In re: The Visitation of A.W., J.W. v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jul 18 2014, 8:55 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
THE STATE OF INDIANA:
MICHAEL K. WANDLING
South Bend, Indiana GREGORY F. ZOELLER
Attorney General of Indiana

FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN RE: THE VISITATION OF A.W., )
J.W., )
)
Appellant-Respondent, )
)
vs. ) No. 71A03-1401-MI-3
)
STATE OF INDIANA, )
)
Appellee-Intervenor. )

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable Michael G. Gotsch, Judge
The Honorable Andre G. Gammage, Magistrate
Cause No. 71C01-1307-MI-154

July 18, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
 Case Summary

J.W. (“Mother”) purportedly appeals the denial of her motion to correct error, which

challenged an order granting Mother’s father (“Grandfather”) grandparent visitation with

Mother’s child, A.W. (“Child”). The Attorney General of Indiana intervened to defend the

constitutionality of the Grandparent Visitation Act, Indiana Code section 31-17-5-1, et seq.

(“the Act”). We dismiss.

Issue

Mother contends that the Act violates the Equal Protection Clause of the United States

Constitution1 and that the trial court erroneously entered a visitation order without requisite

findings of fact.2 We address a single, dispositive issue raised by the State on cross-appeal:

whether Mother’s appeal is untimely.

1
Mother did not raise the issue to the trial court prior to the hearing on her motion to correct error. At the
hearing on the motion to correct error, Mother’s attorney presented a cursory argument with regard to the
constitutionality of the Act:

If you’re divorced or in a paternity action, you can come in and get grandparent visitation.
But since I’m married – or if you’re a married person, you can deny everybody you want to.
That violates the Equal Protection Clause of [sic] allowing equal access to each party. Just
because my client isn’t married means that her right to decide who sees her son is taken away.
I don’t think that’s what the Constitution is intending.

(Tr. 30.) A party may not raise an issue for the first time in a motion to correct error. See In re Paternity of
A.R.R., 634 N.E.2d 786, 791 (Ind. Ct. App. 1994) (holding that questions regarding the constitutionality of a
civil statute must be raised to the trial court before filing a motion to correct error). Accordingly, Mother did
not preserve for appeal her allegation of constitutional error.

2
The Attorney General takes no position on this allegation of error or Mother’s request for a remand for more
particularized findings. Grandfather did not file an appellee’s brief.

2
 Facts and Procedural History

On August 29, 2006, Mother gave birth to Child. For at least one year, Mother and

Child lived with Grandfather and his wife. Grandfather also provided child care for Child

while Mother attended night school. Sometime in 2013, Mother terminated Child’s visits

with Grandfather. On July 17, 2013, Grandfather filed a petition for grandparent visitation.

On August 2, 2013, the trial court conducted a hearing at which Grandfather and

Mother each testified. At the conclusion of the hearing, the trial court verbally ordered that

Grandfather have visitation with Child one weekend per month. A written visitation order

was entered on August 7, 2013.

On September 3, 2013, Mother filed a motion to correct error, alleging that

grandparent visitation was not in Child’s best interests, that the trial court had failed to make

adequate findings, and that the Act “discriminates against single parents because of their

status” in violation of the federal Equal Protection Clause and the equal privileges and

immunities clause of the Indiana Constitution.3 (App. 12.) A hearing was conducted on

October 30, 2013. At the conclusion of the hearing, the trial court stated that the court would

be “going forward with [its] ruling” but would enter more specific findings in support of the

grant of grandparent visitation. (Tr. 44.)

Pursuant to Indiana Trial Rule 53.3, the motion to correct error was deemed denied on

December 2, 2013.4 On December 5, 2013, the trial court issued an order of denial,

3
On appeal, Mother confines her argument to alleging a violation of the federal Equal Protection Clause.

4
The thirtieth day after the hearing, November 29, 2013 was a holiday for the trial court, followed by two

3
specifying that Child had an established relationship with Grandfather and that visitation with

Grandfather was in Child’s best interests. The trial court also stated that it had considered

the grandparent visitation factors set forth in McCune v. Frey, 783 N.E.2d 752 (Ind. Ct. App.

2003)5 and declared that the Act was not constitutionally infirm. This appeal ensued, with

the participation of the Indiana Attorney General. The State filed a motion to dismiss, which

was denied by the Motions Panel of this Court.6

Discussion and Decision

weekend days. Thus, the date of deemed denial was Monday, December 2, 2013.

