Feb 19 2016, 5:27 am
ATTORNEY FOR APPELLANTS
Christopher M. Gilley
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Adoption of February 19, 2016
A.A. and L.A. (Minor Children) Court of Appeals Case No.
48A02-1505-AD-328
Appeal from the Madison Circuit
J.B. and S.B., Court
Appellants, The Honorable Steven Nation,
Special Judge
v.
Trial Court Cause No.
48C03-1202-AD-11
R.C. and N.C.,
Appellees.
Bailey, Judge.
Case Summary
[1] J.B. and S.B. (“Parents” or “Adoptive Parents”) petitioned for guardianship
and later adopted A.A. and L.A. (“Children”). In 2012, the trial court granted
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R.C. and N.C. (“Grandparents” or “Maternal Grandparents”) grandparent
visitation rights and ordered a specific visitation schedule. Parents, however,
denied Grandparents the court-ordered visitation, prompting Grandparents to
file numerous contempt motions to enforce the order. Parents in turn filed a
petition to terminate grandparent visitation rights. Following consolidated
hearings on the motions and petition, the trial court found Parents in contempt
of court, ordered Parents to pay Grandparents’ attorney fees of over $17,000
(plus $2,000 in previously-awarded fees) as a sanction for contempt, and denied
Parents’ petition to terminate grandparent visitation rights. We affirm.
Issues
[2] Parents present three issues for our review, which we reorder and restate as the
following:
I. Whether the trial court abused its discretion in finding
Parents in contempt for refusing to comply with the court’s
orders on grandparent visitation;
II. Whether the trial court abused its discretion in ordering
Parents to pay $17,282.50 of Grandparents’ attorney fees
(plus $2,000 in previously-awarded attorney fees) as a
sanction for contempt; and
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III. Whether the trial court abused its discretion in denying
Parents’ petition to terminate grandparent visitation
rights.1
Facts and Procedural History
[3] As the trial court observed, the facts and history of this case are “just extremely
sad.” (Tr. 628.) In 2008, M.A. brutally murdered his wife and Children’s
mother, C.A., in the presence of Children.2 J.B. and S.B.3 immediately took
custody of Children and later petitioned for guardianship. Maternal
Grandparents (C.A.’s adoptive parents) consented to the guardianship.4 Over
time, however, the relationship between Parents and Grandparents grew
strained.
[4] On February 21, 2012, Parents filed an adoption petition, which was assigned
to Judge Thomas Newman, Jr., of the Madison Circuit Court 3. Grandparents
1
Parents also raise a fourth issue: whether the trial court erred in ordering Parents to engage a clinical
psychologist to evaluate the parties and determine the best method to reinstate grandparent visitation.
Parents argue that the order was impermissible under this Court’s decision in In re Guardianship of C.R. &
A.R., 22 N.E.3d 657, 661 (Ind. Ct. App. 2014) (holding that under the plain language of Indiana Code
section 31-17-2-12, “the trial court does not have the authority to order [a child custody] evaluation, in a
visitation proceeding, absent a request to do so from a parent or custodian”). However, Parents and Children
have already submitted to the psychological evaluation; indeed, the appendix contains a copy of the
psychologist’s report. This Court therefore cannot provide Parents the relief they seek, and the issue is now
moot. See In re Tina T., 579 N.E.2d 48, 52 (Ind. 1991) (“An appeal or an issue becomes moot when [. . . ] the
court on appeal is unable to render effective relief upon an issue.”).
2
At the time, A.A. was almost five years old and L.A. was an infant. M.A. pleaded guilty to murder and is
serving a sixty-year sentence.
3
J.B. is M.A.’s half-brother. J.B. and S.B., then partners, are now married.
4
Children’s paternal grandmother also consented to the guardianship, but filed a petition for grandparent
visitation rights at that time. Our supreme court’s opinion in In re Guardianship of A.J.A. & L.M.A., 991
N.E.2d 110 (Ind. 2013), concerns paternal grandmother’s visitation rights.
