Opinion
NO. 2013-CA-001577-ME
07-18-2014
CHARLES RUBICH APPELLANT v. DOUGLAS NEUHOFF AND KATHY NEUHOFF APPELLEES
BRIEF FOR APPELLANT: Lori A. Kinkead Elizabethtown, Kentucky BRIEF FOR APPELLEE: Christy H. Shircliff Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 12-CI-02074
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: We must determine whether the Hardin Family Court erred when it granted appellees Douglas and Kathy Neuhoff grandparent visitation. We find no error and affirm.
I. Facts and Procedure
Appellant Charles Rubich is the natural father of three children, A.K.R. (Daughter 1), C.W.R. (Son), and A.M.R. (Daughter 2). The children are of a tender age. Douglas and Kathy are the children's maternal grandparents.
At the time of the hearing on April 18, 2012, A.K.R. was five years old, C.W.R., was four years old, and A.M.R. was two years old.
Jamie Rubich - the children's mother, Charles's wife, and the Neuhoffs' daughter - committed suicide on August 31, 2011. At the time of her death, Charles was deployed overseas. Because no person was present to parent the children, the Cabinet for Health and Family Services opened dependency actions on each child. Kathy traveled from her home in Billings, Montana, to Fort Knox, Kentucky, to help care for the children until Charles returned home.
Jamie was laid to rest in Billings. Charles and Jamie considered Billings "home". Their extended families, including Douglas and Kathy, reside there. After Jamie's funeral, the children stayed in Billings from September 9, 2011, through October 12, 2011, while Charles adjusted the children's living arrangements in Kentucky. While in Montana, the children split their time equally between the Neuhoffs and their paternal grandparents.
Douglas and Kathy continued to be involved in the children's lives after Jamie's death. In December 2011, Douglas spent several days in Kentucky with the children. Then, in March 2012, the children again spent a month in Montana with the Neuhoffs. While there, Douglas and Kathy enrolled the children in dance and swim lessons, planned play dates for them, joined the zoo, and arranged court-ordered counseling for the children with a Montana therapist.
The family court apparently ordered such counseling as part of the informal resolution of the dependency actions.
Prior to Jamie's death, she had planned a trip to Disney World for the children and their maternal cousins. Douglas, Kathy, and Charles wished to honor that trip. In June 2012, Kathy traveled to Kentucky to pick up the children. Charles, Kathy, and the children had lunch at the airport. Charles later testified that he informed Kathy that the children needed to be returned to Kentucky by the third week of June. Conversely, Kathy testified that Charles did not give her a specific return date for the children.
Kathy and the children traveled to Montana. Daughter Two remained in Montana with Douglas while Kathy, the two older children, and several relatives visited Disney Land in California. The children were in the Neuhoffs' care for over two weeks. In the middle of the third week of June, Charles contacted Douglas and Kathy to inquire when the children would be returning to Kentucky. The Neuhoffs, however, had not yet made the children's travel arrangements. Charles informed Kathy that the children needed to be in Kentucky by a certain date for a Cabinet home visit, and demanded that they be returned immediately. Unable to find a flight directly between Montana and Kentucky, Kathy drove the children to Denver, Colorado where they met Charles and flew home to Kentucky.
For convenience sake, the parties changed the trip from Disney World to Disney Land.
At this point, Charles severed virtually all contact between the children and the Neuhoffs. Upset with this turn of events, Douglas and Kathy filed a petition for grandparents' visitation on October 29, 2012. Charles opposed it. While the petition was pending, Charles and the children moved to Billings. They currently reside approximately three miles from Douglas and Kathy.
