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L-A.D.W R.W. v. M.D.

Court of Appeals of Indiana

January 13, 2015

IN RE THE VISITATION OF L-A.D.W R.W., Appellant-Respondent,
v.
M.D. AND W.D., Appellees-Petitioners

Page 501

APPEAL FROM THE VANDERBURGH SUPERIOR COURT. The Honorable Mary Margaret Lloyd, Judge. Cause No. 82D04-1305-DR-465.

ATTORNEYS FOR APPELLANT: LAURIE BAIDEN BUMB, Bumb & Vowels, LLP, Evansville, Indiana; THOMAS A. MASSEY, Massey Law Offices, Evansville, Indiana.

ATTORNEYS FOR APPELLEE: KEITH W. VONDERAHE, MOLLY E. BRILES, Ziemer Stayman Weitzel & Shoulders LLP, Evansville, Indiana.

PYLE, Judge. NAJAM, J., and BAILEY, J., concur.

Page 502

OPINION

PYLE, Judge

STATEMENT OF THE CASE

Appellant/Respondent, R.W. (" Father" ), appeals the trial court's order granting Appellees/Petitioners, M.D. (" Grandmother" ) and W.D. (" Grandfather" ) (collectively, " Grandparents" ), grandparent visitation with his minor daughter, L.W. Grandparents are the parents of L.W.'s mother (" Mother" ). They acted as caregivers for L.W. during significant periods of her life and petitioned for grandparent visitation after Mother died from cancer. The trial court found that, although Father was a fit parent, Grandparents had rebutted the legal presumption that his decisions about Grandparents' visitation were in L.W.'s best interests because there was evidence that he intended to deny grandparent visitation absent a court order. As a result, the trial court awarded Grandparents scheduled visitation.

On appeal, Father argues that the trial court erred in granting Grandparents visitation because (1) it did not give his decisions regarding visitation special weight; (2) it misrepresented the amount of visitation he had allowed Grandparents; and (3) Grandparents did not rebut the presumption that his decisions concerning L.W.'s interests were in her best interests. Alternately, he argues that the amount of visitation the trial court awarded Grandparents exceeds that contemplated by the Grandparent Visitation Act. Because the trial court did give Father's decisions regarding visitation special weight, did not misrepresent the amount of visitation Father had allowed and intended to allow Grandparents, and did not err in concluding that Grandparents had rebutted the presumption in favor of a fit parent's decisions regarding grandparent visitation, we conclude that the trial court did not err in

Page 503

granting Grandparents visitation. However, we agree that the trial court abused its discretion in the amount of visitation it awarded Grandparents, and we remand to the trial court to amend the amount of visitation awarded.

We affirm in part, reverse in part, and remand.

ISSUES

1. Whether the trial court erred in granting Grandparents visitation with L.W.
2. Whether the trial court abused its discretion in the amount of visitation it granted Grandparents.

FACTS

Mother and Father (collectively, " the Parents" ) married in 2002. They had one child together, L.W., who was born in January 2005 in North Carolina. Mother is the only child of her parents, Grandparents, and L.W. is Grandparents' only grandchild. After L.W.'s birth, Grandparents lived with the Parents so that they could take care of L.W. while Mother continued her work as a pediatric dentist and Father completed his medical school residency. During this time, Grandparents did " everything you do for a newborn baby." (Tr. 237).

When L.W. was a year old, the Parents moved to Evansville, Indiana, an hour away from Grandparents' home in Madisonville, Kentucky.[1] Mother opened a new pediatric dentistry practice in Evansville and shortened her hours so that she worked only two to four days a week. Grandparents continued to care for L.W. during the days that Mother was at work. When L.W. became old enough to attend pre-school, Grandparents would fix her breakfast, get her dressed, and take her to school. Throughout L.W.'s early childhood, Mother and Grandparents served as L.W.'s primary caretakers.

In late July 2010, when L.W. was five years old, Mother was diagnosed with stage four colon cancer. Mother asked Grandparents to move in with the Parents again to care for her and L.W., which Grandparents did. Typically, Grandmother would fix L.W.'s breakfast and get her ready for school; take L.W. to school and pick her up after school, sometimes with Mother, if Mother was feeling well; read to L.W. at night; do the family's laundry and chores; and cook for the family. Mother received multiple treatments from 2010 to 2013, some of which were out of town. Every time Mother went out of town for treatments, Grandparents and L.W. went with her. If L.W. missed school, her teachers would send her assignments, and Grandmother, a retired teacher, would ensure that she completed her homework.

In early 2013, Mother filed for a dissolution of marriage from Father. On March 1, 2013, the trial court held a provisional hearing to determine temporary custody arrangements. At the hearing, Mother testified that Father was an " absent" and " non[-]participatory" parent. (Tr. 16, 45). She claimed that, although this was partly due to his heavy work schedule, it was also due to his extracurricular activities, such as cycling, flying his airplane, going to the gym, and playing video games. She stated that Father's time with L.W. was " minimal" and that there were days when he never saw L.W. (Tr. 47).

