Sightes v. Barker

• Citation: 684 N.E.2d 224
• Decision Date: 15 August 1997
• Docket Number: No. 46A05-9702-JV-52,46A05-9702-JV-52
• Parties: Sara Ann SIGHTES and William Sightes, Appellants-Respondents, v. Judith BARKER, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 224

684 N.E.2d 224

Sara Ann SIGHTES and William Sightes, Appellants-Respondents, v. Judith BARKER, Appellee-Petitioner.

No. 46A05-9702-JV-52.

Court of Appeals of Indiana.

Aug. 15, 1997.

Transfer Denied Nov. 5, 1997.

Scott H. Duerring, Michigan City, for Appellants-Respondents.

W. Jonathan Forker, LaPorte, for Appellee-Petitioner.

Jeffrey A. Modisett, Attorney General, Jon Laramore, Chief Counsel, Appeals Division, Indianapolis, for Amicus Curiae.

OPINION

SHARPNACK, Chief Judge.

Sara and William Sightes appeal the trial court's denial of their motions to dismiss the grandparent visitation petition relating to their son, J.S. The Sightes raise two issues on review, which we restate as:

1) whether the trial court erroneously denied their first motion to dismiss for lack of subject matter jurisdiction; and

2) whether trial court erroneously denied their second motion to dismiss alleging that the Grandparent Visitation Act (the "Act") is unconstitutional.

We affirm. ¹

The facts most favorable to the judgment follow. On April 21, 1989, Sara, who was seventeen years old, gave birth to J.S. Michael Runkel is J.S.' father. Although Michael and Sara never married, paternity was established in 1990. After J.S. was born, Sara lived with her parents and attended college.

On August 12, 1991, Judith Barker, who is Michael's mother, filed a petition to establish grandparent visitation. Although Sara initially objected to the petition, she later entered into a stipulation granting Judith visitation.

Sara subsequently married William Sightes, who adopted J.S. on May 20, 1994. On the same day, Judith filed a rule to show cause alleging that Sara had refused to comply with court orders concerning visitation. On August 12, 1994, Sara and Judith entered into a stipulation to resolve the rule to show cause. On August 19, 1994, Sara filed a petition to terminate Judith's visitation. Judith filed another rule to show cause against Sara on November 30, 1994.

After conducting hearings on the rules to show cause and the petitions, the trial court denied Sara's petition to terminate visitation and found her in contempt of court for denying Judith visitation with J.S. from July of 1994 to September of 1995. In addition, the trial court entered a monetary judgment against Sara in the sum of $2,620.80.

On July 5, 1996, Sara and William filed a motion to dismiss for lack of subject matter jurisdiction. On August 7, 1996, Sara and William filed another motion to dismiss based upon constitutional grounds. The trial court denied their motion to dismiss for lack of subject matter jurisdiction on August 8, 1996. Thereafter, Sara and William filed a motion to correct errors. On October 15, 1996, the trial court entered an order denying the motion to correct errors and the motion to dismiss based upon constitutional grounds. Sara and William now appeal the denial of their motions to dismiss.

The first issue for our review is whether the trial court erroneously denied the motion to dismiss for lack of subject matter jurisdiction. The trial court's order provides in part:

"3. The motion is without substantive merit for the reason that it rests on the erroneous proposition that William sights [sic] is not a "stepparent" as that term was utilized by the legislature in Indiana Code 31-1-11.7-2(c)(1);

4. Assuming, arguendo, that William Sights [sic] is not a "stepparent" for purposes of Indiana [C]ode 31-1-11.7-2(c)(1), that conclusion would operate to defeat this court's jurisdiction over the particular case--as opposed to its subject matter jurisdiction; it follows in turn that Sara and William Sights [sic] waived their right to object to this court's continued exercise of jurisdiction over this case when they failed to raise this issue at the earliest opportunity subsequent to the date of adoption by William Sights [sic]: May 20, 1994; here, Sara and William Sights [sic] actively and extensively litigated visitation issues throughout 1995, including a lengthy hearing in which the affirmative relief of the termination of Judith Barker's visitation rights was sought on substantive 'best interests' grounds and denied by this court."

Record, pp. 143-144 (original emphasis).

Grandparental visitation rights are conferred by statute in Indiana pursuant to the Act. Ind.Code § 31-1-11.7-1 et seq. This Act permits parties to seek visitation with their grandchildren as follows:

"(a) A child's grandparent may seek visitation rights if:

(1) the child's parent is deceased;

(2) the marriage of the child's parents has been dissolved in Indiana; or

(3) the child was born out of wedlock.

