ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DEBRA VOLTZ-MILLER PETER L. ROCKAWAY
South Bend, Indiana Plymouth, Indiana
COURT OF APPEALS OF INDIANA
IN RE THE GUARDIANSHIP OF )
Minor Child )
PHILLIP E. CAROTHERS and )
SHIRLEY D. CAROTHERS, )
vs. ) No. 50A03-0007-CV-248
RICHARD O. ROSE, )
APPEAL FROM THE MARSHALL SUPERIOR COURT
The Honorable Robert O. Bowen, Judge
Cause No. 50D01-9808-GU-21
January 31, 2001
OPINION - FOR PUBLICATION
Phillip and Shirley Carothers appeal from the trial court’s order
modifying their visitation with K.T., who is the grandchild of Shirley
Carothers. We affirm.
The Carothers present three issues for our review, which we restate
1. Whether Richard Rose, K.T.’s natural father and custodial parent,
had standing to petition the trial court to modify their visitation;
2. Whether the trial court had jurisdiction of this case to enter an
order modifying their visitation when the guardianship pursuant to
which visitation had been ordered was closed; and
3. Whether the trial court had the authority to modify the visitation
Facts and Procedural History
K.T. was born to Jessica Thomas on November 29, 1997. Shirley
Carothers is Jessica’s mother. Jessica and K.T. resided with the Carothers
from the time of K.T.’s birth. In July 1998, Jessica left K.T. with the
Carothers and left Indiana. In August 1998, the Carothers petitioned the
Marshall Superior Court for appointment as guardians of K.T. Jessica
consented to the guardianship, and the Carothers were appointed K.T.’s
guardians in September 1998.
In October 1998, paternity of K.T. was established in Rose by an
order entered in Marshall Circuit Court. Thereafter, a petition was filed
in the guardianship by the Carothers’ seeking child support from Rose.
Rose also filed a petition in the guardianship seeking visitation with K.T.
Support and visitation orders were issued in the guardianship proceeding.
In May 1999, Rose petitioned to terminate the guardianship proceeding
and assume custody of K.T. The petition to terminate was denied at that
time, “subject to review by the Court at a later date.” R. 99. At a
review hearing in November 1999, the trial court terminated the Carothers’
guardianship of K.T. and placed her in the custody of Rose. The trial
court also made an order regarding the Carothers’ visitation rights with
K.T. R. 108-09.
In May 2000, Rose filed, in the court which had conducted the
guardianship proceedings and under the guardianship cause number, a
petition to modify the Carothers’ visitation as set forth in the trial
court’s November 1999 order. Pursuant to this petition, the Carothers’
visitation was subsequently modified to reduce the time the Carothers were
able to exercise visitation with K.T. The Carothers’ now appeal.
Discussion and Decision
The Carothers contend that Rose did not have standing to petition to
modify their visitation because his reason for seeking the modification was
that Thomas, K.T.’s mother, had recently reentered her life, and in giving
time to K.T. and Thomas for visitation and then observing the trial court’s
visitation order regarding the Carothers, his time with K.T. was being
compromised. As the Carothers’ correctly note, “standing refers to the
question of whether a party has an actual demonstrable injury for purposes
of a lawsuit,” Collard v. Enyeart, 718 N.E.2d 1156, 1159 (Ind. Ct. App.
1999), trans. denied, and “focuses generally upon the question whether the
complaining party is the proper person to invoke the Court’s power.” Pence
v. State, 652 N.E.2d 486, 488 (Ind. 1995) (quoting City of Indianapolis v.
Board of Tax Comm'rs, 261 Ind. 635, 638, 308 N.E.2d 868, 870 (1974)).
As K.T.’s custodial parent, Rose is, indeed, the proper person to
invoke the trial court’s power to modify the visitation arrangements
regarding K.T. Rose was not, as the Carothers allege, petitioning the
court on Thomas’ behalf. Visitation arrangements between Thomas and K.T.
had been addressed in the paternity cause of action. Although the reason
for Rose’s request may have ultimately involved Thomas, he was in fact
seeking relief on his own behalf, and therefore, did have standing to raise
the issue of modification.
