Summary
modifying instructions to the trial court on rehearing, giving the court the opportunity to enter an order with findings that would support the parenting-time restriction or enter an 8 order without a restriction
Summary of this case from S.S. v. C.S (In re G.S.)Opinion
No. 71A03-0112-JV-431
August 16, 2002
APPEAL FROM THE ST. JOSEPH PROBATE COURT. The Honorable Peter J. Nemeth, Judge. The Honorable Jane Woodward Miller, Magistrate. Cause No. 71J01-9906-JP-592
Fred R. Hains, Joel Gabrielse, South Bend, Indiana, Attorneys for Appellant.
Robert J. Palmer, May Oberfell Lorber, South Bend, Indiana, Attorney for Appellee.
OPINION ON REHEARING
In V.A.M.C., we affirmed the portion of the trial court's judgment that granted sole custody of V.A.M.C. to Mother, and we reversed the portion of the trial court's judgment that restricted Father's visitation with V.A.M.C. by prohibiting Father from allowing his fiance´e, Rebecca Rohrs, to have contact with V.A.M.C. In re V.A.M.C., 768 N.E.2d 990, 1001-1002 (Ind.Ct.App. 2002). We reversed the visitation restriction because "the trial court did not specifically find that V.A.M.C.'s emotional well-being or physical health would be endangered by Rohrs's presence" as is required before imposing a visitation restriction under Ind. Code § 31-14-14-1. Id. at 1001.
Mother filed a petition for rehearing in which she argued, in part, that we erred by reversing the trial court's visitation restriction without remanding to give the trial court the opportunity to enter appropriate findings to support such a restriction. We agree that the trial court should have the opportunity to enter appropriate findings, if in fact the Record could support such findings. See Payne v. State, 531 N.E.2d 216, 218-219 (Ind.Ct.App. 1998) (granting rehearing for the limited purpose of remanding to the trial court for specific findings rather than simply reversing the trial court's judgment). Consequently, we grant rehearing for the limited purpose of remanding this cause to the trial court with instructions that on remand the trial court may either: (1) enter an order containing findings sufficient to support a visitation restriction under Ind. Code § 31-14-14-1 based on the evidence already on the Record, or (2) enter an order that does not contain a visitation restriction. In all other respects, we affirm our original opinion.
Instructions on remand modified.
BROOK, C. J. concurs.
FRIEDLANDER, J. would deny rehearing without opinion.