IN THE
Court of Appeals of Indiana Joseph S. Kornman and Sirenia Kornman, FILED Appellants Feb 13 2024, 9:10 am
CLERK v. Indiana Supreme Court Court of Appeals and Tax Court
Verna Bowling, Appellee-Plaintiff
February 13, 2024 Court of Appeals Case No. 23A-MI-1740 Appeal from the Hamilton Superior Court The Honorable Jonathan M. Brown, Judge Trial Court Cause No. 29D02-2103-MI-2211
Opinion by Judge Bailey Judges Brown and Foley concur.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 1 of 10 Bailey, Judge.
Case Summary [1] Joseph S. Kornman (“Father”) and Sirenia Kornman (“Adopted Mother”)
(collectively, “Parents”) appeal the trial court order granting Vera Bowling
(“Grandmother”) visitation with E.K. (“Child”). Parents raise two issues on
appeal, but we address only the dispositive issue of whether Grandmother had
standing to seek visitation with Child under the Grandparent Visitation Act
(“GVA”). Finding that she did, we affirm.
Facts and Procedural History [2] On October 12, 2015, Child was born out of wedlock to Father and Katy Lee
Scott (“Biological Mother”), who was Grandmother’s daughter. Biological
Mother and Child lived with Grandmother until approximately October of
2017. In September of 2017, Father and Adopted Mother married. In
November of 2017, in Madison Circuit Court 2, Father established his paternity
of Child and was awarded custody of her. The court granted Biological Mother
supervised parenting time with Child, and Grandmother was appointed as the
supervisor of the visits. On October 8, 2018, Father filed his notice that he had
moved his residence to Hamilton County.
[3] Biological Mother died on April 13, 2019. Thereafter, Father allowed
Grandmother to continue to visit with Child weekly, although he did not allow
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 2 of 10 over-night visits. Grandmother regularly visited with Child each week until
approximately February of 2020, when Father terminated all such visits.
[4] On February 6, 2020, Adopted Mother filed in Hamilton County Superior
Court 2 a petition to adopt Child. Adopted Mother did not serve notice of the
adoption action on Grandmother. On May 1, 2020, Grandmother filed in
Madison County Circuit Court 6 a petition for grandparent visitation with
Child. On May 21, 2020, Father filed his answer to Grandmother’s petition but
did not point out that an adoption action was pending in another county and
did not object to the venue or Grandmother’s standing.
[5] On May 27, Hamilton Superior Court 2 held a final hearing on Adopted
Mother’s petition to adopt Child. At that hearing, Adopted Mother informed
the court “that[,] despite the case in Madison County occurring with Verna
Bowling[,] that [sic] the adoption proceeding would not affect her grandparent
visitation request.” Tr. v. IV at 107. Hamilton Superior Court 2 granted the
adoption petition but notice of the adoption decree was not served on
Grandmother.
[6] On August 10, 2020, Adopted Mother filed a motion to intervene in
Grandmother’s Madison County action seeking grandparent visitation. That
date was when Grandmother first learned of the adoption action and order
involving Child. By agreement of the parties, Grandmother’s petition was set
for a hearing on March 23, 2021. However, on that date Madison Circuit
Court 6 transferred the grandparent visitation action to Hamilton Superior
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 3 of 10 Court 2 because “Hamilton County is the child’s county of residence.” App. v.
II at 8. On March 29, Hamilton Superior Court 2 accepted jurisdiction of the
grandparent visitation action under a new cause number.
[7] In July 2021, Parents filed a motion for summary judgment on the grounds that
Grandmother lacked standing to bring the grandparent visitation action, and
the court denied that motion. Parents subsequently sought permission to bring
an interlocutory appeal, which the court also denied. On September 20, 2021,
the court conducted a provisional hearing on Grandmother’s petition and took
judicial notice of the adoption proceedings involving Child. On November 9,
the court granted Grandmother temporary grandparent visitation pending a
final order. Thereafter, Parents made various motions, including a motion
asking the Judge to recuse himself, all of which were denied.