However, a court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subdivision (3) if the child's father has not established paternity in relation to the child.

* * * * * *

(c) Visitation rights provided for in subsection (a) or (b), survive the adoption of the child by any of the following:

(1) A stepparent.

(2) A person who is biologically related to the child as a grandparent, sibling, aunt, uncle, niece, or nephew."

I.C. § 31-1-11.7-2(a), (c). The only circumstances in which a grandparent may seek visitation rights are those enumerated in the Act. Lockhart v. Lockhart, 603 N.E.2d 864, 867 (Ind.Ct.App.1992). Pursuant to the Act, a grandparent who is seeking visitation of a grandchild born out of wedlock must file the petition in a circuit or superior court of the county in which the child resides. I.C. § 31- 1-11.7-6. Visitation rights may be granted when the court determines that it is in the best interest of the child. I.C. § 31-1-11.7-3(a). In determining the best interest of the child, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. I.C. § 31-1-11.7-3(b). The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child. I.C. § 31-1-11.7-8.

There is no dispute that at the time Judith filed her petition, she was a "grandparent" within the meaning of the Act and that her petition was properly filed in the LaPorte Circuit Court. Judith is the grandparent of J.S., who is a child born out of wedlock and who resides in LaPorte County. However, the Sightes argue that because William subsequently adopted J.S., Judith's right to visitation was extinguished and the trial court lost jurisdiction over the case. The Sightes contend that William is not a "stepparent" within the meaning of the statute and, as a result, Judith's visitation rights did not survive the adoption of J.S. We disagree.

The legislature stated its clear intention that grandparents' visitation rights survive adoption of the child by a stepparent when it amended the Act. See I.C. § 31-1-11.7-2(c)(1). However, the Sightes contend that William is not a "stepparent" within the meaning of the statute because Sara was not married to Michael at the time of J.S.' birth. In other words, the Sightes allege that a "stepparent" exists only when the parent was previously married at the time of the child's birth. The Sightes would have us hold that where a child who was born out of wedlock is adopted by a new spouse of the child's parent, grandparental visitation rights do not survive. We find no evidence of such a selective intention to restrict the definition of "stepparent" in the statute.

We will not interpret a statute which is clear and unambiguous on its face. Moses v. Cober, 641 N.E.2d 668, 670 (Ind.Ct.App.1994). We must examine and treat it as a whole, giving the statute its apparent and obvious meaning. Id. When construing a statute, we will presume the legislature intended the language of the statute to be applied in a logical manner, consistent with its underlying goals and policy. Collins v. Thakkar, 552 N.E.2d 507, 510 (Ind.Ct.App.1990), trans. denied. The legislature is presumed to have had in mind the history of the statute and the decisions of the courts upon the subject matter of the legislation being construed. Indiana State Bd. of Health v. Journal-Gazette Co., 608 N.E.2d 989, 992 (Ind.Ct.App.1993) adopted by 619 N.E.2d 273. Our role on appeal is to interpret and apply the statute, and absent some ambiguity, we may not substitute language which is not there. In re A.B., 582 N.E.2d 913, 915 (Ind.Ct.App.1991).

In 1985, the legislature amended the Act to permit a grandparent's right to visitation to survive the adoption by a stepparent. Pub.L. No. 281-1985. In view of the specific changes in the Act, the legislature contemplated the situation where a parent marries and has the spouse adopt the child by specifically providing that visitation rights survive such an adoption. The legislature's amendment, however, does not support the inference that visitation rights only survive where the stepparent adopts a child who was born of a previous marriage. The amendment to the Act merely confers standing upon grandparents who wish to exercise visitation but whose grandchildren have been adopted by the new spouse of the parent. Stated differently, the fact that a child is adopted by a stepparent no longer serves as an automatic bar against grandparents who wish to exercise visitation.

Nothing in the Act suggests that grandparents who seek visitation of a child born out of wedlock who was later adopted by a stepparent would lose their rights merely because the child was not born of a previous marriage. The legislature did not distinguish between a "stepparent" who adopts a child born of a previous marriage and a "stepparent" who adopts a child born out of wedlock. The legislature did, however, clearly distinguish between adoptions where one of the natural parents is still a custodian and those where the child is placed with people wholly unrelated to the child. In Bailey v. Menzie, we recognized the shift in Indiana law toward a less drastic treatment of adoption:

"The Legislature has obviously chosen to alter...