5
When grandparent visitation is awarded, the trial court must set forth specific findings of fact and conclusions
of law, in justification of the infringement upon parental rights. In re Visitation of M.L.B., 983 N.E.2d 583,
584 (Ind. 2013). The McCune Court set out four factors, approved and mandated by our Indiana Supreme
Court in In re K.I., 903 N.E.2d 453 (Ind. 2009). The factors are:

(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best
interests (thus placing the burden of proof on the petitioning grandparents);

(2) the “special weight” that must therefore be given to a fit parent’s decision regarding nonparental
visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the
presumption);

(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a
denial means the very existence of a child-grandparent relationship is at stake, while the question
otherwise is merely how much visitation is appropriate); and

(4) whether the petitioning grandparent has established that visitation is in the child’s best interests.

In re M.L.B., 983 N.E.2d at 586. Where a trial court’s grandparent visitation order is defective in this regard,
the appropriate remedy is “a remand for new findings and conclusions based upon the existing record.” Id. at
588.

6
In response to the motion to dismiss, Mother argued that the visitation order of August 7, 2013 was void, the
only valid visitation order was entered on December 5, 2013, and therefore her January 3, 2014 Notice of
Appeal was timely. She now concedes that the August 7, 2013 order was voidable as opposed to void. In her
Reply Brief, Mother now asserts that the December 5, 2013 order is not a nullity, but rather executes a grant of
her motion to correct error at the October 30, 2013 hearing - by providing greater specificity.

4
 On appeal, the State asks that we revisit the issue of whether this appeal should be

dismissed because Mother’s Notice of Appeal was not timely filed. Although our Motions

Panel has ruled on the motion for dismissal, we have inherent authority to reconsider any

decision while an appeal remains in fieri. Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406,

407 (Ind. Ct. App. 2007).

Pursuant to Indiana Appellate Rule 9, a party initiates an appeal by filing a notice of

appeal within thirty days after the entry of judgment. Absent a timely notice of appeal, no

jurisdiction is conferred upon this court. D.C., Jr. v. C.A., 5 N.E.3d 473, 475 (Ind. Ct. App.

2014). It is the duty of the Court of Appeals to determine whether it has jurisdiction before

proceeding to determine the merits of any case. Montgomery, Zukerman, Davis, Inc. v.

Chubb Grp. of Ins. Co., 698 N.E.2d 1251, 1252-53 (Ind. Ct. App. 1998), trans. denied.

When the Court determines that it does not have jurisdiction, it shall dismiss the appeal. Id.

at 1253.

The trial court’s order granting grandparent visitation was entered on August 7, 2013.

Mother filed a timely motion to correct error. A hearing on the motion was conducted on

October 30, 2013.

Indiana Trial Rule 53.3 sets forth a time limitation for ruling on a motion to correct

error, providing:

In the event a court fails for forty-five (45) days to set a Motion to Correct
Error for hearing, or fails to rule on a Motion to Correct Error within thirty
(30) days after it was heard or forty-five (45) days after it was filed, if no
hearing is required, the pending Motion to Correct Error shall be deemed
denied. Any appeal shall be initiated by filing the notice of appeal under

5
 Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is
deemed denied.

Rule 53.3 “is self-activating upon the passage of the requisite number of days.”

Roscoe v. Roscoe, 673 N.E.2d 820, 821 (Ind. Ct. App. 1996). The failure to act on a motion

to correct error within the rule’s prescribed time limits extinguishes the authority of the trial

court to rule on the motion; any subsequent ruling is a nullity. Johnson v. Johnson, 882

N.E.2d 223, 226-27 (Ind. Ct. App. 2008).

Here, the trial court did not rule on Mother’s motion to correct error within thirty days

of the hearing. Nor did the trial court extend the deadline by making an entry advising all

parties of the extension pursuant to Rule 53.3(D). The motion was deemed denied on

December 2, 2013. Mother’s Notice of Appeal was not filed until January 3, 2014, more

than thirty days after the motion to correct error was deemed denied.7 The trial court’s

belated order of December 5, 2013 was a nullity. See Garrison v. Metcalf, 849 N.E.2d 1114,

1115 (Ind. 2006) (holding that a party’s motion to correct error was deemed denied on the

thirtieth day following the hearing notwithstanding the trial court’s belated attempt to grant

the motion after the deadline had passed).

Accordingly, we lack jurisdiction over the purported appeal.

Dismissed.

KIRSCH, J., and MAY, J., concur.

7
Because the thirtieth day, January 1, 2014, was a court holiday, Mother had until January 2, 2014 to file her
Notice of Appeal.

6