STATEMENT OF THE CASE
Petitioner-appellant A.O. (Grandmother) appeals a summary judgment entered in the Monroe Superior Court in favor of respondent-appellee K.O. (Mother) upon the Grandmother's petition for grandparent visitation rights with her grandson, J.O. (Child).
STATEMENT OF THE FACTS
The Child was born September 26, 1976, to the Mother during her marriage to C.R. (Husband). At the time the Child was conceived, the Husband was stationed with the United States Marine Corps in California. During that time, the Husband was never in the presence of the Mother. By affidavit, the Mother alleged that the natural father of the Child is one J.M., who often was observed in the company of the Mother at the time the Child was conceived. The Grandmother testified that the Mother was seeing J.M. during the time she conceived the Child and the Mother had told her that J.M. was the Child's natural father. When the Child was born, the Husband and Mother were in the process of divorce.
In his signed petition for dissolution of the marriage the Husband stated that no children were born of the marriage and no children were expected. The divorce decree established the same. After his birth, the Child lived with the Mother and Grandmother for nearly three years. For personal reasons, the Mother and Child then moved out of the Grandmother's house and the Mother did not permit the Grandmother to visit with the Child. As a result, the Grandmother petitioned the court to grant her visitation with the Child. Following a
Shortly after this appeal was fully briefed, the parties filed a "Joint Report" signed by the petitioner and respondent in this cause and their attorneys. In pertinent part, the Joint Report stated the following:
The Grandmother presents the following issue for review:
DISCUSSION AND DECISION
Upon review of a motion for summary judgment, the Court of Appeals is constrained by the same standard as the trial court. Summary judgment may be granted only if all the material on file shows that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Carrell v. Ellingwood, (1981) Ind. App., 423 N.E.2d 630. In reviewing the propriety of a summary judgment, the facts alleged by the party opposing the motion must be taken as true. Boswell v. Lyon, (1980) Ind. App., 401 N.E.2d 735.
The Grandmother first argues that the trial court erred in granting summary judgment upon the determination that it lacked jurisdiction to decide whether the Grandmother should be awarded visitation rights with the minor Child. The Grandmother further argues that the trial court seems to have confused jurisdiction with standing. On that point, we agree. Upon reading the trial court's findings of fact and conclusions of law, it is apparent the trial court found that the Grandmother was not a party protected by the Grandparent's Visitation Statute. In pertinent part, the trial court's conclusion of law read as follows:
Obviously, the trial court had jurisdiction over both the person and subject matter of this action. Ind. Code 31-1-11.7-6 provides:
The Monroe Superior Court is the superior court of the county in which the Child resides and is the court having jurisdiction over the dissolution of the Mother's marriage.
The Grandmother next argues that the trial court defeated the intention of the legislature by concluding that she was not a party whose interests are protected under the Grandparent's Visitation Statute. Furthermore, the Grandmother asserts that that statute is a codification of a grandparent's right to seek visitation with a grandchild as developed under two Indiana cases: Krieg v. Glassburn, (1981) Ind. App., 419 N.E.2d 1015; and Collins v. Gilbreath, (1980) Ind. App., 403 N.E.2d 921.
Prior to the enactment of the Grandparent's Visitation Statute, Collins and Krieg were two cases which discussed third-party visitation rights. In Collins, the father and mother produced three children, then later divorced and both remarried. The mother was awarded custody of the children and subsequently committed suicide. The father then brought a habeas corpus action to regain custody of his children from the stepfather. First, the court in Collins noted that Ind. Code 31-1-11.5-24, the visitation statute, grants a parent the right of reasonable visitation, but is silent on the existence of such rights for nonparents. Upon concluding that the statute does not exclude visitation rights of third parties, the court found that the trial court had properly granted visitation rights to the stepfather since the stepfather provided a necessary transition to the children's new life with their natural father, who regained custody of the children. Upon so holding, the Collins court cautioned with these words:
403 N.E.2d at 923-4.
In Krieg, the maternal grandparents sought to intervene and join as parties to a custody proceeding supplemental to their daughter's divorce for the purpose of obtaining visitation with their two minor grandchildren. Also, the natural father's second wife filed a petition to adopt the children, seeking to terminate the natural mother's paternal rights. Upon reversing
419 N.E.2d at 1019.
We note that Collins and Krieg are both cases involving the dissolution of the marriage of the children's parents. In Collins, the children's mother is deceased while in Krieg the mother's parental rights are in jeopardy. In contrast, the natural father and mother of the Child in the present case are both alive and not divorced as they have never been married. Not even the noncustodial parent of the Child would have a right of action for visitation under the dissolution statute since there has been no marriage of the Child's natural parents. Ind. Code 31-1-11.5-24.
Collins and Krieg are not dispositive since the rulings therein both contemplate the existence of a marriage of the child's parents. Furthermore, the parties seeking visitation rights in Collins and Krieg were from the noncustodial side of the family and required judicial intervention to protect their visitation rights. In the case at bar, there is no marriage of the Child's parents and the party seeking visitation is the maternal grandmother of the Child, whose mother is the custodial parent. Clearly this fact situation goes beyond the scope of Collins and Krieg where the parents of the children were married, which permitted the court to consider third-party visitation rights pursuant to the divorce statute.
Turning to the Grandparent's Visitation Statute,
As a court, we are constrained to uphold the plain meaning of the statute and to carry out the true intent of the legislature. Thompson v. Thompson, (1972) 259 Ind. 266, 286 N.E.2d 657; In the Matter of the Estate of Wisely, (1980) Ind. App., 402 N.E.2d 14. We hold that the Grandparent's Visitation Statute limits third-party grandparents seeking visitation rights to the above-described two instances, and that the facts at bar go beyond the scope of Ind. Code 31-1-11.7-2 since the statute contemplates the existence of a marriage between the child's parents. "Child" means
Ind. Code 31-1-11.5-2. The Child at bar is not born of a marriage and his parents are not yet married. Plainly, the statute does not apply since the Child's parents were never married. Courts are not the proper forum for all inter-family disputes and we shall not open the doors of the court to resolve such personal problems as do not come within the statute relied upon. Therefore, the trial court was correct in granting summary judgment in favor of the Mother.
RATLIFF, P.J., and ROBERTSON, J., concur.