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first filed an untimely objection to the adoption petition, then filed a separate
cause of action seeking to establish grandparent visitation.5 Following a
consolidated hearing on the adoption petition and grandparent visitation rights,
the court entered an order on April 25, 2012 granting both Parents’ petition for
adoption and Grandparents’ petition for visitation rights (“the April 2012
order”). As to grandparent visitation, the court noted that Parents “have
consented that visitation is appropriate by the grandparents, but that they would
prefer that visitation not be specific, that visitation be left to the adoptive
parent[s’] discretion.” (App. 150.) Nevertheless, the court ordered a specific
visitation schedule, including one weekend per month, two weeks in the
summer, and certain special occasions.
[5] On May 23, 2012, Parents filed a motion to correct error, challenging the
validity of the order on several grounds. Although Parents had permitted
Grandparents to have visitation in May 2012, Parents denied Grandparents
visitation in June and Grandparents’ requests for summer visitation. In
response, Grandparents filed an affidavit for citation and request for sanctions
and fees on June 22, 2012. Judge Newman transferred the matter to Senior
Judge Carl VanDorn.
[6] A consolidated hearing on the motions was held on July 16, 2012, and on
August 13, 2012, the court issued two orders (“the August 2012 orders”). On
5
For a more detailed recitation of the early procedural history of this case, see In re Adoption of A.A. & L.A.,
No. 48A04-1304-AD-176, slip op. 2-4 (Ind. Ct. App. Feb. 7, 2014), trans. denied.
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Parents’ motion to correct error, the court found that Judge Newman’s order
granting visitation rights did not contain specific findings and conclusions as
required by law. The court therefore remanded the case to Judge Newman to
make those findings and conclusions, but specifically noted that the remand did
not relieve Parents of their obligation to comply with the visitation order. In all
other respects, the court denied Parents’ motion to correct error. As to
Grandparents’ affidavit for citation and request for sanctions and fees, the court
found that Parents intentionally violated the grandparent visitation order, found
Parents in contempt, and as a sanction ordered Parents to pay $2,000 of
Grandparents’ attorney fees incurred to enforce the order. (App. 9.) The court
further ordered specific “make-up” visitation for the missed monthly and
summer visitation.
[7] Despite the court’s orders, Parents continued to deny Grandparents visitation.
Grandparents soon filed a second affidavit for citation and request for
incarceration, and a motion for attorney fees. Among various other motions,
Parents moved for a change of judge. After several judicial officers declined
appointment, the Honorable Steven R. Nation of the Hamilton Superior Court
1 accepted appointment as a special judge on February 5, 2013. Meanwhile, on
March 11, 2013, Judge Newman entered the required findings and conclusions
to support the initial order granting grandparent visitation rights and
implementing a structured visitation schedule. On appeal, this Court affirmed
in all respects the trial court’s order on grandparent visitation. See In re Adoption
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of A.A. & L.A., No. 48A04-1304-AD-176, slip op. at 9 (Ind. Ct. App. Feb. 7,
2014), trans. denied.
[8] Following certification of this Court’s decision, Grandparents filed on June 3,
2014 another affidavit for citation, motion to enforce order, and request for
appropriate sanctions. On July 17, 2014, Parents filed a verified petition to
terminate grandparent visitation rights. On September 15, 2014, November 5,
2014, and January 13, 2015, Special Judge Nation heard evidence and
argument on Grandparents’ pending contempt citations and motions6 and
Parents’ petition to terminate. On March 26, 2015, the court found Parents in
contempt for refusing regular and make-up visitation after the April 2012 and
August 2012 orders and for failing to pay the previously-ordered $2,000
sanction. The court then ordered Parents to pay an additional sanction of
$17,282.50 in attorney fees (App. 37), reduced each sanction order to a
judgment, and took under advisement Grandparents’ request for additional
sanctions or incarceration. The court denied Parents’ request to terminate
grandparent visitation rights.
[9] Parents now appeal.
6
Grandparents’ pending motions included: July 3, 2014 Affidavit for Citation, Motion to Enforce Order, and
Request for Appropriate Sanctions; May 8, 2013 Motion to Reduce Attorney Fee Order to Judgement;
February 28, 2013 Motion for Proceedings Supplemental against [J.B.] and [S.B.] to Enforce Attorney Fee
Order; August 15, 2012 Motion for Relief Against [J.B.] and [S.B.] Per IC 34-52-1-1; September 17, 2012
Second Affidavit for Citation and Request for Incarceration; October 1, 2012 Amended Affidavit for Citation
and Request for Incarceration.
