Rusty J. Neal v. Moriah Hali Neal, et al.

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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. FILED Nov 30 2021, 9:37 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT Jennifer A. Joas Madison, Indiana IN THE COURT OF APPEALS OF INDIANA In re the Grandparent Visitation of E.A.N. Rusty J. Neal, Appellant-Petitioner, v. Moriah Hali Neal and Kirt Mullins, November 30, 2021 Court of Appeals Case No. 21A-MI-1112 Appeal from the Ripley Circuit Court The Honorable Carl H. Taul, Sr. Judge Trial Court Cause No. 69C01-2001-MI-2 Appellees-Respondents Vaidik, Judge. Court of Appeals of Indiana | Memorandum Decision 21A-MI-1112 | November 30, 2021 Page 1 of 4 Case Summary [1] In this case, a grandparent filed a petition for grandparent visitation under Indiana Code section 31-17-5-1(a)(3), which provides a grandparent may seek visitation rights if the child was born out of wedlock. While the grandparent’s petition was pending but before the trial court ruled on it, the parents married. The parents moved to dismiss the petition, which the court granted. Because the grandparent-visitation statute does not allow for visitation if the parents are married, we affirm the trial court. Facts and Procedural History [2] E.A.N. (“Child”) was born to Moriah Hali Neal (“Mother”) and Kirt Mullins (“Father”) (collectively “Parents”) in September 2012. Parents were not married, but Father established paternity. From birth, Child lived with Mother’s father, Rusty J. Neal (“Grandfather”). At times, Parents lived at Grandfather’s home with Child. After a disagreement between Parents and Grandfather, Parents and Child moved out of Grandfather’s home in April 2019. [3] In January 2020, Grandfather filed a petition for grandparent visitation under Section 31-17-5-1(a)(3), which provides: (a) A child’s grandparent may seek visitation rights if: (1) the child’s parent is deceased; Court of Appeals of Indiana | Memorandum Decision 21A-MI-1112 | November 30, 2021 Page 2 of 4 (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock. (b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child’s father has not established paternity in relation to the child. After Grandfather filed his petition but before the trial court ruled on it, Parents married. Parents then moved to dismiss the petition, which the court granted. [4] Grandfather now appeals. Discussion and Decision [5] Grandfather appeals the trial court’s dismissal of his petition for grandparent visitation. Parents did not file an appellees’ brief. As such, we apply a less stringent standard and may reverse the trial court if Grandfather establishes prima facie error. See Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006). [6] Grandfather argues he is entitled to seek grandparent visitation because Child was born out of wedlock, notwithstanding that Parents later married. We have already addressed and rejected similar arguments. In In re Visitation of J.P.H., 709 N.E.2d 44 (Ind. Ct. App. 1999), the child was born out of wedlock, but the father established paternity. After the parents married, the paternal Court of Appeals of Indiana | Memorandum Decision 21A-MI-1112 | November 30, 2021 Page 3 of 4 grandparents filed a petition for grandparent visitation under Section 31-17-51(a)(3). On appeal, we explained that “a child born out of wedlock, whose father establishes paternity and marries the child’s mother, will be treated as if he were born during the marriage.” Id. at 47. Accordingly, we held that because the parents were married, the grandparents were not entitled to seek visitation under Section 31-17-5-1(a)(3). Id. [7] In Campbell v. Eary, 132 N.E.3d 413 (Ind. Ct. App. 2019), a grandparent was awarded grandparent visitation under Section 31-17-5-1(a)(3). When the parents later married, they moved to dismiss the grandparent-visitation order, arguing it did not survive their marriage. We agreed with the parents, holding “a grandparent visitation order does not survive the subsequent marriage of the natural parents of a child born out of wedlock.” Id. at 416. [8] According to these cases, a grandparent is not entitled to seek visitation if the parents marry after the birth of the child and is not entitled to continued visitation if the parents marry after the issuance of a grandparent-visitation order. This case falls in the middle. Because Parents married after Grandfather filed his petition, Grandfather was no longer entitled to seek visitation under Section 31-17-5-1(a)(3). We therefore affirm the trial court’s dismissal of Grandfather’s petition for grandparent visitation. [9] Affirmed. Najam, J., and Weissmann, J., concur. Court of Appeals of Indiana | Memorandum Decision 21A-MI-1112 | November 30, 2021 Page 4 of 4

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