Opinion
NO. 2016-CA-000665-ME
01-20-2017
SUE STEVENS APPELLANT v. CHRIS BOTTOM AND CRYSTAL BOTTOM APPELLEES
BRIEF FOR APPELLANT: Elmer J. George Meredith Booth George Lebanon, Kentucky BRIEF FOR APPELLEE: Luke R. Lawless Campbellsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREEN CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 14-CI-00084 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND D. LAMBERT, JUDGES. CLAYTON, JUDGE: Sue Stevens appeals from the Green Circuit Court's judgment denying her grandparent visitation rights with her grandchildren. For the following reasons, we affirm.
BACKGROUND
Sue is the maternal grandparent of B.B., who was born in February 2015, and Z.B. (hereinafter "Child"), who was born in November 2006. Crystal and Chris Bottom are the children's parents. When Child was born, the parents lived in a mobile home on Sue's property. From the beginning, Sue was very involved in Child's life. But in May 2014, the relationship between Sue and Child was severed by the parents. According to the parents, while Sue helped them a great deal initially, her behavior eventually became disruptive and undermined their authority. Furthermore, the parents claim that Sue became verbally abusive, sometimes in front of Child, and also bullied them. They left the mobile home on her property to get away from her.
In the petition for grandparent visitation, B.B. was listed as an "unborn child." --------
Sue filed a petition for grandparent visitation rights on July 10, 2014. The petition references both Child and an unborn child (B.B.), Sue requested visitation rights with both children; however, Sue's appellate brief does not mention that she is seeking grandparent visitation with B.B.
The trial court conducted evidentiary hearings on August 18, 2014, December 1, 2014, and March 23, 2015. On April 12, 2016, the trial court entered its judgment denying the petition for grandparent visitation. In the judgment, the trial court concluded that Sue did not rebut the constitutional presumption that the parents were acting in the best interest of the child by not permitting visitation with the grandmother nor did she provide evidence of special circumstances to overcome the presumption. Sue now appeals from this judgment. On appeal, she argues that the trial court erred both when it dismissed the Guardian ad Litem (hereinafter "GAL") before the culmination of the litigation and also in concluding that the parents were acting in Child's best interest.
STANDARD OF REVIEW
The standard of review in grandparent visitation cases is as follows:
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). Hence, we review the trial 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.
ANALYSIS
The trial court is authorized by KRS 405.021(1) 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), which provides that "[t]he 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. In order to prevail, the grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that establishes that visitation with the grandparent is in the child's best interest. Id.
In Walker, the Kentucky Supreme Court, relying on Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), enumerated seven factors for the modified best interest test that is used to determine the efficacy of whether a trial court should grant grandparent visitation. Additionally, in Walker, the Supreme Court added an additional factor, that is, the motivation of the adults participating in the grandparent visitation proceedings. Walker, 382 S.W.3d at 871. A trial court can look at the pertinent factors to determine whether visitation is clearly in the child's best interest.
To begin, we address Sue's first argument regarding the dismissal of the GAL. Early in the litigation, the trial court appointed a GAL for Child after Sue made the motion. However, when the trial court next reviewed the case, it dismissed the appointed GAL. The record does not explain the dismissal nor does Sue provide the reason. Because Child was unrepresented, Sue proffers that the trial court erred and the case should be remanded for the appointment of a new GAL and a new hearing. Nonetheless, Sue provides no statutory or case law supporting her position.
A perusal of the child visitation statutes, including KRS 405.021 governing grandparent visitation, shows no mandate for the appointment of a GAL. Indeed, there is no statutory requirement that a GAL be appointed in visitation matters. Custody and visitation matters are routinely resolved without a child being represented by a GAL.
With this in mind, we observe that Sue never made another motion for the appointment of a new GAL. And she did not indicate in the appellate brief that this issue had been preserved for appellate review. See Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). Since the trial court did not have the opportunity to rule on this issue, an appellate court has nothing to review. Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985). Furthermore, the trial court conducted an interview of Child, in camera, which it relied upon in the final judgment. This interview and the trial court's reliance on it indicates that Child was able to provide testimony on her own behalf. In sum, we hold that no error occurred because the trial court did not appoint a GAL.
Next, Sue maintains that the trial court erred in finding that the parents were acting in Child's best interest. She then explains her importance in Child's life and that the parents were being vindictive in not allowing Sue to see Child. In the trial court's judgment, however, the following issues and incidents are listed: Sue persistently intervened in Child's family and their decisions; communicated by yelling and screaming; showed up for doctor's visits uninvited; argued and physically fought with Child's mother at a restaurant; and, created a scene at the courthouse on one of the hearing days. Some behavior by Sue happened in front of Child. Also when Child testified in camera, she told the trial court judge that while she enjoyed spending time with Sue in the past, it was better to keep the mother and grandmother apart and that she loved her parents and liked living with them.
To make a decision permitting a grandparent to be awarded visitation over the objections of parents, a trial court must determine that it is in the best interest of the child. We do not believe that the trial court's findings in this matter, that grandparent visitation was not in Child's best interest, were clearly erroneous. These findings were supported by substantial evidence.
CONCLUSION
For the reasons stated above, the judgment of the Green Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Elmer J. George
Meredith Booth George
Lebanon, Kentucky BRIEF FOR APPELLEE: Luke R. Lawless
Campbellsville, Kentucky