A hearing was held on the Neuhoffs' petition on April 18, 2013. Douglas and Kathy, testifying separately, described the visits they had with the children over the years. At the time of Daughter One's birth, Charles and Jamie lived in Yuma, Arizona. Douglas and Kathy each made intermittent trips to Arizona, and Jamie, Charles, and Daughter One routinely came to Billings for two weeks around Christmas. At some point Jamie, Daughter One, and Kathy traveled together to Texas for a family event. In March 2009, Jamie gave birth to Son in Billings. Jamie, Daughter One, and Son stayed in Billings with Douglas and Kathy for two weeks. A few months later, in August 2009, Jamie, Charles, and the children moved in with Kathy and Douglas in Billings. They lived with the Neuhoffs for six months. In January 2010, Charles was transferred to Fort Knox, Kentucky. Jamie and the children joined Charles in February 2010. Daughter Two was born in January 2011. Shortly after Daughter Two's birth, Charles was deployed to Afghanistan. Douglas visited Jamie and the children for several days in February 2011 and Kathy visited in April 2011. In addition to the visits, the Neuhoffs described frequent telephone and Skype conversations with Jamie and, when possible, the children.
Kathy and Douglas emphasized that they did not want to parent the children or in any way interfere with Charles's parental authority. Instead, they desired to solely be the children's grandparents and to be part of the children's lives. Douglas testified he and Kathy had bonded with the children. Kathy echoed Douglas's sentiments. Kathy also testified they do not bring up Jamie's death, but willingly answer questions when asked by the children. In Kathy's words, they let the children "do it in their own way and own time."
Charles testified that, at some point, the parties' relationship became strained. During the March 2012 trip, Charles claimed that Douglas and Kathy planned a birthday party at the zoo for Son without consulting him. Charles also believed that Kathy disapproved of the children spending time with their paternal grandparents. Most upsetting to Charles was the Neuhoffs' alleged carelessness in returning the children to Kentucky following the June 2012 trip. Charles explained that he took extreme offense to the Neuhoffs' conduct, conduct he believes undermined his authority as a parent. Charles also indicated that it upset the children when Douglas and Kathy talked about Jamie in front of them.
At the close of the hearing, the family court ordered the parties to tender certified copies of the children's Kentucky and Montana counseling records within 30 days, after which the matter would stand submitted. The Neuhoffs filed certified records from the Montana therapist on May 16, 2013.
By order entered June 5, 2013, the family court denied the Neuhoffs' petition for grandparent visitation. The family court deemed its decision a "close call." The Neuhoffs filed a motion to alter, amend, or vacate the final order pursuant to CR 59.05. While the CR 59.05 motion was pending, certified records from the Kentucky therapist were filed.
Kentucky Rules of Civil Procedure.
On August 16, 2013, the family court granted the Neuhoffs' CR 59.05 motion and entered amended findings of fact, conclusions of law, and an order reversing its prior decision. The family court candidly admitted it had made erroneous findings of fact in its June 5, 2013 order. Specifically, in its original order, the family court faulted the Neuhoffs for not participating in the dependency proceedings, describing it as a callous disregard for the well-being of their grandchildren. However, after taking judicial notice of the dependency family court record, the family court found that the Neuhoffs and their counsel did in fact participate in the dependency proceedings. Similarly, the family court admitted it failed to adequately take into consideration the amount of time the Neuhoffs spent with the children. Initially, the family court found that the Neuhoffs had spent only one month with the children after Jamie's passing. But after re-reviewing the hearing testimony, the family court determined that the Neuhoffs spent more time with the children than originally calculated. In light of these two corrections, the family court concluded that the Neuhoffs had met their burden of proof and therefore granted them grandparent visitation. Charles timely appealed.
II. Standard of Review
We review the family court's factual findings for clear error. CR 52.01. A finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). Substantial evidence is that which is "sufficient to induce conviction in the mind of a reasonable person." Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009). Furthermore, we must give due regard to the family court's opportunity "to judge the credibility of the witnesses." CR 52.01.
III. Analysis
KRS 405.021 governs grandparent visitation rights. Under that statute, the family court "may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so." KRS 405.021(1). In Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), the Kentucky Supreme Court clarified the appropriate standard to be applied by a family court considering grandparent visitation under KRS 405.021(1).
Kentucky Revised Statute.
First, the family "court must presume that a fit parent is making decisions that are in the child's best interest." Walker, 382 S.W.3d at 870; Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 2063, 147 L.Ed.2d 49 (2000). This "is the starting point for a [family] court's analysis under KRS 405.021(1)." Walker, 382 S.W.3d at 870. The parent's decision to prohibit grandparent visitation must not be hastily discarded or ignored. The parent(s) and grandparents are not on equal footing.
