Walker v. West

665 N.E.2d 586, 1996 Ind. LEXIS 53, 1996 WL 278249
CourtIndiana Supreme Court
DecidedMay 28, 1996
Docket64S03-9602-CV-178
StatusPublished
Cited by33 cases

This text of 665 N.E.2d 586 (Walker v. West) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. West, 665 N.E.2d 586, 1996 Ind. LEXIS 53, 1996 WL 278249 (Ind. 1996).

Opinion

ON PETITION TO TRANSFER

DICKSON, Justice.

This case is before us on a Petition to Transfer 1 from an order issued by the Court of Appeals dismissing an appeal of the trial court's denial of a Petition for Grandparent Visitation Rights.

The appellants, Herschel Walker and La-Verne Walker (the Walkers) are the paternal grandparents of Jamie Lynn West (Jamie). Jamie's mother, Lynn West, was married to John Walker and, following the dissolution of their marriage in 1989, was granted custody of Jamie. Lynn married Kendal West in 1991, and John Walker's parental rights were terminated in late 1992 in connection with proceedings resulting in Kendall's adoption of Jamie. The Walkers promptly thereafter filed a Petition for Court Ordered Grandparent Visitation pursuant to Indiana Code § 31-1-11.7-8, which provides:

(a) Visitation rights may be granted when the court determines that it is in the best interests of the child.
(b) In determining the best interests of the child under this section, the court may consider whether a grandparent has had, or has attempted to have, meaningful contact with the child.

Ind.Code §$ 31-1-11.7-8. Following the appointment of a guardian ad-litem, pre-hear-ing discovery, the Walkers' motion for findings, and an evidentiary hearing, the trial court entered judgment denying the petition for visitation. In commencing their appeal, the Walkers filed a praccipe directing that the Record of Proceedings contain the various proposed findings of fact filed on behalf of the Walkers, the Wests, and the guardian ad litem, and the findings, conclusions, order and judgment issued by the trial court. The Record was prepared and filed accordingly.

Jamie's mother and the court-appointed guardian ad-litem each filed a Motion to Dismiss the appeal because the appellants failed to include in the Record of Proceedings a transcript of the evidence. See Ind.Appellate Rule 7.2(A)(8). The appellees did not exercise their right to request "the transmission of some or all [of] the other parts of the record." See Ind.Appellate Rule 7.2(B). The Court of Appeals dismissed the appeal, and the grandparents thereafter filed a Motion to Reinstate, with a supporting memorandum acknowledging the duty of an appellant to present an adequate record for review but arguing that they had complied with Appellate Rule 7.2(B), which requires the exclusion of unnecessary documents from the record on appeal. The grandparents argued that the transeript of evidence was not needed to address the appellate claim presented, asserting that they accepted the findings of fact made by the trial court and were argu *588 ing only that the trial court erred as a matter of law in ruling against them. The grandparents' claim on appeal is that the trial court impermissibly focused on their relationship with Jamie's mother, rather than on their relationship with Jamie. The Court of Appeals denied reinstatement, and the grandparents seek transfer.

The Walkers continue to urge that, because there is no challenge to the trial court's findings of fact, the appellate review entails determining only whether the findings support the judgment and whether the conclusions of law and the judgment are clearly erroneous based upon the findings.

When the trial court enters special findings of fact and conclusions of law pursuant to a motion by a party, this court employs a two-tiered standard of review: First, we must determine whether the findings support the judgment. The see-ond inquiry is whether the conclusions of law and [the] judgment are clearly erroneous based on the facts as found by the trial court. However, where, as here, neither party challenges the court's findings, the parties are bound by the findings of fact as being fully and correctly found by the trial court. Thus, our review is limited to the second inquiry, ie., whether the conclusions of law and judgment are clearly erroneous.

American Cyanamid Co. v. Stephen, 623 N.E.2d 1065, 1070 (Ind.Ct.App.1993) (citations omitted).

We grant transfer to encourage litigants and reviewing courts to employ efficient appeal procedures. This Court has recently visited this issue:

Generally, a transeript of the evidence and proceedings at trial must be included in the record for it to be deemed sufficient. Although not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.
Our experience tends to confirm that the expense of preparing transcriptions often runs in the hundreds or thousands of dollars....

Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind.1992) (citations omitted). Appellate Rule 7.2(B) directs that "[njeither party shall request parts of the record or a transcript of the proceedings which are not needed for the issues to be asserted on appeal." App.R. 7.2(B). As noted by the Court of Appeals in Jackson v. State, 643 N.E.2d 905, 906 (Ind.Ct.App.1994), denial of habeas corpus aff'd sub. nom. Jackson v. Duckworth, 79 F.3d 1150 (7th Cit.1996), the rules require an appellant to transmit "only those parts of the record that are necessary for review of the issues to be asserted upon appeal." Id.

To encourage litigants to utilize and reviewing courts to permit the utilization of procedures that minimize expense and administrative burdens for the parties and the court system, we grant transfer and address the issues presented by the grandparents' appeal from the trial court judgment. 2

In their appeal, the grandparents contend that the trial court erred in basing its determination of the child's best interests upon their relationship with Jamie's mother, rather than upon their relationship with Jamie, and in failing to give proper consideration to its own finding that Jamie's mother was responsible for the loss of their grandparent-grandehild relationship with Jamie. The grandparents place substantial reliance upon Moses v. Cober, 641 N.E.2d 668 (Ind.Ct.App.1994), which held that the determination of a child's best interests in a grandparent visitation case must be based upon the relationship between the grandparents and the grandchild, not that between the grandparents and the custodial parent. Moses, 641 N.E.2d at 672. This view, however, was expressly rejected in Daugherty v. Ritter, 646 N.E.2d 66 (Ind.Ct.App.1995), which was approved and adopted by this Court in Daugherty v. Ritter, 652 N.E.2d 502 (Ind.1995).

*589

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Bluebook (online)
665 N.E.2d 586, 1996 Ind. LEXIS 53, 1996 WL 278249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-west-ind-1996.