the decision is to be "held in one year as to whether or not visitation should be continued, expanded, or terminated...."
In their response to Debra Hopkins's Motion to Correct Errors, the Lipginskis argued the review provision precludes the court's order from being a final order and Debra's Motion to Correct Errors was filed prematurely. The trial judge apparently agreed as he denied her motion to correct errors by simply stating that it was "premature," without stating further reason.
We disagree. Notwithstanding the provision for a review in one year, we find this to be a final disposition of the subject matter of the litigation before the court. The order effectively denied Debra Hopkins of any means of further defending her rights in the action. The review provision did not continue the cause or otherwise delay a final order, thus preventing an appeal. All grandparent visitation orders are subject to modification at any time it would be in the best interests of the child. IND.CODE 31-1-11.7-8. This is analogous to child custody cases where the court has jurisdiction throughout the minority of the children to modify the custody order in the best interest of the child. Krieg v. Glassburn (1981), Ind.App., 419 N.E.2d 1015. If a provision for review were to prevent such orders from becoming final, there would be no appeals from such decisions. We must conclude that any statement by the trial judge as to future review of grandparent visitation rights is mere surplusage already authorized by statute. Consequently, we find the trial court's order of April 26, 1984 to be a final order from which Debra Hopkins may appeal. The trial court erred in holding her motion to correct errors was filed prematurely.
We next address Debra Hopkins' contention that the Lipginskis did not have the right to file a petition for visitation rights under the grandparent visitation act. I.C. 31-1-11.7-1 et seq. 2 This statute creates certain grandparental visitation rights with respect to grandchildren in the custody of one parent. The relevant portion of the statute, IND.CODE 31-1-11.7-2(b), reads as follows:
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