Cаrol MOSES, Appellant-Petitioner, v. Lezli A. COBER, Appellee-Respondent.
No. 29A02-9402-CV-98 1.
Court of Appeals of Indiana, First District.
Oct. 24, 1994.
670 N.E.2d 668
“To begin with, the trial court correctly granted Denkins’ motion to strike the verified statement offered by the Nelsons on December 4, 1991.
Ind. Trial Rule 56(C) provides that an adverse party has ‘thirty (30) days after servicе of the motion [for summary judgment] to serve a response and any opposing affidavits....’The Nelsons argue that they had thirty days after Denkins filed his reply memorandum. This is not in accordance with
T.R. 56(C) which specifically states that the response shall be filed within thirty days aftеr the motion for summary judgment is filed.”
Id. at 564 (emphasis supplied).
As in Nelson, Cloverleaf failed to file its brief, designation of evidence, and material issues of fact in a timely fashion required by
We also observe that Cloverleaf has failed to set forth any argument in its appellate brief as to what genuine issues of material fact existed and why the trial court made an erroneоus decision as a matter of law in granting summary judgment to Eaton. In O‘Donnell v. American Employers Ins. Co. (1993), Ind.App., 622 N.E.2d 570, trans. denied, this court determined that an appellant must persuade the reviewing court that the trial judge erroneously determined that no genuine issue of material fact existed, and that the trial cоurt erroneously determined that the moving party was entitled to judgment as a matter of law. This standard was succinctly set forth in Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431:
“On appeal a trial court‘s grant of summary judgment is ‘clothed with a presumption of validity’ [citation omitted]. The appellant bears the burdеn of proving that the trial court erred in determining that there are no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law.”
Even if the trial court should have considered Cloverleaf‘s brief filed in opposition to Eaton‘s motion, it was incumbent upon Cloverleaf to present argument in its appellate brief demonstrating why the trial court erred, what the material issues of fact were, and how the trial court erred in granting Eaton‘s motion. Id. Cloverleaf fails to present such argument, and we only consider the issues which are actually raised in the appellate brief. See National By-Products, Inc. v. Ladd (1990), Ind.App., 555 N.E.2d 518; see also
Cloverleaf‘s only argument on appeal is whether the trial court erred in refusing to consider its brief in opposition to Eaton‘s motion for summary judgment. Clovеrleaf has failed to demonstrate how it was harmed or prejudiced by the trial court‘s refusal to consider that brief. Cloverleaf has therefore waived any claim for relief, and we conclude that the trial court properly granted Eaton‘s motiоn for summary judgment.
Judgment affirmed.
KIRSCH and CHEZEM, JJ., concur.
David Glickfield, Jr., Glickfield, Glickfield & Glickfield, Marion, for appellant.
OPINION
BAKER, Judge.
Today we examine Indiana‘s Grandparent‘s Visitation Act to decide the requisites of standing to seek visitation rights and the proper focus a court should apply to determine the best interests of the grandchild. Appellant-petitioner Carol Moses appeals the dismissal of her petition for grandparent visitation alleging that the trial court erred in determining that visitation would not be in the best interests of her granddaughter. Lezli cross-appeals claiming that Carol does not have standing.
FACTS
Carol is thе natural maternal grandmother of Dani Nicole Pierson. Carol‘s daughter, Lezli Cober, gave birth to Dani Nicole on February 11, 1989. Lezli and Greg Pierson, Dani Nicole‘s natural father, were not married when Dani Nicole was born.
After her granddaughter‘s birth, Carol attempted tо maintain regular contact with her. However, due to constant strife between Carol and Lezli, Carol‘s attempts to see Dani Nicole on a regular basis failed. The record reveals that when Carol and Lezli were not fighting, Carol was allowed to have regular contact with Dani Nicole. Carol would baby-sit her granddaughter and often spend holidays with the family. However, if Carol and Lezli were having an argument, Lezli would withdraw Carol‘s visitation.
Lezli terminated Carol‘s visitation following a dispute between the two over whether Carol would buy Lezli a new home. Lezli complained that Carol should buy her a bigger home. Carol declined because she felt that Lezli was not capable of supporting her current residence. Thereafter, Lezli refused to allow Carol to seе Dani Nicole. Therefore, on June 25, 1993, after numerous attempts to see her granddaughter, Carol filed a petition for visitation with Dani Nicole. In response to Carol‘s petition, Lezli filed a motion to dismiss alleging that Carol lacked standing to seek visitation аnd, in the alternative, failed to present sufficient evidence to show that visitation would be in Dani Nicole‘s best interests. The trial court, in granting Lezli‘s motion to dismiss, held that Carol did have standing to pursue visitation but that she failed to show that visitation would be in Dani Nicole‘s best intеrests.
DISCUSSION AND DECISION
Carol challenges the trial court‘s denial of visitation rights. Lezli maintains that although the trial court erred in finding that Carol had standing, it correctly decided that visitation was not in Dani Nicole‘s best interests. Grandparent visitation rights are conferred by statute in Indiana рursuant to the Grandparent‘s Visitation Act (Act). See
A child‘s grandparent may seek visitation rights if:
- the child‘s parent is deceased;
- the marriage of the child‘s parents has been dissolved in Indiana; or
- the child was born out of wedlock.