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Discussion and Decision
[10] We first note that Grandparents have not filed an appellees’ brief.
Where the appellee fails to file a brief on appeal, we may, in our
discretion, reverse the trial court’s decision if the appellant makes
a prima facie showing of reversible error. McGill v. McGill, 801
N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima
facie error is defined as “at first sight, on first appearance, or on
the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct.
App. 2006). This rule was established for our protection so that
we can be relieved of the burden of controverting the arguments
advanced in favor of reversal where that burden properly rests
with the appellee. McGill, 801 N.E.2d at 1251.
In re Visitation of C.L.H., 908 N.E.2d 320, 326-27 (Ind. Ct. App. 2009). With
this standard in mind, we turn to Parents’ contentions.
Contempt Order
[11] Parents argue that the trial court abused its discretion when it found Parents in
contempt for failing to comply with the court’s April 2012 and August 2012
orders on grandparent visitation.
[12] Whether a party is in contempt of court is a matter within the trial court’s
discretion. In re Paternity of M.F., 956 N.E.2d 1157, 1162 (Ind. Ct. App. 2011).
A court’s finding of contempt will be reversed only for an abuse of that
discretion. Id. “A court has abused its discretion when its decision is against
the logic and effect of the facts and circumstances before the court or is contrary
to law.” Id.
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[13] There are two types of contempt: direct and indirect. Akiwumi v. Akiwumi, 23
N.E.3d 734, 737 (Ind. Ct. App. 2014). Willful disobedience of any lawfully-
entered court order of which the offender had notice is indirect contempt.
Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind. Ct. App. 2001), trans. denied.
In order to be held in contempt for failure to follow the court’s
order, a party must have willfully disobeyed the court order. Ind.
High Sch. Athletic Ass’n v. Martin, 765 N.E.2d 1238, 1241 (Ind.
2002). The order must have been so clear and certain that there
could be no question as to what the party must do, or not do, and
so there could be no question regarding whether the order is
violated. Id. A party may not be held in contempt for failing to
comply with an ambiguous or indefinite order.
City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005).
[14] Grandparents filed multiple affidavits for citation, the most recent of which
alleged that Parents stopped “all visitation and communication” between
Grandparents and Children after May 2012 despite the court’s prior orders.
(App. 237.) At the hearing, Parents admitted that they denied Grandparents
visitation and that Grandparents have had no contact with Children since May
2012. Grandparents also introduced into evidence copies of emails sent
between April 2012 and May 2013, in which Grandparents expressed their
intention to exercise visitation rights in accordance with the court orders and
Parents either denied visitation or simply did not reply. The trial court found
that “Parents have presented no valid defense for their actions” (App. 37) and
found them in contempt of the visitation orders.
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[15] On appeal, Parents first point to several recent Indiana appellate court opinions
concerning grandparent visitation rights, but present no cogent reasoning that
explains the effect of these cases on the court’s finding of contempt. See Ind.
Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning”). Parents
seem to suggest that because they believed the court’s April 2012 order granting
grandparent visitation rights was void, the trial court abused its discretion in
finding them in contempt for failing to follow it.
[16] A person cannot be held in contempt for failure to obey an order the court
lacked jurisdiction to give; such an order is void and unenforceable. City of
Gary, 822 N.E.2d at 169. However, a defendant may be found in contempt for
violating an order that is erroneous or otherwise invalid. Id. “‘The only
remedy from an erroneous order is appeal and disobedience thereto is
contempt.’” Id. at 170 (quoting Carson v. Ross, 509 N.E.2d 239, 243 (Ind. Ct.
App. 1987), trans. denied).
[17] Parents had an opportunity to – and did – challenge the validity of the court’s
visitation order, including the court’s jurisdiction. Parents first filed a motion to
correct error. That motion was denied, except that Judge VanDorn remanded
the case to Judge Newman for more detailed findings and conclusions. To that
end, the court explicitly ordered: “It must be noted that the trial court’s failure
to issue these findings does not release the ADOPTIVE PARENTS of their
obligation to follow the visitation order.” (App. 7.) After the findings and
conclusions were entered, Parents appealed the order granting visitation rights.