[8] In December 2021 and January 2022, Grandmother filed motions for contempt
on the grounds that Parents refused to allow her visitation with Child per the
court’s provisional order. Following hearings at which Parents did not deny the
allegations, the trial court twice found Parents in contempt of the provisional
visitation order. The trial court appointed a Guardian Ad Litem (“GAL”), who
investigated and filed a report on May 6, 2022, in which she recommended
Grandmother have grandparent visitation with Child. Parents objected to the
GAL appointment and moved to strike the report; the trial court denied the
motion.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 4 of 10 [9] A final hearing on Grandmother’s petition for visitation was held over the
course of five days between September 16, 2022, and January 11, 2023. On
July 10, 2023, the trial court issued Findings of Fact and Conclusions of Law in
which it held that Grandmother had standing to bring her claim under the
GVA, granted Grandmother’s petition for visitation with Child, and ordered
Parents to pay Grandmother $20,000 in attorney fees incurred in addressing
Parents’ “spurious and wasteful litigation tactics.” Appealed Order at 24. This
appeal ensued.
Discussion and Decision Standard of Review [10] Parents challenge the grandparent visitation order on the grounds of standing.
In that order, the trial court issued findings of fact and conclusions thereon. On
appeal of such an order, we generally review for clear error, employing a two-
tiered standard of review. See, e.g., M.G. v. S.K., 162 N.E.3d 544, 547 (Ind. Ct.
App. 2020). However, where an appeal raises only questions of law, such as
standing and statutory interpretation, our review is de novo. See, e.g., Ehrlich v.
Starke Solar, LLC, 219 N.E.3d 749, 755 (Ind. Ct. App. 2023) (reviewing issue of
standing), trans. denied; Mellowitz v. Ball State University, 221 N.E.3d 1214, 1220
(Ind. 2023) (reviewing issue of statutory interpretation). “If a statute is clear
and unambiguous, we do not apply any rules of construction other than giving
effect to the plain and ordinary meaning of the language.” Jocham v. Sutliff, 26
N.E.3d 82, 85 (Ind. Ct. App. 2015) (quotation and citation omitted).
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 5 of 10 Grandparent Visitation Act [11] Grandparents historically had no common-law right to visitation with their
grandchildren. Matter of E.H., 121 N.E.3d 594, 596 (Ind. Ct. App. 2019). The
GVA was enacted in 1982 and provides the sole basis for grandparents to seek
visitation with their grandchildren. H.P. v. G.F., 210 N.E.3d 1286, 1288 (Ind.
Ct. App. 2023). Because the GVA was enacted in derogation of the common
law, it must be strictly construed.
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IN THE
Court of Appeals of Indiana Joseph S. Kornman and Sirenia Kornman, FILED Appellants Feb 13 2024, 9:10 am
CLERK v. Indiana Supreme Court Court of Appeals and Tax Court
Verna Bowling, Appellee-Plaintiff
February 13, 2024 Court of Appeals Case No. 23A-MI-1740 Appeal from the Hamilton Superior Court The Honorable Jonathan M. Brown, Judge Trial Court Cause No. 29D02-2103-MI-2211
Opinion by Judge Bailey Judges Brown and Foley concur.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 1 of 10 Bailey, Judge.
Case Summary [1] Joseph S. Kornman (“Father”) and Sirenia Kornman (“Adopted Mother”)
(collectively, “Parents”) appeal the trial court order granting Vera Bowling
(“Grandmother”) visitation with E.K. (“Child”). Parents raise two issues on
appeal, but we address only the dispositive issue of whether Grandmother had
standing to seek visitation with Child under the Grandparent Visitation Act
(“GVA”). Finding that she did, we affirm.
Facts and Procedural History [2] On October 12, 2015, Child was born out of wedlock to Father and Katy Lee
Scott (“Biological Mother”), who was Grandmother’s daughter. Biological
Mother and Child lived with Grandmother until approximately October of
2017. In September of 2017, Father and Adopted Mother married. In
November of 2017, in Madison Circuit Court 2, Father established his paternity
of Child and was awarded custody of her. The court granted Biological Mother
supervised parenting time with Child, and Grandmother was appointed as the
supervisor of the visits. On October 8, 2018, Father filed his notice that he had
moved his residence to Hamilton County.