Second, "a grandparent petitioning for child visitation contrary to the wishes of the child's parent can overcome this presumption of validity only with clear and convincing evidence that granting visitation to the grandparent is in the child's best interest." Id. at 866. Simply stated, the grandparents must "show that the parent is mistaken in the belief that visitation is not in the child's best interest." Id. at 872. This is no ordinary best-interest analysis. It is a heightened standard. Id. (describing the standard as a "modified best interest analysis").
To assist family courts in determining whether visitation is in the child's best interest, the Walker court adopted several factors initially delineated by this Court in Vibbert v. Vibbert 144 S.W.3d 292 (Ky. App. 2004). Those factors include:
the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time [the grandparent and child] spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child's relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child's living and schooling arrangements; [and] the wishes and preferences of the child.Walker, 382 S.W.3d at 869 (citing Vibbert, 144 S.W.3d at 295). To this list the Walker court added one additional factor: "the motivation of the adults participating in the grandparent visitation proceedings." Id. With these standards in mind, we turn to Charles's specific claims of error.
Charles first argues it was error for the family court to take judicial notice of the dependency case and, more specifically, the Neuhoffs' level of participation in the dependency proceedings. A "family court may take judicial notice of its own records and on its own initiative." S.R. v. J.N., 307 S.W.3d 631, 637 (Ky. App. 2010); KRE 201(2). While the family court cannot adopt by judicial notice the evidence introduced in a prior case, it may take judicial notice of its prior orders and the adjudicative facts contained in those orders. S.R., 307 S.W.3d at 637.
Kentucky Rules of Evidence.
The dependency case record was not made a part of this record for purposes of this appeal. It was Charles's responsibility to ensure a complete record made its way to this Court. Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008). When the record is incomplete, we assume the omitted record supports the family court's decision. Id.
Here, the family court took judicial notice of the fact that Kathy and/or the Neuhoffs' counsel were present at the initial temporary removal hearing and all subsequent hearings resolving the dependency case. In any event, we must assume, as noted, that the missing dependency record supports the family court's finding. Id. We find no error.
AOC-DNA-3, a form order to be used for conducting a temporary removal hearing, requires this information.
Charles next contends that the family court trivialized his decision to prohibit grandparent visitation and failed to afford his wishes the appropriate deference due. The record does not support Charles's position.
Charles is a fit parent. The family court's orders reflect this. As required by Walker, the family court's analysis began with the presumption that Charles was acting in the best interest of his children when he chose to sever their ties with their maternal grandparents. Walker, 382 S.W.3d at 870-71. There is nothing in the record that suggests the family court casually brushed aside Charles's stated wishes. Instead, only after taking Charles's decision not to allow grandparent visitation and weighing that decision against the Vibbert factors did the family court reach the conclusion that Charles was mistaken in his belief that visitation was not in the children's best interest.
This leads us to Charles's third argument - that the family court erred when it found the Neuhoffs had proven by clear and convincing evidence that granting grandparent visitation was in the children's best interests. We disagree.
The Neuhoffs and the children have spent a considerable amount of time together, particularly following Jamie's death. This resulted in a close, steady relationship among them. Douglas and Kathy both testified they have bonded with the children. The children (along with Jamie and Charles) lived with the Neuhoffs for over six months. When children and grandparents live in the same household for a period of time a close bond is bound to form. See Walker, 382 S.W.3d at 872. Additionally, when face-to-face contact was not feasible, the Neuhoffs nurtured their relationship with the children through frequent Skype and telephone contact. After Jamie's death, the Neuhoffs spent even more time with the children. The children again lived with the Neuhoffs for 3-4 weeks on two separate occasions. During this time, the Neuhoffs ensured the children enjoyed numerous activities such as dance lessons, swim lessons, and play dates. Douglas also spent several days with the children around Christmas, and the children spent over two weeks with the Neuhoffs in June 2012. The family court emphasized that the Neuhoffs stepped forward when the children were in desperate need of care and attention and provided it by caring for them after Jamie's death and participating in the dependency proceedings. The Neuhoffs' actions, in the family court's eyes, provided strong evidence of the nature of their relationship with the children.
