Opinion
NO. 2017-CA-000619-ME
02-09-2018
BRIDGETT HIGDON APPELLANT v. DAVID HIGDON APPELLEE
BRIEF FOR APPELLANT: Stephen G. Hopkins Hardinsburg, Kentucky BRIEF FOR APPELLEE: Earlene Whitaker Wilson Leitchfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 16-CI-00061 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, JONES, AND MAZE, JUDGES. JONES, JUDGE: Appellant, Bridgett Higdon, appeals an order of the Grayson Circuit Court approving and adopting a Domestic Relations Commissioner's Report granting Appellee, David Higdon, grandparent visitation. After a review of the record and applicable law, we vacate and remand to the Grayson Circuit Court.
I. BACKGROUND
S.L.H. was born to Bridgett Higdon ("Danielle") and Curtis Roof in November of 2009. Danielle and Curtis have never been married. Curtis's paternity has been established; however, Danielle was awarded temporary sole custody of S.L.H. in 2013 and Curtis has no visitation rights with S.L.H. While Curtis was a party to the proceedings below, he is not a party to this appeal.
David Higdon is Danielle's father and S.L.H's grandfather. While Danielle and David have always had a contentious relationship, David was present at S.L.H.'s birth and, until January of 2015, saw S.L.H. on a regular basis. When S.L.H. was an infant, Danielle would take S.L.H. to David's house with her so that the two could visit. As S.L.H. grew older, she began spending every other weekend at David's home. This arrangement arose in part because Danielle was required to work during some weekends and in part out of David's desire to spend time with S.L.H. S.L.H. and Danielle would also go to David's home for most holidays. In January of 2015, David and Danielle had a heated argument following David catching Danielle lying to him about a gift he had given to S.L.H. Following that argument, Danielle cut off all contact with David and refused to let him spend time with S.L.H.
After several unsuccessful attempts to reconcile with Danielle, David filed a petition for grandparent visitation with the court in March of 2016. Danielle opposed the petition and moved to have it dismissed. In July of 2016, Danielle and David entered a temporary agreed order, which granted David one overnight visit with S.L.H. per month. The Domestic Relations Commissioner ("DRC") held an evidentiary hearing in September of 2016. David, Danielle, and Curtis were all present at the hearing.
David testified that he and S.L.H. had a close bond. He stated that, prior to his and Danielle's falling out, he and S.L.H. enjoyed doing many activities together, such as swimming in the pool, playing in the yard, going to town events, and going to the zoo. David exhibited pictures of him and S.L.H. participating in some of these activities. David stated that S.L.H. had clothes and shoes that were kept at his house. S.L.H. also has a bedroom at David's house; however, she has never stayed in that bedroom because David fixed the room for S.L.H. shortly before he and Danielle got in the fight. David indicated that he lives in his home with his wife and his twelve-year-old step-granddaughter, of whom he and his wife have full custody. He stated that S.L.H. and his step-granddaughter had a good relationship and were more like sisters than cousins.
David noted that he and Danielle did not get along well. He stated that Danielle had brought up issues with S.L.H. staying at his home in the past, such as S.L.H. being constipated after staying at David's house and S.L.H. returning to Danielle's home with food on her clothing on one occasion. David expressed his belief that S.L.H. ate a healthy diet when at his home and stated that he had never noticed S.L.H. having bathroom issues when with him. He stated that part of the reason he purchases and keeps clothes for S.L.H. at his home now is to ensure that S.L.H. does not dirty the clothes Danielle has put her in and to avoid future conflicts.
David acknowledged that he had no evidence to show that his absence from S.L.H.'s life had caused her distress, but contended that he would have no way of knowing this as he had been denied all contact with her. David stated that his reunion with S.L.H., following entry of the agreed order, had been emotional. S.L.H. ran to him and jumped into his arms. He stated that S.L.H. was always happy when at his home and that he believed that Danielle was wrong in her belief that it was not in S.L.H.'s best interest to spend time with him.