[3] Biological Mother died on April 13, 2019. Thereafter, Father allowed
Grandmother to continue to visit with Child weekly, although he did not allow
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 2 of 10 over-night visits. Grandmother regularly visited with Child each week until
approximately February of 2020, when Father terminated all such visits.
[4] On February 6, 2020, Adopted Mother filed in Hamilton County Superior
Court 2 a petition to adopt Child. Adopted Mother did not serve notice of the
adoption action on Grandmother. On May 1, 2020, Grandmother filed in
Madison County Circuit Court 6 a petition for grandparent visitation with
Child. On May 21, 2020, Father filed his answer to Grandmother’s petition but
did not point out that an adoption action was pending in another county and
did not object to the venue or Grandmother’s standing.
[5] On May 27, Hamilton Superior Court 2 held a final hearing on Adopted
Mother’s petition to adopt Child. At that hearing, Adopted Mother informed
the court “that[,] despite the case in Madison County occurring with Verna
Bowling[,] that [sic] the adoption proceeding would not affect her grandparent
visitation request.” Tr. v. IV at 107. Hamilton Superior Court 2 granted the
adoption petition but notice of the adoption decree was not served on
Grandmother.
[6] On August 10, 2020, Adopted Mother filed a motion to intervene in
Grandmother’s Madison County action seeking grandparent visitation. That
date was when Grandmother first learned of the adoption action and order
involving Child. By agreement of the parties, Grandmother’s petition was set
for a hearing on March 23, 2021. However, on that date Madison Circuit
Court 6 transferred the grandparent visitation action to Hamilton Superior
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 3 of 10 Court 2 because “Hamilton County is the child’s county of residence.” App. v.
II at 8. On March 29, Hamilton Superior Court 2 accepted jurisdiction of the
grandparent visitation action under a new cause number.
[7] In July 2021, Parents filed a motion for summary judgment on the grounds that
Grandmother lacked standing to bring the grandparent visitation action, and
the court denied that motion. Parents subsequently sought permission to bring
an interlocutory appeal, which the court also denied. On September 20, 2021,
the court conducted a provisional hearing on Grandmother’s petition and took
judicial notice of the adoption proceedings involving Child. On November 9,
the court granted Grandmother temporary grandparent visitation pending a
final order. Thereafter, Parents made various motions, including a motion
asking the Judge to recuse himself, all of which were denied.
[8] In December 2021 and January 2022, Grandmother filed motions for contempt
on the grounds that Parents refused to allow her visitation with Child per the
court’s provisional order. Following hearings at which Parents did not deny the
allegations, the trial court twice found Parents in contempt of the provisional
visitation order. The trial court appointed a Guardian Ad Litem (“GAL”), who
investigated and filed a report on May 6, 2022, in which she recommended
Grandmother have grandparent visitation with Child. Parents objected to the
GAL appointment and moved to strike the report; the trial court denied the
motion.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 4 of 10 [9] A final hearing on Grandmother’s petition for visitation was held over the
course of five days between September 16, 2022, and January 11, 2023. On
July 10, 2023, the trial court issued Findings of Fact and Conclusions of Law in
which it held that Grandmother had standing to bring her claim under the
GVA, granted Grandmother’s petition for visitation with Child, and ordered
Parents to pay Grandmother $20,000 in attorney fees incurred in addressing
Parents’ “spurious and wasteful litigation tactics.” Appealed Order at 24. This
appeal ensued.
Discussion and Decision Standard of Review [10] Parents challenge the grandparent visitation order on the grounds of standing.
In that order, the trial court issued findings of fact and conclusions thereon. On
appeal of such an order, we generally review for clear error, employing a two-
tiered standard of review. See, e.g., M.G. v. S.K., 162 N.E.3d 544, 547 (Ind. Ct.
App. 2020). However, where an appeal raises only questions of law, such as
standing and statutory interpretation, our review is de novo. See, e.g., Ehrlich v.