The family court was aware of the possible detriments and benefits to the children if it granted grandparent visitation. Of particular concern was the parties' conflicting views regarding how to handle Jamie's death as the children aged. The family court reiterated that deference to the judgment of the children's therapist would largely dissolve this detriment. The record also reflects that visitation with the Neuhoffs would largely benefit the children and enhance their lives. The Neuhoffs testified they can provide needed financial assistance, facilitate the children's connection to their mother's side of the family, assist with their activities, and ensure the children continue to receive much-needed counseling.
The Neuhoffs testified they are in peak physical health. And, despite suffering a great loss, all the parties appeared emotionally stable.
The family court did not expressly address the children's wishes and preferences. We find no fault with the family court, however, given the young ages of the children. Further, the record suggests that grandparent visitation would not interfere with the children's living and school arrangements. Charles and the children moved to Billings in January 2013 and currently reside mere miles from the Neuhoffs.
Finally, the family court considered the parties' respective motivations. Charles indicated one of his motivations in prohibiting visitation was the fact that the Neuhoffs upset the children when they discussed Jamie. However, the family court noted that the Montana and Kentucky therapists agreed that the children needed to have pictures of Jamie at their disposal and needed to be able to freely discuss their feelings about Jamie and the circumstances surrounding her death. The family court felt Charles "was motivated by more selfish reasons which would allow him to forget [Jamie] and not be reminded of her in opposition to the recommendations of the counselors." The Neuhoffs' expressed motivation was their desire to remain a part of the children's lives. They testified they did not seek to parent the children or otherwise interfere with Charles's parental authority.
After considering all the evidence and weighing the Vibbert factors the family court found that the Neuhoffs had met their burden of proving, by clear and convincing evidence, that Charles was mistaken in his belief that visitation with them was not in the children's best interest. The family court's decision is supported by substantial evidence in the record. We decline to disturb it.
As a corollary to the above, Charles claims the family court failed to clearly consider the Vibbert factors. While not presented in bullet point fashion and perhaps not described in as much detail as Charles may like, a close reading of the family court's orders reveals its analysis was sufficient. In any event, the Supreme Court did not mandate a detailed analysis of each and every Vibbert factor. Walker, 382 S.W.3d at 871 ("A [family] court can look at several factors to determine whether visitation is clearly in the child's best interest." (emphasis added)). At no point should the Vibbert factors overshadow the ultimate inquiry of whether granting grandparent visitation is in the child's best interest, even as that standard is a modified one. Id.
Finally, Charles argues the family court erred by effectively granting the Neuhoffs noncustodial parental visitation rights, as permitted by KRS 405.021(3), instead of reasonable grandparents visitation under KRS 405.021(1). The family court did no such thing. In fact, the family court specifically found that the Neuhoffs did not meet the requirements of KRS 405.021(3). Instead, the family court awarded the Neuhoffs "reasonable visitation" pursuant to KRS 405.021(1). "Reasonable visitation" is an amorphous term subject to interpretation. The parties conflicting views in this case is illustrative. There is no standard definition of "reasonable visitation" and we decline to issue one today. The term must be pliable enough to adjust and adapt to the unique circumstance of each case. Here, the family court granted the Neuhoffs visitation every other weekend, on the children's fall break during odd years, spring break during even years, four weeks during the summer, and every other Thanksgiving and Christmas. While perhaps at the upper end of the reasonableness spectrum, we cannot say the family court's decision runs afoul of KRS 405.021(1).
Under KRS 405.021(3), the family court "may grant noncustodial parental visitation rights to the grandparent of a child if the parent of the child who is the son or daughter of the grandparent is deceased and the grandparent has assumed the financial obligation of child support owed by the deceased parent, unless the court determines that the visitation is not in the best interest of the child."
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IV. Conclusion
We affirm the Hardin Family Court's August 16, 2013 order.
ALL CONCUR. BRIEF FOR APPELLANT: Lori A. Kinkead
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Christy H. Shircliff
Louisville, Kentucky