In the Matter of the Guardianship of Cor.G. and Col.G, William Tankersley and Mona Tankersley v. Gregory Greer (Father) and Shelly Brewer (Mother), and Tony Greer and Rebecca Greer (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 09 2018, 8:56 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES Cody Cogswell John T. Wilson Fishers, Indiana Jeffrey A. Lockwood Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the July 9, 2018 Guardianship of Cor.G. and Court of Appeals Case No. Col.G, 48A02-1711-GU-2676 William Tankersley and Mona Appeal from the Madison Circuit Tankersley, Court The Honorable Thomas Newman, Appellants-Petitioners, Jr., Judge v. The Honorable Christopher A. Cage, Commissioner Gregory Greer (Father) and Trial Court Cause Nos. Shelly Brewer (Mother), 48C03-1608-GU-452, -453

Respondents, and Tony Greer and Rebecca Greer, Appellees-Intervenors

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 1 of 7

Crone, Judge.

Case Summary [1] William and Mona Tankersley (“Maternal Grandparents”) appeal the trial

court’s order correcting a prior order regarding visitation with their

grandchildren, ten-year-old Cor.G and twelve-year-old Col.G. (collectively “the

Grandchildren”), who are under the guardianship of Troy and Rebecca Greer

(“Paternal Grandparents”). They assert that the trial court abused its discretion

in modifying its prior visitation order and in declining their request to hold

Paternal Grandparents in contempt. Finding no abuse of discretion, we affirm.

Facts and Procedural History [2] On August 23, 2016, Paternal Grandparents filed an emergency petition for

guardianship and custody of the Grandchildren. According to their petition,

Paternal Grandparents sought guardianship because the Grandchildren’s

natural parents have drug problems and “have both been found guilty of

actively running a ‘meth lab’ on the property” where the Grandchildren were

residing. Appellants’ App. Vol. 2 at 37. They alleged that the Department of

Child Services (“DCS”) had been involved repeatedly with the natural parents,

that the Grandchildren’s living situation with the parents was “substantially

dangerous,” and that a guardianship was in the best interests of the

Grandchildren. Id. at 36. On October 27, 2016, the trial court granted Paternal

Grandparents temporary guardianship over the Grandchildren. On January 4,

2017, with consent of the Grandchildren’s mother, Maternal Grandparents filed

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 2 of 7

a motion to intervene and a petition for guardianship of the Grandchildren.

The trial court granted the motion to intervene and set the matter for a

permanent guardianship hearing. [3] The parties (including the Grandchildren’s parents and DCS) appeared for a

permanent guardianship hearing on January 26, 2017. During the hearing, the

parties reached an agreement that was recited in open court and approved by

the trial court. Per the agreement, Paternal Grandparents were awarded

guardianship of the Grandchildren and Maternal Grandparents were granted

visitation. Specifically, the agreed-upon visitation consisted of alternating

weekends, and two three-hour midweek visits. The natural parents were

allowed only supervised visitation until further order of the court, and DCS

agreed to dismiss the related children in need of services (“CHINS”) action that

had been filed against the parents. The trial court directed Paternal

Grandparents’ attorney, Charles Bugby, to prepare a written order reflecting the

parties’ agreement. Bugby prepared an order that was signed by the trial court

on February 7, 2017. In addition to the visitation agreed upon in open court,

paragraph 11 of the order provided visitation time for Maternal Grandparents

during the summer and holiday breaks in accordance with the Indiana

Parenting Time Guidelines. [4] Bugby withdrew as counsel for Paternal Grandparents on February 23, 2017.

On April 21, 2017, Paternal Grandparents filed a pro se motion with the trial

court alerting the court that its February 2017 order contained a visitation

provision that “was not agreed to in court.” Id. at 61. On May 11, 2017, the

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 3 of 7

Paternal Grandparents filed another pro se correspondence with the trial court

alerting the court that although they were complying with the written visitation

order and allowing Maternal Grandparents visitation that had never been

agreed upon, there was substantial confusion and conflict between the parties

because the visitation arrangement was more like a “divorce” arrangement

instead of the intended “guardianship” arrangement. Id. at 62. [5] On May 26, 2017, Maternal Grandparents filed a rule to show cause and

request for attorney’s fees against Paternal Grandparents alleging that they had

denied them visitation on May 25, 2017, in violation of the written visitation

order. The trial court set the matter for hearing and, in the meantime, ordered

Paternal Grandparents to follow the court’s visitation order. Thereafter,

Paternal Grandparents filed a motion for relief from judgment or in the

alternative to modify order granting grandparent visitation. [6] The trial court held a hearing on all pending motions on June 21, 2017. On

