Opinion
2201052
05-06-2022
Ivy East v. Jane Adkins
Appeal from Talladega Circuit Court (DR-20-900300)
THOMPSON, PRESIDING JUDGE
On November 13, 2020, Jane Adkins ("the paternal grandmother") filed in the Talladega Circuit Court ("the trial court") a petition for an award of grandparent visitation with her granddaughter ("the child"), who was born in 2006 of the marriage of Joshua East ("the father") and Ivy East ("the mother"). The record indicates that the mother and the father had divorced in February 2020 and that the mother had been awarded sole custody of the child subject to the father's rights of visitation. The mother and the father each filed an answer opposing the paternal grandmother's petition.
The trial court conducted a pendente lite hearing on December 21, 2020, at which it received ore tenus evidence. On December 21, 2020, the trial court entered an order finding that the paternal grandmother "had met her burden of proof in establishing grandparent-visitation privileges pursuant to former § 30-4-4.1, Ala. Code 1975, which has been repealed and replaced by § 30-4-4.2, Ala. Code 1975, and awarding the paternal grandmother pendente lite visitation with the child.
On May 17, 2021, the trial court entered a judgment finding that the parties had stipulated that the paternal grandmother had "met her burden under § 30-3-4.1," and it awarded the paternal grandmother scheduled visitation. The mother filed a timely postjudgment motion, and the trial court conducted a hearing on that motion. On September 1, 2021, the trial court entered an order denying the mother's postjudgment motion. The mother filed a timely notice of appeal on September 28, 2021.
As an initial matter, we note that, in her petition seeking an award of grandparent visitation, the paternal grandmother improperly cited former § 30-3-4.1. However, former § 30-3-4.1 been repealed and replaced by § 30-3-4.2, which became effective August 1, 2016. See Ala. Acts 2016, Act No. 2016-362. Accordingly, § 30-3-4.2 is applicable to this matter.
Section 30-3-4.2 provides, in relevant part:
"(a) For the purposes of this section, the following words have the following meanings:
"(1) Grandparent. The parent of a parent, whether the relationship is created biologically or by adoption.
"(2) Harm. A finding by the court, by clear and convincing evidence, that without court-ordered visitation by the grandparent, the child's emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.
"….
"(c)(1) There is a rebuttable presumption that a fit parent's decision to deny or limit visitation to the petitioner is in the best interest of the child.
"(2) To rebut the presumption, the petitioner shall prove by clear and convincing evidence, both of the following:
"a. The petitioner has established a significant and viable relationship with the child
for whom he or she is requesting visitation.
"b. Visitation with the petitioner is in the best interest of the child.
"(d) To establish a significant and viable relationship with the child, the petitioner shall prove by clear and convincing evidence any of the following:
"(1)a. The child resided with the petitioner for at least six consecutive months with or without a parent present within the three years preceding the filing of the petition.
"b. The petitioner was the caregiver to the child on a regular basis for at least six consecutive months within the three years preceding the filing of the petition.
"c. The petitioner had frequent or regular contact with the child for at least 12 consecutive months that resulted in a strong and meaningful relationship with the child within the three years preceding the filing of the petition.
"(2) Any other facts that establish the loss of the relationship between the petitioner and the child is likely to harm the child.
"(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner shall prove by clear and convincing evidence all of the following:
"(1) The petitioner has the capacity to give the child love, affection, and guidance.
"(2) The loss of an opportunity to maintain a significant and viable relationship between the petitioner and the child has caused or is reasonably likely to cause harm to the child.
"(3) The petitioner is willing to cooperate with the parent or parents if visitation with the child is allowed.
"(f) The court shall make specific written findings of fact in support of its rulings."
This court has explained that,
Ex parte R.D., 313 So.3d 1119, 1124 (Ala. Civ. App. 2020)."[i]n [enacting] § 30-3-4.2, the legislature added, among other things, a specification that grandparent visitation may not be awarded absent '[a] finding by the court, by clear and convincing evidence, that without court-ordered visitation by the grandparent, the child's emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.' § 30-3-4.2(a)(2)."
The mother asserts a number of arguments on appeal. We conclude that the mother's contention that the trial court's judgment fails to comply with § 30-3-4.2(f) is dispositive of this appeal. As indicated above, subsection (f) requires the trial court to make specific factual findings in a judgment concerning a request for an award of grandparent visitation. The mother cites K.J. v. S.B., 292 So.3d 657 (Ala. Civ. App. 2019), in which this court reversed a judgment that simply awarded grandparent visitation without making any findings of fact. See also S.J. v. A.B., 298 So.3d 520, 521 (Ala. Civ. App. 2020) (same).
In this case, the only factual finding arguably made by the trial court was that the parties had stipulated that the paternal grandmother had met her burden under former § 30-3-4.1. The judgment contains no other findings, and it fails to address the requirements of § 30-3-4.2, the applicable grandparent-visitation statute. We note that the mother did not raise her argument concerning the findings of fact required under § 30-3-4.2(f) before the trial court. However, this court has noted that the language used in § 30-3-4.2(f) reflects the legislature's intent to "impress upon the trial courts the importance of weighing all the factors set forth in [§ 30-3-4.2] and of informing this court of the reasoning behind its decision for purposes of facilitating meaningful appellate review." S.J. v. A.B., 298 So.3d at 521.
The trial court's judgment does not set forth the findings of fact required under § 30-3-4.2(f), and, therefore, we reverse the judgment and remand the cause for the trial court to enter a new judgment that contains factual determinations to support its judgment. K.J. v. S.B., 292 So.3d at 657. We pretermit discussion of the other arguments raised by the mother in her appellate brief.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, Edwards, Hanson, and Fridy, JJ., concur.