Collard v. Enyeart

FRIEDLANDER, Judge,

concurring in result

I concur in the result reached by the majority. Unlike the majority, I find it unnecessary to discuss the grandparent visitation statute or the statute regarding the limited circumstances when visitation survives an adoption. In my view the Collards’ claim, in this second round of proceedings, is barred by the claim preelu*1161sion branch of res judicata. Our first decision finally determined between these parties all issues as to visitation and the efficacy of the adoption decree regarding M.E.

In the 1996 proceedings initiated by the Collards, they requested visitation. In the alternative, the Collards requested that the adoption be set aside. The trial court found that the Collards were not entitled to relief on the merits and that the Collards did not timely pursue their request for relief from the 1993 decree. The Collards appealed. This court affirmed the trial court’s denial of the Collards’ claims. The memorandum decision included the following footnote:

We note for clarity that the parties do not raise nor do we rely upon statutory or precedential authority relating to grandparental visitation rights.

Record at 68.

The Collards then instituted the present action seeking grandparent visitation with M.E. The trial court granted the Enyearts’ motion to dismiss the cause. In an apparent effort to explain their pursuit of visitation through additional legal proceedings, the Collards state: “Curiously, the Court [of Appeals] did not choose to consider the grandparent visitation statute and acknowledged that specifically by dropping [footnote] 1....” Appellant’s Brief at 11. The Collards contend that they have placed the question “squarely before this Court.” Appellant’s Brief at 11.

The footnote is self-explanatory. The parties did not raise the question as to grandparent visitation in the first proceedings. Courts on review neither engage in speculation nor render advisory opinions. See State ex rel. Goldsmith v. Superior Court of Marion County, 463 N.E.2d 273 (Ind.1984). The footnote did not constitute an invitation to the Collards to ignore their most recent status as the parents of M.E. whose parental rights were terminated through their consents to and the valid adoption of M.E. by the Enyearts. Moreover, the footnote did not invite further litigation on the matters determined in the first action. The footnote does not absolve the Collards of the duty to raise all aspects of a claim against the same parties in one proceeding.

The doctrine of res judicata consists of two distinct components, claim preclusion and issue preclusion. Wedel v. American Elec. Power Serv. Corp., 681 N.E.2d 1122 (Ind.Ct.App.1997), trans. denied. Claim preclusion is applicable when a final judgment on the merits has been rendered and acts to bar a subsequent action on the same claim between the same parties. Id. “When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action.” Id. at 1131.4 For the claim preclusion component of res judicata to apply, four factors must be present:

1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between parties to the present suit or their privies.

Marsh v. Paternity of Rodgers by Rodgers, 659 N.E.2d 171, 173 (Ind.Ct.App.1995).

In the first proceedings, the Collards requested visitation or relief from the adoption decree. Their new claim requests grandparent visitation. Although *1162not raised within their petition or requests to the trial court in this proceeding, the Collards raise for the first time in their brief on appeal that, as an alternative to grandparent.visitation, they should be entitled to establish a claim for third-party visitation.

In the first proceedings, the trial court made determinations on the merits regarding visitation and the validity of the adoption. Those determinations were affirmed on appeal. All matters as to the validity of the adoption and as to visitation were finally determined in the first proceedings and further action on those matters is foreclosed. The four factors necessary to establish the claim preclusion component of res judicata are present.

By choosing to address only whether the Collards have standing to pursue grandparent visitation and by ignoring the finality of the first decision in this cause, the majority leaves open the question whether other bases for visitation may be pursued by the Collards. I fear the majority decision effectively countenances continued litigation. As noted above, the Collards’ brief in this appeal requests an opportunity and forecasts an intent to pursue third-party visitation with M.E. Now is the time to clearly state that our decision in the first appeal bars continued litigation as to visitation and the efficacy of the adoption.5 To give the Collards false hope that other avenues may afford them the visitation they desire is wasteful of the parties’ and the courts’ tangible and intangible resources. I would affirm the trial court’s ruling on the basis that the previous decision by this court finally determined all issues concerning visitation and the adoption decree.

. I disagree with the majority's statement: “Claim preclusion implies that had the Collards presented their claim under the Act in the first trial court proceeding, they would have succeeded.1’ Op. at 1160. I find no authority for the proposition that determining a claim on a component of res judicata implies anything as to the merits. In fact, res judicata is employed without regard for the merits of claims. The purposes of res judica-ta are: "to bring finality to judicial proceedings and to prevent harassment of litigants who might otherwise be called upon to repeatedly defend against the same claim.” Johnson v. Anderson, 590 N.E.2d 1146, 1150 (Ind.Ct.App.1992).

. I cannot reconcile the message of the majority decision with its footnote 3. The majority recognizes that, after this/other attempts at litigation on the visitation issue will be barred by res judicata. Clearly, the current litigation regarding visitation is also barred by res judi-cata.