David's wife, Renee Higdon, testified. Renee's testimony largely mirrored David's. Renee expressed her belief that S.L.H. and David had a close bond and that S.L.H. adored David. Renee acknowledged that Danielle had discussed her concern that S.L.H. became constipated when she stayed with David and Renee; however, Renee said that S.L.H. ate a normal diet while in her and David's care and that S.L.H. had never complained to her about being constipated. Renee stated that she believed S.L.H. would be better off having David in her life and that she did not think S.L.H. having a relationship with David would worsen David and Danielle's relationship.
Next, Curtis testified on David's behalf. Curtis acknowledged that he no longer has any involvement in S.L.H.'s life. He stated that he had made several attempts to spend time with S.L.H., but that Danielle had not allowed him to do so. Curtis stated that, when he and Danielle had been in a relationship, they went to David's house socially on several occasions. Curtis testified that Danielle told him she believed it was in S.L.H.'s best interest to spend time with David, and would even allow David to spend time with S.L.H. instead of spending time with Curtis. He said that he believed S.L.H. and David had a great relationship. Curtis stated than when he was still involved in S.L.H.'s life, S.L.H. would talk to him about the time she spent with David. Curtis testified that he believed it was in S.L.H.'s best interest to spend time with David. He stated that he thought it would negatively impact S.L.H. to have her routine disrupted by discontinuing her time with David.
Curtis and Danielle had been involved in a previous court case concerning custody of S.L.H., but that record is not before this Court. Based on the testimony presented at the evidentiary hearing in this case, it appears that Curtis was directed to petition the court for visitation with S.L.H. after he completed anger management classes. Curtis acknowledged that he had not done so.
Danielle testified on her own behalf. She stated that she lived with her paramour, S.L.H., and her son, S.L.H.'s half-brother. Danielle testified to concerns she had with S.L.H. continuing to visit David. She stated that S.L.H.'s teacher had contacted her about S.L.H. spending too much time in the restroom and complaining about being constipated. Danielle stated that she believed this was caused by David and Renee allowing S.L.H. to eat junk food while at their home, as all of S.L.H.'s constipation issues ceased when she stopped spending time with David. Danielle stated that S.L.H. has exhibited negative behavior after visiting with David. Danielle caught S.L.H. taking money from her purse and lying about doing so. Danielle said that S.L.H. had observed her cousin doing this with Renee and David, and picked the habit up from her. S.L.H. had also been requesting to wear makeup and have her hair highlighted, which Danielle believed she would not be doing if she did not spend time with her cousin at David's home. Danielle testified that David had signed S.L.H. up for activities without first receiving Danielle's permission. Additionally, Danielle was concerned that David allowed S.L.H. to see her paternal grandmother at Wal-Mart, where the grandmother works, when Danielle had expressly indicated that she did not want S.L.H. to have any contact with Curtis's family. Danielle testified that S.L.H. had informed her that David instructed S.L.H. not to tell Danielle when they saw S.L.H.'s paternal grandmother.
Danielle testified that she believed David wanted visitation with S.L.H. because he wanted control over how S.L.H. was parented. She stated that most of her and David's problems stemmed from David trying to tell her how to live her life and how to parent S.L.H. While Danielle acknowledged that David and S.L.H. previously had a close relationship, she stated her belief that it was in S.L.H.'s best interest to no longer have contact with David. Danielle testified that S.L.H. had not mentioned David since their contact had been cut off, except to point out the street where he lives when they drove past it. Danielle admitted that, if she is having personal problems with someone, she will not let them see S.L.H. Specifically, Danielle recalled an instance when she had been in a fight with her own mother and had not allowed S.L.H. to visit with her for six months. Danielle stated that she thought that this was appropriate because she believes that if someone treats her badly, it is likely that they will treat S.L.H. badly as well.
Danielle's mother, Karen Higdon, also testified on Danielle's behalf. Karen acknowledged that she no longer has any contact with David and is unaware if he and S.L.H. had a close bond. Reflecting on the time during which she was married to David, Karen described him as difficult, controlling, manipulative, and verbally and emotionally abusive. Karen testified that David had anger issues and had been physically violent towards their children. She stated that she believed David was seeking visitation with S.L.H. because he wanted control and that she did not think that David would follow rules concerning S.L.H. if Danielle were to give them. Karen stated that she believed S.L.H.'s stability in living arrangements and schooling would be negatively affected if David were awarded visitation, but she did not expound on these beliefs.