Starke Solar, LLC, 219 N.E.3d 749, 755 (Ind. Ct. App. 2023) (reviewing issue of
standing), trans. denied; Mellowitz v. Ball State University, 221 N.E.3d 1214, 1220
(Ind. 2023) (reviewing issue of statutory interpretation). “If a statute is clear
and unambiguous, we do not apply any rules of construction other than giving
effect to the plain and ordinary meaning of the language.” Jocham v. Sutliff, 26
N.E.3d 82, 85 (Ind. Ct. App. 2015) (quotation and citation omitted).
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 5 of 10 Grandparent Visitation Act [11] Grandparents historically had no common-law right to visitation with their
grandchildren. Matter of E.H., 121 N.E.3d 594, 596 (Ind. Ct. App. 2019). The
GVA was enacted in 1982 and provides the sole basis for grandparents to seek
visitation with their grandchildren. H.P. v. G.F., 210 N.E.3d 1286, 1288 (Ind.
Ct. App. 2023). Because the GVA was enacted in derogation of the common
law, it must be strictly construed. E.H., 121 N.E.3d at 596.
[12] Indiana Code Section 31-17-5-1 provides, in relevant part, that a child’s
grandparent may seek visitation under the GVA if the child’s parent is deceased
or, with some exceptions not applicable here, the child was born out of
wedlock. The petition for grandparent visitation “must be filed prior to the date
a decree of adoption is entered.” Ind. Code § 31-17-5-3(b). Such an action
must be filed in “a circuit, superior or probate court of the county in which the
child resides.…” I.C. § 31-17-5-4(1). The trial court may grant the petition if it
finds that grandparent visitation is in the child’s best interests. I.C. § 31-17-5-2.
Grandparent visitation rights awarded by a court “survive the adoption of the
child … by … [a] stepparent.” I.C. § 31-17-5-9.
Standing under the GVA [13] The trial court awarded visitation rights to Grandmother, finding that such
visitation was in Child’s best interests. Parents do not challenge that decision
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 6 of 10 on the merits. Instead, they contend that Grandmother did not have standing 1
to seek visitation under the GVA, and, therefore, the trial court’s visitation
order is “void ab initio.” Appellant’s Br. at 5.
[14] Grandmother is the maternal grandparent of Child, whose biological mother
died. As the grandparent of a child whose parent is deceased, Grandmother
had standing under the terms of the GVA to file a lawsuit seeking visitation
with Child. I.C. § 31-17-5-1(a). However, Parents contend Grandmother lost
her standing under the GVA by filing her petition for visitation after Adopted
Mother filed her adoption action but before the adoption decree was issued.
We disagree. The plain language of the GVA provides that a grandparent must
file a petition for visitation prior to the date a decree of adoption is entered, and
that is what Grandmother did. See I.C. § 31-17-5-3(b); see also Romero v. McVey,
167 N.E.3d 361, 366 (Ind. Ct. App. 2021) (noting the grandparent visitation
action was allowed to proceed where an adoption proceeding already had
begun but had not yet resulted in a decree). If Grandmother had filed the
1 In their briefs, Parents repeatedly conflate the issues of standing, subject matter jurisdiction, and venue. Subject matter jurisdiction is the power of a court to hear and determine a particular class of cases, and it is derived from statute or the constitution. E.g., DSG Lake, LLC v. Petalas, 156 N.E.3d 677, 689 (Ind. Ct. App. 2020), trans. denied. Standing, on the other hand, “refers to the question of whether a party has an actual demonstrable injury for purposes of a lawsuit[,]”and it does not “implicate[] subject matter jurisdiction.” Fish v. 2444 Acquisitions, LLC, 46 N.E.3d 1261, 1265 (Ind. Ct. App. 2015), trans. denied. Venue “connotes the proper situs for trial of an action,” Cabanaw v. Cabanaw, 648 N.E.2d 694, 697 (Ind. Ct. App. 1995), and “[t]he filing of a case in a county in which venue does not properly reside does not divest the trial court of subject matter jurisdiction,” In re Adoption of L.T., 9 N.E.3d 172, 177 (Ind. Ct. App. 2014). Here, there is no question that both the Madison County and Hamilton County courts had subject matter jurisdiction over the grandparent visitation action, as the GVA grants “circuit, superior or probate court[s]” the power to hear and determine that class of cases. I.C. § 31-17-5-4(1). Below, we address the separate issues of standing and venue.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 7 of 10 visitation petition after the adoption decree was entered, she arguably would
have lacked standing.2 See, e.g., Jocham, 26 N.E.3d at 86 (finding grandparent
lacked standing to seek visitation under the GVA where she had failed to even
pursue such rights before the time of the adoption decree). But Grandmother
filed her visitation petition in Madison County on May 1, 2020, almost one
month before the Hamilton County court entered the adoption decree.