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This Court affirmed in all respects, see A.A. & L.A., No. 48A04-1304-AD-176,
slip op. at 9, and the Indiana Supreme Court denied Parents’ petition to
transfer, 9 N.E.3d 170 (Ind. May 15, 2014) (table). As this Court has already
reviewed the jurisdictional issues surrounding the trial court’s order granting
grandparent visitation rights, we decline Parents’ invitation to revisit those
issues. Parents’ belief that the orders were void is not a valid defense to their
actions.
[18] Parents also argue that the court’s order on contempt is an abuse of discretion
because Parents were acting in Children’s best interest. According to Parents,
“[i]t is not willful disobedience to do what is in the best interests of the children
when the order would place the children in harm’s way.” (Appellant’s Br. 35.)
[19] At the hearing, Parents testified at length about specific incidents of
Grandparents’ conduct and why Parents believed contact with Grandparents
would be harmful to Children or otherwise not in Children’s best interests.
However, because Grandparents and Children have not had contact since May
2012, Parents’ testimony and other supporting evidence focused on events and
interactions that occurred prior to that time. Our review of the record shows
that the behavior about which Parents complain was well-documented prior to
the April 2012 adoption/visitation hearing, at which time Parents agreed to
facilitate grandparent visitation and the trial court found that grandparent
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visitation was in Children’s best interests.7 As to Parents’ concerns about
Grandparents’ behavior after the April 2012 order, it is clear from the August
2012 orders that Parents also presented those concerns to the trial court. After
hearing Parents’ evidence and argument concerning the May 2012 visitation,
Judge VanDorn found Parents in contempt for denying visitation, ordered
Parents to comply with the April 2012 order, and further ordered make-up
visitation.
[20] Now Parents seek to use the same evidence to argue that they were not willfully
disobedient of the court’s orders, but justifiably protecting Children. Although
Parents argue that Grandparents’ “traumatizing conduct” and “pattern of
behavior” was recently “brought to light,” thus “distinguish[ing] the matter
now from the previous appeal” (Appellant’s Br. 14), the record does not support
this assertion. And to the extent Parents now argue that they did not have
ample time or notice to adequately raise and argue their concerns at the April
2012 hearing, the time to bring that challenge was during the August 2012
motion to correct error or on appeal of the original order.
[21] By again raising the same evidence and arguments already presented to the trial
court, Parents attempt to collaterally attack the court’s prior finding that a
relationship with Grandparents is in Children’s best interests. Parents’
7
As this Court previously described, Parents’ position at the time of the visitation hearing “could be summed
up as a reluctance to have structured visitation rights given to the Maternal Grandparents, more than a
disagreement that visitation should occur at all.” A.A. & L.A., No. 48A04-1304-AD-176, slip op. at 8-9.
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continuing disagreement with the trial court’s finding in this respect is not a
valid justification for disobeying the order. Parents appealed the order, and this
Court affirmed the trial court. After the adverse appellate decision, J.B.’s belief
– no matter how sincere – that “I don’t believe that [the Court of Appeals] got
the answers correct” (Tr. 293) does not relieve Parents of their obligation to
follow a clear and unambiguous trial court order.
[22] The trial court did not abuse its discretion in finding Parents in contempt for
willfully disobeying a valid court order for grandparent visitation.
Sanction
[23] Parents next challenge the trial court’s award of $17,282.50 in attorney fees as a
sanction for their contempt.
[24] After a party has been found in contempt of court, monetary damages may be
awarded to compensate the other party for injuries incurred as a result of the
contempt. City of Gary, 822 N.E.2d at 172. The determination of damages in a
contempt proceeding is within the trial court’s discretion. Id. We will reverse
an award of damages only if there is no evidence to support the award. Id. In
establishing the amount of damages, the court may take into account “the
inconvenience and frustration suffered by the aggrieved party . . . .” Id.
(quoting Thomas v. Woollen, 255 Ind. 612, 266 N.E.2d 20, 22 (1971)).