The DRC issued its report recommending that David be granted grandparent visitation on March 9, 2017. In the report, the DRC looked to the factors delineated in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), and concluded that David had "established by clear and convincing evidence that [he] and [S.L.H.] share a close bond and have a good relationship." R. 89. Accordingly, the DRC found that Danielle had not been acting in S.L.H.'s best interest by abruptly ending S.L.H.'s relationship with David. Danielle moved the circuit court to consider her objections to the DRC report on March 13, 2017. Therein, Danielle contended that the DRC failed to consider relevant evidence, failed to address and apply the Walker factors, and failed to apply the appropriate standard of proof. Following a hearing on Danielle's objections, which is not of record, the circuit court adopted and confirmed the DRC report on March 27, 2017.
This appeal followed.
II. STANDARD OF REVIEW
We review a family court's factual findings for clear error. CR 52.01. Findings supported by substantial evidence are not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The family court's interpretation and application of the law is reviewed de novo. Hill v. Thompson, 297 S.W.3d 892, 895 (Ky. App. 2009).
Kentucky Rules of Civil Procedure.
III. ANALYSIS
Under KRS 405.021, a court may grant reasonable visitation rights to grandparents if it determines that it is in the best interest of the child to do so. However, while KRS 405.021 only recites a best interest standard, a court's decision to grant grandparent visitation is impacted by constitutional concerns. "[U]nder the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody, and control of their children." Walker, 382 S.W.3d at 868 (citing Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). "Troxel recognized that 'there is a presumption that fit parents act in the best interest of their children[,]' and that 'if a fit parent's decision . . . becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.'" Nein v. Columbia, 517 S.W.3d 492, 496 (Ky. App. 2017) (quoting Troxel, 530 U.S. at 68-70, 120 S.Ct. at 2061-63). "So a fit parent's wishes are not just a factor to consider in determining what is in the child's best interest." Walker, 382 S.W.3d at 870. "The constitutional presumption that a fit parent acts in the child's best interest is the starting point for a trial court's analysis under KRS 405.021(1)." Id. at 870-71.
Kentucky Revised Statutes. --------
To overcome the presumption that a parent is acting in the child's best interest by denying grandparent visitation, the grandparent seeking visitation must show, by clear and convincing evidence, "that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child's best interest." Id. at 871. If the grandparent cannot meet this burden, "parental opposition alone is sufficient to deny the grandparent visitation." Id. The Court in Walker set out eight factors a trial court can consider in determining whether grandparent visitation is in the child's best interest:
(1) the nature and stability of the relationship between the child and the grandparent seeking visitation;Id.
(2) the amount of time the grandparent and child spent together;
(3) the potential detriments and benefits to the child from granting visitation;
(4) the effect granting visitation would have on the child's relationship with the parents;
(5) the physical and emotional health of all the adults involved, parents and grandparents alike;
(6) the stability of the child's living and schooling arrangements;
(7) the wishes and preferences of the child; and
(8) the motivation of the adults participating in the grandparent visitation proceedings.
By itself, clear and convincing evidence of a loving relationship between a grandparent and child is insufficient to rebut the presumption that a parent is acting in the child's best interest. Id. at 872. "The grandparent must show something more - that the grandparent and child shared such a close bond that to sever contact would cause distress to the child." Id.
On appeal, Danielle contends that the trial court did not give the proper weight to her objection to grandparent visitation. She contends that David's case and the DRC report rely only on the close bond between David and S.L.H. and that David did not present clear and convincing evidence that Danielle is mistaken in her belief that it is not in S.L.H.'s best interest that David have visitation. We agree.
The DRC Report notes Danielle's objection to grandparent visitation in its findings of fact and recites all the Walker factors. However, the crux of the DRC Report focuses on the close relationship between David and S.L.H. and the generalized benefit that S.L.H. would receive from seeing her extended family. The only time the Report mentions the "clear and convincing evidence" standard is when stating that David had "clearly demonstrated by convincing evidence that [he] and [S.L.H.] share a close bond and have a good relationship." R. 89. This is not the correct standard. "If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumption that the parent is acting in the child's best interest." Walker, 382 S.W.3d at 872. While testimony and evidence did demonstrate that David and S.L.H. have a bond, there was nothing presented indicating that "[David] and [S.L.H.] shared such a close bond that to sever contact would cause distress to [S.L.H.]." Id.