II. Jurisdiction of the Case
The Carothers also contend that the trial court lacked jurisdiction of
this case because the guardianship, pursuant to which their visitation had
been granted, was closed. There are three types of jurisdiction: 1)
jurisdiction of the subject matter; 2) jurisdiction of the person; and 3)
jurisdiction of the particular case. Adler v. Adler, 713 N.E.2d 348, 352
(Ind. Ct. App. 1999). Subject matter jurisdiction refers to the power of a
court to hear and decide a particular class of cases. Id. When a court
lacks subject matter jurisdiction, its actions are void ab initio and have
no effect whatsoever. Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000).
A judgment entered by a court that lacks subject matter jurisdiction is
void and may be attacked at any time. Neese v. Kelley, 705 N.E.2d 1047,
1051 (Ind. Ct. App. 1999). Where lack of subject matter jurisdiction in
the original tribunal is apparent from the record, it is the duty of the
reviewing court to raise and determine the issue sua sponte. Town Council
of New Harmony v. Parker, 726 N.E.2d 1217, 1227 n.8 (Ind. 2000). By
contrast, jurisdiction of the case refers to the trial court’s right,
authority, and power to hear and decide a specific case within the class of
cases over which a court has subject matter jurisdiction. Sanders v.
Carson, 645 N.E.2d 1141, 1145 (Ind. Ct. App. 1995). A judgment rendered by
a court which lacks jurisdiction of the case is voidable, and requires a
timely objection, or the lack of jurisdiction over the case is considered
waived. Dixon v. Siwy, 661 N.E.2d 600, 608 n.10 (Ind. Ct. App. 1996).
Accordingly, a reviewing court is not obligated to raise sua sponte the
issue of jurisdiction of the case. Id.
Although we do believe that the trial court lacked jurisdiction of
this case due to the termination of the guardianship, any objection thereto
has been waived. The trial court lost jurisdiction over this case when it
closed the guardianship. There is no provision in the guardianship statute
for a trial court’s continuing jurisdiction over a closed guardianship.
See Ind. Code §§ 29-3-1-1 et seq. The Carothers status with respect to
K.T. once the guardianship was closed reverted to that of grandparents
only, and without a proper petition for visitation pursuant to the
Grandparent Visitation Act, see Ind. Code §§ 31-17-5-1 et seq., the trial
court erred in granting visitation privileges to the Carothers ancillary to
a guardianship which was simultaneously closed. See Matter of Guardianship
of Green, 525 N.E.2d 634, 636 (Ind. Ct. App. 1988) (holding that the only
circumstances in which a grandparent may seek visitation rights are those
enumerated in the Grandparent Visitation Act).
The Carothers arguably raised the issue of jurisdiction of the case at
the modification hearing when their counsel stated, “[I]t’s my
understanding that the guardianship was terminated. Therefore, without
reopening the guardianship I don’t understand how any hearing of this
nature could take place.” R. 131. Nonetheless, the Carothers waived any
objection to the trial court’s exercise of jurisdiction over this case by
failing to raise the issue at the earliest available opportunity: either
by filing a motion to correct errors or initiating an appeal in this court
with respect to the trial court’s November 1999 order. We recognize that
the Carothers had no incentive before now to raise the trial court’s lack
of jurisdiction with respect to the order granting them visitation with
K.T. because up to now, the trial court’s erroneous exercise of
jurisdiction has worked in their favor. However, it would be incongruous
to allow the Carothers to raise the issue only when it benefits them.
Accordingly, no appeal having been taken from the trial court’s initial
erroneous exercise of jurisdiction over this case, any objection thereto
has been waived.
III. Modification of Visitation
Finally, the Carothers contend that the trial court erred in
modifying their visitation because “multiple sources of authority exist
suggesting the proper result in this case is that the Carothers’ visitation
remains unchanged,” Brief of Appellant at 8, citing the Grandparent
Visitation Act, the De Facto Custodian statute, and third-party visitation
We find the Carothers’ position that their visitation could never be
modified to be untenable. In crafting an order pertaining to child custody
or visitation, the paramount concern is the best interest of the child.
