Opinion
NO. 2014-CA-001608-ME
05-15-2015
J.M. AND C.M. APPELLANTS v. L.H. APPELLEE
BRIEFS FOR APPELLANTS: Jennifer Mattingly, Pro se Charles Mattingly, Pro se Bardstown, Kentucky BRIEF FOR APPELLEE: Alan Kent Akers, Sr. Bardstown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE CHARLES C. SIMMS III, JUDGE
ACTION NO. 14-CI-00139
OPINION
AFFIRMING
BEFORE: CLAYTON, KRAMER, AND VANMETER, JUDGES. VANMETER, JUDGE: J.M. and C.M. ("Parents") appeal from the Nelson Circuit Court's September 12, 2014, Findings of Fact, Conclusions of Law and Judgment awarding L.H. ("Grandmother") grandparent visitation rights with her granddaughter, E.M. ("Child"). For the following reasons, we affirm.
Grandmother is the maternal grandmother of Parents' minor child. Grandmother petitioned the court for grandparent visitation after Parents stopped allowing her visitation. After an evidentiary hearing, the trial court found that visitation between Grandmother and Child was in the child's best interest and ordered grandparent visitation. From that order, Parents now appeal.
Parents claim that the trial court erred by awarding Grandmother grandparent visitation. In that vein, they argue that many of the trial court's factual findings were erroneous. Next, they argue that the court's order infringed their due process right to raise their child as they see fit. Lastly, they claim that the trial court's order was not in keeping with the purpose of KRS 405.021.
Kentucky Revised Statutes.
As for the standard of review in grandparent visitation cases, this court has stated the following:
A family court's factual findings are reviewed for clear error. A finding supported by substantial evidence is not clearly erroneous. Substantial evidence is that which is "sufficient to induce conviction in the mind of a reasonable person." Furthermore, we must give due regard to the family court's opportunity "to judge the credibility of the witnesses."Waddle v. Waddle, 447 S.W.3d 653, 655 (Ky. App. 2014) (internal citations omitted). Thus, we review the circuit court's findings of fact for clear error, and its conclusions of law de novo.
However, the interpretation of Kentucky Revised Statutes (KRS) 405.021 and the application of the appropriate standard to the facts are issues of law and, consequently, are reviewed de novo.
KRS 405.021(1) gives the circuit court the authority to grant grandparent visitation rights. The standard for awarding grandparent visitation is a modified best interests standard, set forth in Walker v. Blair, 382 S.W.3d 862, 871 (Ky. 2012). "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. "The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child's best interest." Id. at 871. In Walker, the Kentucky Supreme Court enumerated the modified best interest test as follows:
A trial court can look at several factors to determine whether visitation is clearly in the child's best interest. The Vibbert court laid out many of these factors, including:
"1) the nature and stability of the relationship between the child and the grandparent seeking visitation;
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; and
7) the wishes and preferences of the child."
To this list, we add:
8) the motivation of the adults participating in the grandparent visitation proceedings.Id. (quoting Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004)).
In this case, the trial court made detailed findings on each of the eight factors. The trial court found that Grandmother and Child shared a close grandparent/grandchild relationship, and the two had spent a significant amount of time together. Next, the court recognized that the animosity between Grandmother and Parents, including manipulation and potential mental health issues on each side, was a possible detriment to allowing grandparent visitation. Yet, the court also acknowledged the benefits of visitation, considering that Grandmother wants a close, loving relationship with Child and that Child misses her grandmother. Fourth, the court noted that the only issue in the parent/child relationship resulting from Child visiting her grandmother is a minor issue concerning the child's junk food consumption. Fifth, the court again acknowledged that Grandmother and J.M., her daughter, both seem to have emotional issues relating to the suicide of C.H., who was Grandmother's son and J.M.'s brother. The court then found that no stability issues would result from visitation as all the parties live within Nelson County. Sixth, the court found that Child clearly loves and wants to visit with her grandmother. Lastly, the court found that the parties' motivations both seem to involve manipulation of the other, yet Grandmother's desire for a loving relationship with child outweighs those issues. These findings led the court to conclude that visitation was in Child's best interest, so the court laid out a detailed visitation schedule and ordered the parties to a parental education clinic.
