Opinion
No. 2031005.
Decided March 17, 2006.
Appeal from Chilton Circuit Court (DR-01-172).
On Application for Rehearing.
APPLICATION FOR REHEARING OVERRULED.
Crawley, P.J., and Thompson and Bryan, JJ., concur.
Murdock, J., concurs in the result, with opinion.
I concur in overruling the wife's application for rehearing in this case. I write separately to note that I see nothing in the facts of this case that would justify, constitutionally, an award of grandparental visitation. As I recently stated in Dodd v. Burleson, [Ms. 2040003, Dec. 16, 2005] ___ So. 2d ___ (Ala.Civ.App. 2005):
"My views as to [the due-process, constitutional issue raised in cases involving grandparental visitation] continue to be as expressed in R.S.C. v. J.B.C., 812 So. 2d 361 (Ala.Civ.App. 2001), L.B.S. v. L.M.S., 826 So. 2d 178 (Ala.Civ.App. 2002) (Murdock, J., concurring in the judgment of reversal only), and subsequent cases. See also, e.g., McQuinn v. McQuinn, 866 So. 2d 570, 578 (Ala.Civ.App. 2003) (Murdock, J., dissenting)."
___ So. 2d at ___ (Murdock, J., concurring in the result only).See also Richburg v. Richburg, 895 So. 2d 311 (Ala.Civ.App. 2004); and Beck v. Beck, 865 So. 2d 446 (Ala.Civ.App. 2003) (Murdock, J., concurring in the result). The fact that the grandparents in this case have been awarded the right to visit with the children only during time periods when the father is also authorized to visit does not change the fact that the grandparents have been given their own, separate, legal right by a court order to visit with the children during those periods. Nor is the constitution-based objection to the award of grandparental visitation in cases such as this assuaged by a requirement that such visitation be supervised by a third party.
On appeal, however, the wife makes no substantive argument, at least none supported by citation to any authority, challenging the constitutionality of the visitation awarded to the grandparents. Her only contention is that the award of grandparental visitation was inappropriate on the ground that the grandparents failed to file, and the trial court failed to grant, a formal motion to intervene. This argument, however, was not raised in the trial court and should not be considered as a basis for reversing the trial court's judgment at this juncture. See Andrews v. Merritt Oil Co., 612 So. 2d 409 (Ala. 1992). It is on this basis, alone, that I concurred in the result reached by the main opinion on original submission insofar as the issue of grandparental visitation is concerned, and that I concur in overruling the application for rehearing insofar as that issue is concerned.