Therefore, Grandmother had standing.3
[15] However, Parents argue that Grandmother did not file her petition before the
adoption decree was entered because her petition was originally filed in the
wrong county. As Parents point out, a petition seeking grandparent visitation
must be filed in the county in which the grandchild resides. I.C. § 31-17-5-4(1).
On May 1, Child resided in Hamilton County. Therefore, Hamilton County
was the proper venue for Grandmother’s visitation action, and Grandmother
filed in the wrong venue when she filed her petition in Madison County.
2 Although, in that case, there could have been successful equitable arguments that Parents were estopped from attacking Grandmother’s standing claim, such as the argument that they should not benefit from their own failure to give Grandmother notice of the adoption proceeding as required by law. See I.C. § 31-19-2.5- 3(a)(3) (providing that notice of adoption proceedings must be given to grandparents who are entitled to seek visitation under the GVA). 3 We note that Walker v. Knight, 119 N.E.3d 573 (Ind. Ct. App. 2019), cited by Parents, is inapplicable to the instant case. In Walker, the grandparents had argued that filing their visitation petition before the entry of an adoption decree gave them visitation rights; a panel of this Court noted that the GVA does not grant visitation rights but only the right to seek visitation rights by filing an action for the same. 119 N.E.3d at 577- 78. Here, Grandmother does not argue that her petition under the GVA gave her visitation rights, only the right to seek visitation. And the fact that she did so before the entry of an adoption decree gave her standing.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 8 of 10 [16] Parents assert, without supporting legal authority,4 that a grandparent visitation
action is not “commenced” when it is filed in the wrong venue. Appellant’s Br.
at 32. According to Parents’ theory, Grandmother never “commenced” her
grandparent visitation action until her petition was transferred to Hamilton
County on March 29, 2021, i.e., after the date the adoption decree was entered.
Id. However, the trial rules specifically provide that, when an action is filed in
an improper venue, “the court in which such action is filed shall not then
dismiss the action but shall order the action transferred to the court in which it
should have been filed.” Ind. Trial Rule 75(B)(1). Moreover, “the action shall
be deemed commenced as of the date of filing the action in the original court.” T.R.
75(B)(2) (emphasis added). Thus, Grandmother’s grandparent visitation action
was deemed commenced when she filed it in Madison County on May 1, 2020,
almost a month before the adoption decree was entered. See id.
Conclusion [17] Because Grandmother filed her grandparent visitation action before the date of
the adoption decree, the trial court did not err when it ruled that she had
standing to bring the action under the GVA. 5 See I.C. § 31-17-5-3(b). The
4 Hammons v. Jenkins-Griffith, 764 N.E.2d 303 (Ind. Ct. App. 2002), cited by Parents, is inapplicable as it involved an alleged grandparent visitation petition that failed to comply with the statutorily-required form of such a petition; it did not involve a petition filed in the wrong venue or the consequences thereof. 764 N.E.2d at 306. 5 Because we rule that Grandmother has standing, we do not address Parents’ claim that Grandmother should pay the attorney fees they “incurred after [Grandmother] was made aware she lacked standing.” Appellant’s Br. at 5.
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 9 of 10 original filing in the wrong venue did not affect Grandmother’s standing under
the GVA. We affirm.
[18] Affirmed.
Brown, J., and Foley, J. concur.
ATTORNEYS FOR APPELLANT Jack M. Freedman Michael E. Michaelis, II Freedman Law, P.C. Fishers, Indiana
ATTORNEY FOR APPELLEE Amy O. Carson Massillamany Jeter & Carson LLP Fishers, Indiana
Court of Appeals of Indiana | Opinion 23A-MI-1740 | February 13, 2024 Page 10 of 10