Monschein v. LaLonde

• Citation: 701 N.E.2d 1275
• Decision Date: 30 November 1998
• Docket Number: No. 49A05-9803-CV-171,49A05-9803-CV-171
• Parties: Michael F. MONSCHEIN, Appellant-Respondent, v. Letha Harter LaLONDE, Appellee-Petitioner.
• Court: Court of Appeals of Indiana

Page 1275

701 N.E.2d 1275

Michael F. MONSCHEIN, Appellant-Respondent, v. Letha Harter LaLONDE, Appellee-Petitioner.

No. 49A05-9803-CV-171.

Court of Appeals of Indiana.

Nov. 30, 1998.

David A. Clase, Harper & Clase, Indianapolis, for Appellant-Respondent.

Michael J. Donahoe, Epstein & Frisch, Indianapolis, for Appellee-Petitioner.

SHARPNACK, Chief Judge.

Michael Monschein ("Father") appeals the judgment of the trial court granting visitation of his daughters to the children's grandmother, Letha LaLonde ("Grandmother"). Father raises three issues, which we restate as follows:

1) whether the grandparent visitation statute is unconstitutional on its face or as applied in this case;

2) whether Father is a "stepparent" under the grandparent visitation statute such that the trial court had jurisdiction over the case; and

3) whether the trial court's findings support its judgment granting visitation to Grandmother.

We affirm.

The facts relevant to this appeal follow. In 1990, Shar Harter ("Mother") met Father. At the time she met Father, she was already pregnant with C.M., who was subsequently born in March of 1991. On November 1, 1991, Mother and Father married. In November of 1992, Mother gave birth to L.M., who was the natural daughter of Father.

On February 27, 1994, Mother died from injuries sustained in a car accident. On March 10, 1994, a Colorado court granted permanent custody of both children to Father, despite Grandmother's opposition. Following this custody order, Grandmother made several, ultimately unsuccessful, attempts to gain custody in both Louisiana and Indiana courts.

On September 12, 1996, Father adopted C.M. On September 13, 1996, Grandmother filed a petition for visitation in Marion County. Following hearings on the petition, the trial court granted Grandmother visitation. Thereafter, Father filed a motion to correct error, a motion to dismiss due to lack of subject matter jurisdiction, and a motion for order of stay pending ruling on motion to correct error. The trial court denied these motions as well as a motion by Grandmother to clarify the visitation order. Additional facts will be provided as needed for discussion.

I.

First, we address Father's assertion that the grandparent visitation statute is unconstitutional both on its face and as applied under the circumstances of this case. However, Grandmother contends that Father has waived appellate review of this issue by failing to properly raise it below.

A party may only obtain judicial review of issues that were properly raised to the trial court. Franklin Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind.1990). This general rule also applies to the constitutionality of a statute. See Alwood v. Davis, 411 N.E.2d 759, 761 (Ind.Ct.App.1980) (holding that the constitutionality of the statute limiting malpractice actions, as applied to a particular class of patients, could not be challenged on appeal because it was not raised nor argued at the trial level).

In responding to Grandmother's assertion that he has waived this argument, Father directs us to portions of the record where he alleges that he raised this issue. However, these portions of the record reveal only a dialogue between Father and his attorney about what decisions he makes for his children. The only statements that even hint at a constitutional argument are the following:

"Q. Are you asking the Court essentially then, to recognize your authority as a parent in this regard and to essentially ... if anything, if nothing else to give you the benefit of the doubt, given the evidence we're [sic] heard about what's happened the last 3 years in making this call?

A. I think I deserve that right. Everybody, you know, everybody has a chance to raise their kids and that's what I'm asking for, a chance to raise my kids."

Record, p. 986.

To preserve a constitutional argument for appeal, the party must at least cite to the portion of the constitution allegedly offended. Saloom v. Holder, 158 Ind.App. 177, 183, 304 N.E.2d 217, 221 (1973) (holding that "[t]hrough the years Indiana courts have consistently held that a constitutional question is not properly raised on appeal if the trial court was not apprised of specific constitutional provisions upon which a party relies in asserting that legislation is unconstitutional."), reh'g denied. Here, Father not only failed to notify the trial court of the relevant constitutional provision, but failed to even use the word "constitutional." Therefore, we conclude that Father failed to properly raise these constitutional questions to the trial court and, as a result, has waived our review of this issue. See Franklin, 563 N.E.2d at 553.

II.