In addressing the other Walker factors, the DRC Report states as follows:
[S.L.H.] is already receiving some visitation with [David]. Danielle did not testify to any negative impact the visitations are having on her and [S.L.H.'s] relationship. There were no issues presented involving the emotional or physical health of any party to the action . . . . There was no testimony to demonstrate [S.L.H.] is having issues with her academics or behaviors at school. [S.L.H.] did not testify and there was not the appointment of a GAL; however, the pictures and testimony demonstrated that [S.L.H.] enjoys spending time with [David].R. 90.
This is not an accurate summation of the testimony presented at the evidentiary hearing. Danielle did testify to negative impact on her and S.L.H.'s relationship, which she believed was caused by S.L.H. spending time at David's home. Danielle testified that she caught S.L.H. stealing money out of her purse and that S.L.H. told her that she had learned to do that from David's step-granddaughter. Danielle stated that, when S.L.H. returns home from David's house, she wants to "act like a teenager." Danielle also testified about S.L.H. frequently being constipated after visiting with David. Danielle told the court that S.L.H.'s teacher had contacted her about S.L.H. missing large portions of class time because she was trying to use the restroom.
The DRC Report also addressed David's motivation in seeking grandparent visitation and Danielle's motivation in discontinuing contact between David and S.L.H. The Report concluded that David was motivated by his love for S.L.H. and his hope that his relationship with S.L.H. could continue. It also concluded that Danielle had denied David contact with S.L.H. because of their dispute, but noted that David had continuously apologized to Danielle for the fight. In addressing the "motivation" factor, the Court in Walker stated as follows:
If the parent is motivated purely by spite or vindictiveness, this can be proof that the parent is acting out of self-interest rather than a concern for the child's best interest. It may also be the case that a parent is acting out of spite, but the best interest of the child is truly not served by granting grandparent visitation. So proof of vindictiveness on the parent's part does not automatically rebut the parental presumption.Walker, 382 S.W.3d at 872 (emphasis added). Danielle did testify that after she and David had their fight in January, she decided that David and S.L.H. should not spend time together anymore. She also explained her belief that if someone treats her badly, she generally will not allow them around S.L.H. because she does not want S.L.H. to be treated badly, and gave numerous other reasons for her not wanting S.L.H. to spend time with David. Even if Danielle is acting purely out of spite by denying David visitation with S.L.H., that alone is insufficient to rebut the presumption that Danielle is acting in S.L.H.'s best interest. Id.
The DRC Report fails to give sufficient weight to Danielle's objection to grandparent visitation. The entirety of David's case in support of grandparent visitation was based on the close relationship he has with S.L.H., his belief that Danielle is acting out of spite in denying him visitation with S.L.H., and his belief that S.L.H. should have contact with her paternal family and other extended family, despite Danielle's objections. This is insufficient to overcome the strong presumption that Danielle is acting in S.L.H.'s best interest. Further, the DRC Report does not use the correct standard of proof. It is not enough for David to demonstrate that he and S.L.H. have a close bond. He must prove, by clear and convincing evidence, that Danielle is clearly mistaken in her belief that grandparent visitation is not in S.L.H.'s best interest. The DRC Report did not find that David met this burden, yet it granted him the requested grandparent visitation. This was in error.
IV. CONCLUSION
Accordingly, the order of the Grayson Circuit Court adopting the DRC Report and granting visitation to David is vacated and remanded for the court to re-evaluate the evidence according to the proper standard. In so doing, the court must apply the proper presumption with respect to Danielle's decision to limit S.L.H.'s contact with David.
ALL CONCUR. BRIEF FOR APPELLANT: Stephen G. Hopkins
Hardinsburg, Kentucky BRIEF FOR APPELLEE: Earlene Whitaker Wilson
Leitchfield, Kentucky