[25] In support of their request for sanctions, Grandparents submitted a January 13,
2015 statement showing Grandparents had paid $19,252 in attorney fees since
March 31, 2012, plus had an outstanding balance (including anticipated fees) of
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$2,950. (Exhibit F.) R.C. stated at the hearing that the statement included the
$2,000 in attorney fees previously awarded on August 13, 2012 as a sanction for
contempt. The trial court ordered Parents to pay the $2,000 of previously-
ordered fees, “an additional attorney fees sanction in the amount of
$17,282.50,” and reduced each award to a judgment. (App. 37.)
[26] Parents contend that the evidence does not support an additional sanction of
$17,282.50 because not all of the fees listed on the statement were incurred as a
result of Parents’ contumacious conduct. At the hearing, Parents alleged that
certain line items on the statement related to the guardianship proceedings, not
to the grandparent visitation case.8 Grandparents’ attorney made conciliatory
comments – such as “I’ll cross that one out” (Tr. 508) – as to five of the charges
totaling $612.50.9 (Tr. 506, 508, 514, 516; Exhibit F.) Based on this testimony
and commentary, Parents argue that the statement was so inaccurate that “the
Court should have disregarded the entire invoice.” (Appellant’s Br. 40.)
[27] We disagree that Parents’ testimony rendered the invoice so inaccurate and
unreliable that an attorney fees award based on the statement was an abuse of
discretion. Although Parents objected to some of the fees as unrelated to the
visitation matter and Grandparents’ attorney voiced her willingness to remove
them, this does not preclude the possibility that the trial court determined that
8
Specifically, Parents pointed to charges incurred on April 23, April 30, May 16, May 21, May 22, June 25,
August 3, November 30, and December 6, 2012, and March 12 and May 28, 2013.
9
These charges occurred on April 23, April 30, May 16, November 30, 2012 and May 28, 2013.
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the majority of the fees billed were related to Parents’ contumacious conduct.
See Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 204-05 (Ind. 2012) (holding that
the trial court did not abuse its discretion when it imposed fees based on
evidence presented during a preliminary injunction hearing, rather than
apportioning fees to reflect only the parts of the hearing relevant to the
contempt judgment). Furthermore, because $2,000 of those fees had already
been awarded as a sanction for Parents’ contempt and some of the fees were
speculative, the trial court did not award the full invoiced amount.10
[28] The trial court did not abuse its discretion in ordering Parents to pay an
additional $17,282.50 in attorney fees (plus $2,000 of previously-awarded fees)
as a sanction for contempt.
Order on Grandparent Visitation
[29] Parents also argue the court’s order denying Parents’ verified petition for
termination of grandparent visitation rights was an abuse of discretion.
[30] Parents first contend that the order was deficient because the order does not
explicitly discuss four factors a court must address when granting or denying
grandparent visitation as an initial matter. “When a trial court enters a decree
granting or denying grandparent visitation, it is required to set forth findings of
10
Parents also argue that the trial court abused its discretion in ordering them to pay the $2,000 in
previously-ordered attorney fees because Judge VanDorn vacated the previous contempt finding and
sanctions order. In support, Parents cite passing comments made by the court during a December 17, 2012
hearing. However, Parents point to no order vacating the August 2012 award. Our review of the court’s
comments and the record as a whole show that the evidence and record do not support Parents’ argument.
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fact and conclusions of law.” In re Paternity of K.I., 903 N.E.2d 453, 462 (Ind.
2009) (citing McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003)).
Indiana courts have held that those findings and conclusions must specifically
address four factors, commonly known as the McCune factors: (1) the
presumption that a fit parent’s decision about grandparent visitation is in the
child’s best interests; (2) the special weight that must be given to a fit parent’s
decision regarding non-parental visitation; (3) some weight given to whether a
parent has denied or simply limited visitation; and (4) whether the grandparent
has established that visitation is in the child’s best interests. In re Visitation of
M.L.B., 983 N.E.2d 583, 586 (Ind. 2013) (citing McCune, 783 N.E.2d at 757-59,
and reordering the McCune factors).11 As our supreme court has explained, the
“first three required factors implement the constitutionally protected right of fit
parents to make child rearing decisions, and reflect the significant burden of
proof grandparents must carry to override those decisions.” Id. at 587.