Father next contends that he is not a "stepparent" under former Ind.Code § 31-1-11.7-2 ¹ and, therefore, the trial court was without authority to grant visitation to Grandmother. Specifically, he contends that the definition of stepparent is "the mother or father of a child born during a previous marriage of the other parent and hence, not the natural parent of such child." Appellant's brief, p. 34 (citing BLACK'S LAW DICTIONARY 1414 (6th ed. 1990)). Under this definition, he argues that he is not a stepparent for two reasons. He first maintains that because Mother was never married to C.M.'s father, C.M. was not "born during a previous marriage." Id. Second, he contends that even if he was a stepparent while Mother was alive, he was no longer a stepparent after her death but instead merely a widower.

Before we reach the merits of his argument, we must address Grandmother's contention that Father has waived this challenge because he failed to raise it to the trial court. See Franklin, 563 N.E.2d at 553. Father responds to the issue of waiver by asserting that this issue involves the trial court's subject matter jurisdiction, which is not subject to waiver. See Wildwood Park Community Ass'n v. Fort Wayne City Plan Comm'n, 182 Ind.App. 578, 396 N.E.2d 678, 681 (Ind.Ct.App.1979). However, we conclude that Father has confused the power of the trial court to determine whether or not he is a stepparent in this case with the trial court's power to determine any issue or case under the statute. The determination of whether Father is a stepparent affects that trial court's statutory authority to grant visitation, not the trial court's power to determine the merits of cases falling within the class of grandparent visitation actions. See Farley v. Farley, 157 Ind.App. 385, 398, 300 N.E.2d 375, 383 (1973) (holding that "[the circuit court] has the power, i.e., subject matter jurisdiction, to act in the 'class of actions'--divorce actions--within which a particular case falls. The expiration of the time during which the court can amend a judgment does not deprive the court of its power to act in all divorce cases but only its power to act in the particular case."). As the issue of whether Father is a stepparent does not affect the subject matter jurisdiction of the trial court, we are inclined to waive his contention for failure to raise the issue below. See Wildwood, 396 N.E.2d at 681.

Waiver notwithstanding, we reject Father's hypertechnical definition of "stepparent." We first address Father's assertion that he is not a stepparent because C.M. was not born during a previous marriage. This limited definition has been specifically rejected in Sightes v. Barker, 684 N.E.2d 224, 228 (Ind.Ct.App.1997), trans. denied. In Sightes, we concluded that to define stepparent in such a narrow manner would result in a denial of the legislature's clear intent to preserve the relationship between a grandchild and grandparent after the death of the natural parent. Our reasoning in Sightes was as follows:

"[T]he strong policy for preserving the relationship between the grandparent and child after the marriage of the parent still exists regardless of whether the child was born out of wedlock or was born of a previous marriage. Consequently, there is no strong policy reason for interpreting the statute to mean that visitation survives the adoption by a 'stepparent' only where the child was born of a previous marriage. The result of that interpretation would be to punish a child by cutting off the child's visitation with a grandparent when the child's parent marries merely because the child was not born of a marriage."

Sightes, 684 N.E.2d at 228.

Despite this holding directly on point, Father states that Sightes is "not good law on the definition of 'stepparent.' " Appellant's brief, p. 33. For support of his definition, he cites to Thornburg v. American Strawboard Co., 141 Ind. 443, 40 N.E. 1062 (1895). However, Thornburg involved a statute authorizing a father to sue for wrongful death of a child. The supreme court held that because the statute used the term "father" rather than "stepfather," a stepfather, regardless of how the term was defined, could not maintain such an action. Id. at 446, 40 N.E. at 1063. Although the court did note that "strictly speaking, ... a man who marries the mother of a bastard child does not become the stepfather of such child," the definition of stepfather was not directly determinative to the court's holding in the case. Id. at 445, 40 N.E. at 1063. As such, we conclude that the statement was dicta and is not binding upon us. Furthermore, the supreme court also noted an alternative definition from Wharton's Law Dictionary defining a stepfather as "[t]he husband of one's mother who is not one's father." Id. at 446, 40 N.E. at 1063. Although Father cites Thornburg as supportive of his position that he is not a stepfather, on the contrary, Father would clearly qualify as a stepfather under this second definition recognized by Thornburg.

Finally, as Thornburg dealt with wrongful death actions, we do not find it to be instructive in the context of grandparent visitation. In conclusion, because this court has already specifically rejected Father's first limitation on the definition of...