First, Parents claim that requiring a child to have visitation with a grandparent who has animosity towards the child's parents is unhealthy for the child and undermines the child's relationship with her parents. They cite Grayson v. Grayson, 319 S.W.3d 426 (Ky. App. 2010), wherein the trial court's order granting grandparent visitation was reversed by this court due to the "extremely tense relationship of the parties" and emotional issues that would affect visitation. However, in Grayson this court predicated its decision on the fact that the grandmother had "engaged in extraordinary acts of hostility toward the children's mother and father[,]" including swerving her vehicle towards them and admitting that she would never reconcile with the children's mother. Id. at 431. In this case, we do not believe the trial court's findings concerning the animosity between Grandmother and Parents were erroneous. The trial court found that the animosity between the parties is trivial and surmountable, and further, such animosity does not prohibit Grandmother from having loving relationship with Child. These findings were firmly within the trial court's discretion as fact-finder.
Next, Parents claim that the trial court did not give sufficient weight to the mental and emotional health of the parties involved and the court should not have ordered grandparent visitation when these issues still exist. While the parties clearly have feelings of guilt and blame resulting from the death of their family member, we believe the trial court more than adequately addressed these concerns in its analysis under Walker, and still determined that grandparent visitation would be in Child's best interest. Further, the court ordered the parties to counseling in an effort to address these issues. Consequently, we disagree with Parents' contention that grandparent visitation should have been denied due to the mental and emotional issues suffered by the parties.
Thirdly, Parents argue that the trial court erred by failing to consider Grandmother's alienation of J.M. from her father during her childhood. Other than Grandmother's tendency towards manipulation, which the trial court acknowledged when making its decision, we fail to appreciate how this issue is relevant to Grandmother's visitation with Child. As a result, we find no error in the court's minimal discussion on this issue.
Next, Parents allege that the trial court erred by finding that Child would be potentially harmed by a lack of visitation with Grandmother and her family. Again, we disagree. Child clearly misses her grandmother and wishes to have a relationship with her. The two developed a strong relationship and spent a great deal of time together, so we agree that a lack of contact could be detrimental to Child. Hence, we find no error in this finding.
Parents next argue that their due process right to raise their child as they see fit was infringed by the court's order granting visitation. We disagree. The court clearly applied the appropriate standard for grandparent visitation set forth in Walker, a standard that the court has employed to prevent violation of parental rights. The court thoroughly analyzed each of the eight factors in the modified best interest test before reaching its ultimate conclusion. We agree with the trial court that Grandmother clearly and convincingly overcame the presumption that a fit parent acts in the child's best interest when denying grandparent visitation. While the parties clearly have some issues to be addressed, prohibiting a relationship between Child and her grandmother does not appear to be in Child's best interest.
Additionally, Parents claim that the trial court's order is not in keeping with the intended purpose of KRS 405.021. They rely on King v. King, 828 S.W.2d 630 (Ky. 1992)(overruled by Walker), in which the Kentucky Supreme Court stated: "the grandparents' visitation statute was an appropriate response to the change in the demographics of domestic relations, mirrored by the dramatic increase in the divorce rate and in the number of children born to unmarried parents, and the increasing independence and alienation within the extended family inherent in a mobile society." Id. at 632. Parents argue that because these issues are not present in their case, an award of grandparent visitation was inappropriate. We disagree. The grandparent visitation statute is applicable in a variety of situations, including those in which both of the married biological parents oppose grandparent visitation.
Lastly, Parents claim that the trial court judge was biased against them. However, they did not raise this issue before the trial court, and have presented little evidence of any potential bias. Therefore, we decline to address this contention.
For the reasons discussed above, the judgment of the Nelson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Jennifer Mattingly, Pro se
Charles Mattingly, Pro se
Bardstown, Kentucky
BRIEF FOR APPELLEE: Alan Kent Akers, Sr.
Bardstown, Kentucky