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03/02/88 DAVID TINSLEY v. RICHARD AND KATHY PLUMMER

Filed: March 2, 1988.

DAVID TINSLEY, SR., APPELLANT (RESPONDENT BELOW),
v.
RICHARD AND KATHY PLUMMER, APPELLEES (PETITIONERS BELOW).



Appeal from the Marion County Superior Court, The Honorable James W. Payne, Judge, Cause No. PT79-1726

Shields, P.j., Robertson, J., Concurs. Buchanan, J., Concurs.

Author: Shields

SHIELDS, P.J.

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, Shirleen 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, Shirleen 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, Nancy 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 Nancy 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 ...


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