Summerville v. Summerville, 679 N.E.2d 1344, 1348 (Ind. Ct. App. 1997). A
trial court may modify visitation when such change is in the child’s best
interest. Id. See also Ind. Code § 31-17-5-7. Thus, child custody and
visitation is always subject to modification.
Moreover, as far as the record discloses, the Carothers never even
petitioned for visitation; the trial court gratuitously entered a
visitation order when closing the guardianship. Thus, none of the
authority cited by the Carothers is directly applicable to this case, as
neither the Grandparent Visitation Act, nor the De Facto Custodian statute,
nor third-party visitation cases were relied upon in seeking or granting
visitation to the Carothers. To the extent the Carothers are entitled to
visitation with K.T. at all under the procedural circumstances of this
case, modification of that visitation is not precluded. As stated above,
the Grandparent Visitation Act, which would have been the appropriate
vehicle for granting visitation provides that an order granting visitation
rights may be modified whenever modification serves the best interests of
the child. Ind. Code § 31-17-5-7. A court’s order concerning visitation
will be reversed only for a manifest abuse of discretion. Summerville, 679
N.E.2d at 1348. On review, we will not reweigh evidence or reassess
witness credibility, and we consider only the evidence which supports the
trial court’s decision. Id.
In this case, the trial court heard evidence that a great many people
apparently love K.T. and wish to be a part of her life. In balancing the
competing interests of Rose, Thomas, Rose’s parents (the paternal
grandparents), and the Carothers, and faced with changed circumstances
since the original visitation order was entered, the trial court determined
that it would be appropriate to reduce K.T.’s court-ordered visitation with
the Carothers. We cannot say that this was an abuse of discretion. We
admire the Carothers’ wish to be a part of K.T.’s life, and express our
hope that the parties will continue what appears to be a spirit of
cooperation in raising K.T. However, there are a finite number of hours in
the day to be distributed among the various players, and the trial court
did not err in reducing the number of hours of visitation to which the
Carothers are entitled by court order in order to facilitate Rose and
Thomas establishing and/or maintaining a relationship with their daughter.
Rose, as custodial parent, had standing to seek modification of the
visitation order. Despite the trial court’s lack of jurisdiction to enter
a visitation order in a closed guardianship, any objection thereto has been
waived. The trial court properly modified the Carothers’ visitation with
K.T. Accordingly, the judgment of the trial court is affirmed.
RILEY, J., and DARDEN, J., concur.
 In Green, the grandmother was appointed guardian of her
grandchild because the mother was underage. When the guardianship was
terminated after the mother turned eighteen, the trial court entered an
order granting the grandmother visitation. Subsequently, the mother filed
a motion to terminate the visitation order, which the trial court granted.
The grandmother appealed, raising issues about both the termination of the
guardianship and the termination of her visitation. This court held that
the order terminating the guardianship and granting visitation rights was a
final appealable order, and because the grandmother failed to appeal that
order, any issues relating to termination of the guardianship were no
longer reviewable. Thus, although it may appear on the face of it that
Green supports the simultaneous termination of a guardianship and grant of
visitation rights to the guardian, that issue was not actually before the
court. Moreover, this court held in Green that the trial court properly
set aside the visitation order altogether because it had not been made in
compliance with the Grandparent Visitation Act. Because Rose did not seek
any such relief from the trial court, we do no more herein than address the
propriety of the trial court’s modification; however, we, too, believe that
the Grandparent Visitation Act was the exclusive vehicle through which the
Carothers should have been granted visitation with K.T.
 We note that Rose also failed to perfect an appeal of the trial
court’s erroneous exercise of jurisdiction over this case. By failing to
do so, and then by affirmatively seeking relief from the trial court, he,
too, has waived any objection to the trial court’s exercise of jurisdiction
over this case.