June 30, 2017, the trial court issued an order concluding in relevant part,

[Paternal Grandparents] have raised an objection concerning the fact that they did not agree to holiday or summer visitation pursuant to the Indiana Parenting Time Guidelines at the hearing on January 26, 2017. Rather the first time they became aware of that provision in the written agreement was after the fact. Having reviewed the oral record of said hearing, the Court is inclined to agree…. No specific mention of those holidays or breaks were mentioned. Accordingly, the written order did not accurately reflect what was tendered to the Court orally in open Court. As such, the visitation order is required to be modified in order to

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 4 of 7

accurately reflect what was submitted and approved by the Court.

Appealed Order at 3. Therefore, the trial court struck paragraph 11 of the

original visitation agreement and stated, “All other visitation shall remain as

ordered.” Id. The trial court further concluded that Maternal Grandparents’

“request for show cause and attorney fees is DENIED at this time.” Id.

(emphasis omitted). Maternal Grandparents filed a motion to correct error

which was subsequently denied by the trial court. This appeal ensued.1

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in correcting the visitation order to accurately reflect the parties’ agreement. [7] Maternal Grandparents first argue that the trial court abused its discretion in

modifying visitation absent a showing that such modification was in the best

interests of the Grandchildren. However, no modification of the agreed-upon

visitation occurred. Rather, the trial court essentially entered a nunc pro tunc

order to correct its February 2017 written order to “accurately reflect what was

submitted and approved by the Court.” Appealed Order at 3; see Cotton v. State,

658 N.E.2d 898, 900 (Ind. 1995) (a nunc pro tunc order is “an entry made now

1 The Grandchildren’s natural parents and original respondents in the guardianship proceedings, Gregory Greer and Shelly Brewer, did not file briefs on appeal. However, we have included them on the caption page because pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 5 of 7

of something which was actually previously done, to have effect as of the

former date.”) (citation omitted). Maternal Grandparents have shown no abuse

of discretion.

Section 2 – The trial court did not abuse its discretion in denying the petition for contempt. [8] Maternal Grandparents also argue that the trial court abused its discretion in

declining to find Paternal Grandparents in contempt for restricting their

visitation in violation of the written visitation order. Generally, the

determination of whether a party is in contempt is a matter within the trial

court’s discretion, and we will reverse a trial court’s decision in this regard only

if we find that an abuse of that discretion has occurred. Van Wieren v. Van

Wieren, 858 N.E.2d 216, 222-23 (Ind. Ct. App. 2006). “When reviewing a

contempt order, we will neither reweigh the evidence nor judge the credibility

of witnesses.” Id. at 223. “Crucial to the determination of contempt is the

evaluation of a person’s state of mind, that is, whether the alleged

contemptuous conduct was done willfully.” Steele-Giri v. Steele, 51 N.E.3d 119,

129 (Ind. 2016) (citation omitted). [9] Paternal Grandparents conceded that they did restrict some visitation, but they

testified unequivocally that it was never their intent to deprive Maternal

Grandparents of visitation with the Grandchildren. They explained that any

restrictions were minimal, and that such restrictions were mainly due to the

confusion caused by the fact that the written visitation order did not accurately

reflect what they had agreed to in open court. Paternal Grandfather further

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 6 of 7

explained that his son (the Grandchildrens’ father) had threatened his life and

that because Maternal Grandparents had been allowing his son to see the

Grandchildren during their visitation time, Paternal Grandfather was

concerned for the Grandchildren’s safety and so he briefly halted visitation until

a hearing could be held. Maternal Grandmother testified that she understood

why Paternal Grandparents would have wanted to restrict visitation under the

circumstances. [10] The trial court, who saw the witnesses and heard their impassioned testimony,

declined to find the conduct of Paternal Grandparents to be willfully

contemptuous under the circumstances. However, the court warned that “any

further denials of visitation may result in the imposition of fees.” Appealed

Order at 4. This was a reasonable exercise of discretion, and we reject Maternal

Grandparents’ invitation to reweigh the evidence and substitute our judgment

for that of the trial court. The trial court did not abuse its discretion in

declining to find Paternal Grandparents in contempt. The judgment of the trial

court is affirmed. [11] Affirmed.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1711-GU-2676 | July 9, 2018 Page 7 of 7