Tinsley v. Plummer

• Court: Indiana Appellate Court
• Writing for the Court: SHIELDS
• Citation: Tinsley v. Plummer, 519 N.E.2d 752 (Ind. App. 1988)
• Decision Date: 02 March 1988
• Docket Number: No. 49A02-8607-JV-265,49A02-8607-JV-265
• Parties: David TINSLEY, Sr., Appellant (Respondent Below), v. Richard and Kathy PLUMMER, Appellees (Petitioners Below).

Page 752

519 N.E.2d 752

56 USLW 2571

David TINSLEY, Sr., Appellant (Respondent Below), v. Richard and Kathy PLUMMER, Appellees (Petitioners Below).

No. 49A02-8607-JV-265.

Court of Appeals of Indiana Second District.

March 2, 1988.

James F. Beatty, Landman & Beatty, Indianapolis, for appellant.

Daniel J. Coffey, Indianapolis, for appellees.

SHIELDS, Presiding Judge.

David Tinsley, Sr. appeals the judgment of the trial court awarding Richard and Kathy Plummer visitation rights with his son, David Tinsley, Jr. and denying him attorney fees.

We reverse in part and affirm in part.

ISSUE

The issues on appeal are:

1. Do the Plummers have a legally cognizable right to seek visitation with David;

2. If so, did the trial court abuse its discretion in awarding the Plummers visitation rights; and

3. Did the trial court err in denying Tinsley his attorney fees and costs?

FACTS

David Tinsley, Jr. (David) was born to Lori Ann Hicks in September of 1979. David Tinsley, Sr., (Tinsley) was declared the father of David in an uncontested paternity action on February 12, 1980. On August 2, 1984, Lori Hicks died. A custody dispute ensued between Tinsley, and David's maternal relatives, Sherline Schwindler, Lori Hicks' mother, and Richard and Kathy Plummer, Lori Hicks' aunt and uncle. Upon request, Schwindler and the Plummers were granted leave to intervene in the original paternity action and, on August 9, 1984, petitioned the court for custody of David or, in the alternative, visitation. The Plummers were awarded temporary custody of David on September 17, 1984, pending the final hearing. On December 17, 1984, after trial, Tinsley was awarded custody of his son. A visitation order was not issued "because the parties indicated visitation could be resolved." Record at 115.

On February 2, 1985, Sherline Schwindler died and thereafter Tinsley did not allow David to visit with the Plummers. On May 8, 1985, the Plummers, together with another of Lori Hicks' aunts, Nancie Louise Hicks, petitioned for a hearing to set visitation. Tinsley responded with a Joint Motion to Dismiss and for Summary Judgment. The motion was subsequently denied as was Nancie Hicks' Motion to Intervene. After a hearing, the trial court granted the Plummers visitation for two weeks each summer in their Georgia home. In addition, the judgment provides "the family of Lori Ann Hicks shall be allowed to visit on a quarterly basis with David Tinsley, Jr. [on a week-end] as may be requested by [the Plummers]...." Record at 121. The court ordered each party to pay their respective attorney fees and costs.

DISCUSSION

Visitation rights for non-custodial parents have long been the subject of legislation. However, the courts, rather than the legislature, recognized rights of visitation in third parties. Thus, Collins v. Gilbreath (1980), Ind.App., 403 N.E.2d 921, held a step-father who had "acted in a custodial and parental capacity" had a cognizable right to seek visitation with his step-child. Id. at 924. In Krieg v. Glassburn (1981), Ind.App., 419 N.E.2d 1015, this court held grandparents, too, had a cognizable right to seek visitation with their grandchild.

Subsequently, the legislature addressed the visitation rights of grandparents by enacting I.C. 31-1-11.7-2 (Acts 1981, P.L. 265, Sec. 1), effective September 1, 1981. As originally enacted, the statute authorized a grandparent whose child was deceased or whose marriage had been dissolved to seek visitation with that child's offspring. In 1983, the statute was amended, allowing a grandparent to seek visitation only when the child's marriage was dissolved in Indiana or, if the marriage was dissolved in another state, only when the custody decree is not binding on the grandparents and Indiana has jurisdiction. Acts 1983, P.L. 285, Sec. 1. The next amendment occurred in 1985 and provided that the right of a grandparent to seek visitation survives adoption of the grandchild by a stepparent. Acts 1985, P.L. 281, Sec. 1. The amendment which occurred in 1987 provides that IC 31-1-11.7-2, as amended, applies to visitation rights granted to grandparents before September 1, 1985. Acts 1987, P.L. 293, Sec. 7.

Once the legislature enacted the grandparent's visitation statute, the courts enforced the statutory limitations. Thus, In re J.O. (1982), Ind.App., 441 N.E.2d 991, this court held the grandparent of a child not born of a marriage and whose parents are living, is not entitled to seek visitation with the grandchild. Similarly, in Matter of Meek (1983), Ind.App., 443 N.E.2d 890, this court held a maternal grandmother was not entitled to court ordered visitation with her granddaughter because the grandchild's parents were alive and their marriage intact.

Legislative reaction to judicial decisions enforcing the statute was prompt. The 1985 amendment providing visitation rights survive adoption by a stepparent ensued following the decision in In re Visitation of Menzie (1984), Ind.App., 469 N.E.2d 1225, appeal after remand (1987) 505 N.E.2d 126. There, the court held adoption of the grandchild by a stepparent terminated grandparental visitation rights previously granted.

This history leads to Tinsley's argument. Relying on the principle of expressio unius est exclusio alterius, Tinsley asserts that because the Legislature has expressly granted visitation rights only to grandparents, and to non-custodial parents, it has, in effect, denied such rights to all others. The Plummers argue Collins and Krieg give parties who are not parents or grandparents the right to seek visitation when visitation is in the best interest of the child.

Both parties are partially correct. Tinsley correctly observes that our decisions hold the enactment of the grandparental visitation statute provides the only circumstances in which a grandparent may seek visitation rights with a grandchild. However, the conclusion we draw from the legislative action differs from that reached by Tinsley. We deem it significant that following Collins, which involved a stepparent, the legislature afforded grandparents...