[31] Because the trial court’s order did not explicitly address the first three McCune
factors, Parents contend that the order was insufficient. However, Parents fail
to acknowledge that the order being appealed at this stage is not an initial order
granting grandparent visitation rights. That order was entered in April 2012,
supplemented with the required findings and conclusions in March 2013, and
affirmed on appeal in February 2014. See A.A. & L.A., No. 48A04-1304-AD-
11
In their brief, Parents state that the four factors were established by Hicks v. Larson, 884 N.E.2d 869 (Ind.
Ct. App. 2008), trans. denied. The McCune factors are the same as those enumerated in Hicks. See Hicks, 884
N.E.2d at 873-74.
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176. After this Court’s prior decision was certified, Parents then petitioned the
trial court seeking modification of existing visitation rights, specifically asking
that those rights be terminated. The order now being appealed is the trial
court’s order denying Parents’ petition to terminate.
[32] As to modification, the Act provides: “The court may modify an order granting
or denying visitation rights whenever modification would serve the best
interests of the child.” I.C. § 31-17-5-7. Parents argue that Grandparents
“wholly failed to present any testimony, exhibits, or evidence to support that it
is in the best interest of the children” and therefore “the order for visitation
must fail.” (Appellant’s Br. 11.) In other words, they seek to shift the burden to
Grandparents to show that grandparent visitation is still in Children’s best
interests.
[33] We have found no Indiana case that specifically speaks to the burden of proof
on a petition to modify an existing order of grandparent visitation rights.
However, our courts have addressed the burden of proof necessary to modify an
existing order of parenting time rights following an initial custody
determination. Using nearly identical language to the grandparent visitation
statute, Indiana Code section 31-17-4-2 provides, in relevant part: “The court
may modify an order granting or denying parenting time rights whenever
modification would serve the best interests of the child.” For the purposes of
custody and parenting time rights, both parents are presumed equally entitled to
custody in an initial custody determination. In re Paternity of Snyder, 26 N.E.3d
996, 998 (quoting Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App.
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2010). However, after the initial determination, a petitioner seeking
modification of a parenting time order bears the burden of showing that custody
should be altered. Id.
[34] The similarity in statutory language suggests that we place the burden on
modification of grandparent visitation rights with the same party as on
modification of parenting time rights. Even though the petitioning grandparent
carries a high burden on the initial petition for grandparent visitation rights, the
petitioner seeking a subsequent change in a grandparent visitation order bears
the burden of showing the order should be modified. As the moving party,
Parents thus bore the burden of demonstrating that modification of the existing
visitation order would serve Children’s best interests.
[35] In making their argument for modification, Parents again relied on evidence
and testimony about events that pre-dated the court’s May 2012 and August
2012 orders. The trial court thus found that “Parents have failed to show a
change of circumstances since the last Order that would make it no longer in
the best interest of the minor children to have a relationship with their
Grandparents.” (App. 35.)
[36] By presenting no new evidence to support termination of visitation, Parents’
motion to terminate amounted to nothing more than an attempt to re-litigate
issues already brought before the court and affirmed on appeal. Now Parents
argue that “[w]ith three (3) years of no visitation between [Grandparents] and
the children, such a lapse in time between visits is in and of itself a substantial
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change of circumstances.” (Appellant’s Br. 14.) However, Parents presented
no evidence at the hearing that the lapse in time alone would be detrimental to
Children’s well-being. Further, Parents fail to acknowledge that the lack of
communication between Grandparents and Children was a direct result of
Parents’ contumacious conduct.
[37] Where Parents did not present any evidence showing a change of circumstances
to support modification, let alone termination, of the visitation order, the trial
court did not abuse its discretion in denying Parents’ petition to terminate
grandparent visitation rights.
Conclusion
[38] The trial court did not abuse its discretion in finding Parents in contempt and
ordering Parents to pay $17,282.50 in attorney fees (plus $2,000 in previously-
ordered attorney fees) as a sanction for contempt. The trial court’s order
denying Parents’ petition to terminate grandparent visitation rights was not an
abuse of discretion.
[39] Affirmed.
Vaidik, C.J. and Crone, J., concur.
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