I. Standing
Lezli contends that Carol lacks standing to seek visitation of Dani Nicole. Lezli first argues that the Act was not intended to permit a grandparent to seek court-ordered visitation when her child has custody and does not desire such visitation. Because this issue concerns a statute, we recognize the limits on our review. We will not interpret a statute which is clear and unambiguous on its face. See Indiana St. Bd. of Health v. Journal-Gazette Co. (1993), Ind.App., 608 N.E.2d 989, 992. Wе must examine and treat it as a whole, giving the statute its apparent and obvious meaning. Id. In 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. In re Groleau (1992), Ind.App., 585 N.E.2d 726, 728. Thе legislature is presumed to have had in mind the history of the act, and the decisions of the courts upon the subject-matter of the legislation being con-
(a) A court may not grant visitation under this chapter after May 8, 1989, to a grandparent who is the parent of a person:
- who is not deceased; and
- who has been awarded custody of the grandchild.
(b) A child‘s maternal grandparent may seek visitation rights, regardless of whether the paternity of the child has been established if:
- the child‘s mother is deceased;
- the marriage of the child‘s parents has been dissolved in Indiana; or
- the child was born out of wedlock.
The only circumstances in which a grandparent may seеk visitation rights are those enumerated in the Act. Lockhart v. Lockhart (1992), Ind.App., 603 N.E.2d 864, 867. Prior to the 1993 amendments, the statute clearly stated that grandparents may not obtain visitation against the wishes of a custodial parent. See id. However, in 1993, the legislature deleted subsection (a) and thus expаnded a grandparent‘s right to seek visitation with a grandchild.2 In view of the specific changes in the Act, the legislature clearly contemplated situations of dissension between the custodial parent and grandparent. The legislature‘s deletion of subseсtion (a) reflects its purpose to protect a grandparent whose child, as the custodial parent, was denying visitation with a grandchild due to a conflict between grandparent and child. Therefore, Carol may seek visitation rights of Dani Nicole if she falls within one of the circumstances enumerated in the Act. Lezli argues that she does not.
According to Lezli‘s interpretation of
It is illogical to read the requirements in the conjunctive as Lezli suggests. The apparent and obvious meaning of the statute, treated as a whole, is that the legislature intended thе three requirements to be read in the disjunctive. See R.L. v. State (1982), Ind.App., 437 N.E.2d 482. Thus, a grandparent may seek visitation with a grandchild if the child‘s parent is deceased, or the marriage of the child‘s parents has been dissolved in Indiana, or the child is born out of wedlock. Therefore, wе affirm the trial court‘s finding that because Dani Nicole was born out of wedlock, Carol has standing to seek visitation with her pursuant to
II. Visitation
Carol asserts that the trial court erred in determining that visitation would not be in the best interests of Dani Nicole. The legislature has provided that visitation rights may be granted when the court finds that it is in the best interests of the child.
The best interests of the child is committed to the sound discretion of the trial court and will be reversed on appeal upon a showing of an abuse of that discretion. Walker v. Chatfield (1990), Ind.App., 553 N.E.2d 490, 493. An abuse of discretion exists where the trial court‘s decision is clearly against thе logic and effect of the facts and circumstances before the trial court or the reasonable, probable deductions to be drawn therefrom. Id. We will not reweigh the evidence or judge the credibility of witnesses. Id.
In the case at bar, the trial judge stated:
[A]s far as the best interest of the child, the Court will grant the Petition and Motion of [Lezli] because all I‘ve heard is what the grandmother wants and her perception in terms of the best interest of the child. The best interest of the child goes to the nurturing on behalf of the custodial parent and along with the extended family to bring that child up in a healthy manner. And if there is conflict between siblings [sic] and parent, then there is no agreement, nor concept in trying to nourish the child. So I find, based upon the facts that the sibling [sic] of [Carol] and she are not having a relationship and are in disagreement about contact or access to this child, there certainly can be no communication in terms of what‘s in the best interest as far as nurturing this child.
Record at 145-46.
In his findings, the trial judge focused solely upon the relationship between Carol and Lezli, rather thаn on the relationship between Carol and Dani Nicole, in determining what was in the best interests of Dani Nicole. In determining whether visitation with Carol would be in Dani Nicole‘s best interests, the focus should be on the relationship between Carol and Dani Nicole, including whеther Carol has had, or has attempted to have, meaningful contact with Dani Nicole. See
It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren far exceeds anything explicable in purely biоlogical terms. A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relations between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child‘s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which cannot be derived from аny other relationship. Neither the Legislature nor this court is blind to human truths which grandparents and grandchildren have always known.
We find the statement of the supreme court of New Jersey insightful and adopt its view as supporting the activities of our legislature. Because the trial court, in its findings, focused on the relationship between Carol and Lezli, rather than on the relationship between Carol and her granddaughter, we remand for further proceedings to determine whether, based upon the relationship between Carоl and Dani Nicole, visitation with Carol would be in Dani Nicole‘s best interests.
Reversed and remanded for further proceedings.
ROBERTSON, J., concurs.
CHEZEM, J., dissents with separate opinion.
CHEZEM, Judge, dissenting.
I respectfully dissent from the majority opinion. I cannot agree with the majority‘s adoption of Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199, 204 (1975). Under Mimkon, the majority holds that the trial court should focus on the relationship between Carol and Dаni Nicole in determining the best interest of Dani Nicole. I disagree with this focus. Basing visitation on just one relationship is not enough of a basis to support the child‘s well-being.
The trial court cited the conflict between Carol and Lezli, Dani Nicole‘s mother, as a reason visitation with Carol would not be in the child‘s best interest. A trial court‘s focus should be on providing the most supportive environment for the child. The trial court here determined that this would be provided by Lezli, without visitation by Carol. The trial court properly considerеd Dani Nicole‘s
1. This case was diverted to this office on August 16, 1994, by direction of the Chief Judge.