Page 504

Father testified and admitted that he was not always able to attend L.W.'s extracurricular activities as a result of work. He also mentioned that the marital situation between himself and Mother " ha[d] [not] been excellent for a long time" and that it was " always [his] feeling that having her parents living with [them] [was] not a positive situation." (Tr. 66). At the conclusion of the hearing, the trial court granted the Parents temporary, joint legal custody and Mother temporary, primary physical custody pending the resolution of the dissolution proceedings.

Shortly thereafter, Mother's health worsened, and she asked Grandparents to petition for grandparent visitation with L.W. if she died. She also included a provision in her will stating that:

My estranged husband, [Father], is recognized by law as the natural guardian of our daughter, [L.W.]. As [Father] has had no significant relationship to date with our daughter, [L.W.], I would direct that my parents, [Grandparents], seek generous visitation rights with [L.W.], and that, in the event my estranged husband is deemed unfit, or fails to demonstrate a willingness to appropriately parent our child, [L.W.], or in the event that the appointment of a guardian for [L.W.] . . . becomes necessary or convenient, I nominate and appoint my parents, [Grandparents], or either of them individually, to serve as guardians.

(Father's Ex. 9 at 8).

On April 9, 2013, Mother's attorney, Keith Vonderahe (" Vonderahe" ), contacted Father's attorney and told him that Grandparents planned to file a petition for visitation. Vonderahe also told Father that Grandparents would be willing to forego a legal petition if Father would agree to visitation without a court order. However, Father did not respond to the e-mail. Subsequently, Mother died on April 17, 2013, while the dissolution proceedings were still pending. The day that she died, Grandparents filed a petition requesting grandparent visitation with L.W.[2]

A few days prior to Mother's death, Father contacted a mental health counselor named Laura Ellsworth (" Ellsworth" ) to help L.W. deal with her grief and transition to his custody. Based on Ellsworth's advice, Father arranged for L.W. to meet with another therapist, Lisa Provost (" Provost" ), for counseling. L.W. met with Provost approximately every three to four weeks thereafter.

Father also asked Ellsworth to determine L.W.'s best interests in terms of grandparent visitation. Before the end of April, Ellsworth met with Father and L.W. two times in her office and once in their home. She also met with Grandparents once in her office. From the first time she saw L.W. and Father together, she observed that " [L.W.] like[d] to sit in her father's lap and poke on her father's face[,] and she like[d] to challenge him and tease him." (Tr. 145). Ellsworth thought their attachment " appeared strong from the very beginning." (Tr. 197-98). However, she also found that L.W. had a " strong bond" with Grandparents and felt that it was " important for them to continue to maintain a relationship." (Father's Ex. 3 at 2). She perceived that there was " some animosity from both sides" between Grandparents and Father because Father felt that Grandparents were not communicating with him and had withheld L.W. from him while Mother was sick, and because

Page 505

Grandparents were concerned that Father did not have a strong parental bond with L.W. (Tr. 133).

On April 30, 2013, Ellsworth recommended a temporary grandparent visitation schedule for Father and Grandparents to follow until L.W. returned to school the following Fall. The schedule provided for Grandparents to have visitation with L.W.: (1) on Tuesdays from 3:00 to 6:00 p.m. until the end of the school year; (2) one Saturday per month from 7:00 a.m. to 8:00 p.m.; and (3) for one five-day consecutive period during the summer. (App. 89). Ellsworth also encouraged Grandparents to attend L.W.'s swim meets and other spectator activities. She intended to treat the summer as an " evaluative" period so that she could further observe L.W.'s relationships with Father and Grandparents before issuing final recommendations to the trial court. (App. 89).

Father agreed to follow Ellsworth's recommendations and sent the proposed schedule to Grandparents' lawyer. In the months that followed, however, he did not allow Grandparents visitation on any of the Tuesdays before L.W.'s school year ended or on any Saturdays throughout the evaluative period. He did allow visitation for a five-day period in the summer, which, with Ellsworth's agreement, was divided into two visits because L.W. was suffering from separation anxiety at the thought of leaving Father for five days in a row. Father also took L.W. to meet Grandparents for lunch on Mother's Day, on a day in June, and on a day in September, and he allowed L.W. to spend one Sunday with Grandparents. Throughout the summer, Father allowed Grandparents to see L.W. at her sporting events, which Grandparents attended.

Because Grandparents attended L.W.'s sporting events, they got to know one of L.W.'s summer nannies, Jamie Riedford (" Riedford" ). One day when Grandparents were attending L.W.'s swim practice, they asked if Riedford and L.W. would like to go to lunch. Riedford called Father to ask permission. He gave his permission, so she and L.W. went to lunch with Grandparents. Later that night, Father asked Riedford to come over to his house, where he " asked [her] to keep [her] guard up and told [her] that [Grandparents] were [not] being nice to [her] for any reason other than to get to him and [in] effect, get information for [Grandparents'] court case." (Tr. 215). Riedford did not agree with Father, and he continued the conversation later that night for an hour over the phone. Father also had his lawyer write Grandparents' lawyer a ...


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