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FOR PUBLICATION

FILED
ATTORNEY FOR APPELLANT: JOHN J. USKERT Marcus Law Firm Fishers, Indiana
Feb 22 2008, 9:54 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
CHRISTI J. HOEING, Appellant-Respondent, vs. JEAN I. WILLIAMS, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 21A01-0706-CV-279

APPEAL FROM THE FAYETTE CIRCUIT COURT The Honorable Daniel L. Pflum, Judge Cause No. 21C01-0701-MI-5

February 22, 2008

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary Christi J. Hoeing appeals the granting of Jean L. Williams's petition for grandparent visitation with Hoeing's minor child, S.W. We reverse. Issue Has Hoeing established prima facie error in the trial court's decision to grant Williams's petition? Facts and Procedural History1 S.W. was born in January 1997. Hoeing and S.W.'s father, Kevin Williams, were divorced prior to the initiation of this action. Hoeing was granted custody of S.W., and Kevin was ordered to pay support and was granted visitation every other weekend and one evening per week. Kevin failed to make regular support payments, and consequently a warrant was issued for his arrest. Kevin stopped visiting with S.W. in April or May of 2006, and his whereabouts were unknown to both Hoeing and Williams at the time of the hearing on Williams's petition in February 2007. After Kevin disappeared, Hoeing permitted S.W. to visit with Williams every other weekend and every Wednesday because she knew that Williams was "an important person in [S.W.'s] life." Tr. at 17. Hoeing had been raised as a Jehovah's Witness, discontinued practicing that religion as a young adult, and then "decided to go back to it because [she] felt it was the best thing for [her] and [her] children." Id. at 14. Jehovah's Witnesses do not celebrate holidays or birthdays. Id. In December 2006, Williams asked Hoeing if S.W. would be able to come to
Because the trial court did not set forth detailed findings in its order granting Williams's petition, we base our factual recitation on uncontradicted testimony from the hearing on the petition.
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Williams's home on Christmas. Hoeing said no. Williams told Hoeing that S.W. had a right to celebrate Christmas and that S.W. should be able to decide whether to celebrate the holiday with Williams and her family. Although Hoeing did not permit S.W. to celebrate Christmas with Williams and her family, she did permit Williams to give S.W. birthday and Christmas gifts on the condition that Williams not refer to them as such. On January 2, 2007, Williams filed a petition for grandparent visitation that reads in pertinent part as follows: 5. Grandparent's visitation rights are in the best interests of the child. a. The custodial mother informed Petitioner on 12/16/06, that Petitioner would [be] denied any future visitation with [S.W.] b. [S.W.] has had weekly contact with the Petitioner and the Petitioner's family throughout her entire life. c. Until recently, the child's visitation schedule was largely in conformity with the Indiana Parenting Time Guidelines, i.e. every other weekend and one night through the week was spent with the Petitioner. d. Throughout her lifetime, [S.W.] has developed a close, strong familial relationship with her father's side of the family, such that a denial of grandparent's visitation rights would adversely affect [S.W.] The custodial mother practices a religion that does not recognize most holidays. While the Petitioner recognizes the mother's right to practice the religion of her choice, she feels it would be appropriate to grant holiday visitation to the Petitioner so that she and her family may celebrate holidays with [S.W.]

6.

Appellant's App. at 34. The trial court held a hearing on Williams's petition on February 20, 2007. Hoeing testified that she did not want to deny Williams visitation with S.W. but was concerned about

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Williams's willingness to respect her religious beliefs as they related to raising S.W. Hoeing further stated, I don't necessarily think that the every other weekend and every other Wednesday [visitation] is good because we have our own family at home. I think it's more important that [S.W.] be with me and I, actually she wasn't seeing [Williams] for the whole weekend, every other weekend up until the holiday issue. I had taken, or I had said that I wasn't going to let her go there for the whole weekend anymore. I was trying to back it off a little bit. [S.W.'s] father is not around and that time is time she can spend with me and our family at home. I was trying to consider their feelings also. Tr. at 17.2 At the conclusion of the hearing, the trial court remarked, Now, the problem I see, and I'm going to address it in this fashion, that I have a husband and wife and the wife decides that she wants to join a religion or go back to a religion, Jehovah's Witness, that does not recognize any of the holidays, birthdays or all of that and yet the child lived its first ten years celebrating all of those. Now we've got a particular problem. All of a sudden you've got mom who is custodial parent, making these decisions and now she's going to turn around and she's going to say, and the present issue in a different fashion, now all of a sudden she says, well I'm not going to let you have visitation through the guidelines because that means we're celebrating a religious holiday. I have a real problem with that because that is the right of the non-custodial parent to follow those guidelines. They were set out by the Supreme Court to say these are the rights that the non-custodial parent [has]. And it happens to be half of the Christmas holiday. It happens to be Easter. I think those (inaudible) it happens to be the child's birthday. I think they have discussed, I don't know what your religion does as far as Father's Day and Mother's Day, but those are set out and those are rights that are given to the non-custodial parent.... You have a ... custodial parent [who] has a different religion than the non-custodial parent. Because, I'm looking at it from the standpoint that I'm the non-custodial parent and I don't believe in Christmas, I don't believe in birthdays, but yet that's the time I get to see my child. So, am I going to exercise my right during that period of time. I think I would. I may not say it's Christmas holiday. I may not say it's my birthday, but I think I
Hoeing also testified to her concerns that Kevin had been present during one of S.W.'s visits with Williams after his supposed disappearance and that on other occasions Williams had left S.W. with other family members.
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would exercise that right. I can't see a non-custodial parent giving up a right to visit as it has religious (inaudible) to it. Id. at 25-26. On March 16, 2007, the trial court issued an order that reads in pertinent part: And the Court having heard evidence and being duly advised in the premises, NOW FINDS as follows: 1. This matter is properly before this Court under I.C. 31-17-5, et seq. 2. Jean I. Williams, paternal grandmother of [S.W.], a minor child, has standing to petition this Court for grandparent's visitation with said minor child pursuant to I.C. 31-17-5-1(a)(2). The marriage of the child's parents was dissolved in Indiana. 3. In light of the evidence presented, Petitioner has rebutted the presumption that the mother's decision to deny Petitioner visitation is in the child's best interest. The Court finds that Grandparent's visitation is in the best interests of the minor child and the Petitioner has had meaningful contact with [S.W.] for the duration of the child's life. It is in the child's best interests to continue to have a close, familial relationship with her grandmother. It is therefore, ORDERED, ADJUDGED AND DECREED that: 1. Petitioner shall have reasonable visitation with said minor child. If the parties cannot agree to a visitation schedule, the Indiana Parenting Time Guidelines shall apply [except for midweek3]. 2. This Order shall remain in effect until further order of this Court.

The bracketed language is a handwritten addendum to the trial court's order and appears in the chronological case summary's synopsis of the order.

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Appellant's App. at 3.4 Hoeing filed a motion to correct error, which the trial court denied. This appeal ensued. Discussion and Decision Indiana Code Section 31-17-5-1(a) of the Grandparent Visitation Act provides that a child's grandparent may seek visitation rights if the marriage of the child's parents has been dissolved in Indiana. Indiana Code Section 31-17-5-2(a) states that the court may grant visitation rights if it determines that visitation rights are in the best interests of the child. In determining the child's best interests, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. Ind. Code

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