Opinion
NO. 2015-CA-000561-ME
02-19-2016
KAREN ELIZABETH WADDLE APPELLANT v. THOMAS RAY AND NANCY DIANN WADDLE; AND KYLE WADDLE APPELLEES
BRIEF FOR APPELLANT: Amber Hunt Sisco Pikeville, Kentucky BRIEF FOR APPELLEES: James D. Adams, II Prestonsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 12-CI-01194 OPINION
VACATING AND REMANDING BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND JONES, JUDGES. CLAYTON, JUDGE: Karen Elizabeth Waddle appeals the January 14, 2015 order of the Floyd Circuit Court, Family Division, awarding grandparent visitation to Thomas Ray Waddle ("Thomas") and Nancy Diann Waddle ("Diann") over her objection. She is the biological mother and sole custodian of the child. After careful review, we vacate and remand the decision.
BACKGROUND
Karen and Kyle Waddle were married on May 19, 2011. During the marriage, they had a son, K.R.W. (hereinafter "K.R."), who was born on June 21, 2011. On November 20, 2012, Karen filed a petition for the dissolution of the marriage. Simultaneously, she also filed a motion for temporary custody of K.R. At the time of the filing of these motions, Kyle was incarcerated. On December 10, 2014, the Floyd Family Court entered an order granting Karen sole custody of K.R. The order also denied visitation to the biological father, Kyle. Kyle's parents, Thomas and Diann Waddle, filed a motion for grandparent visitation, which was granted by the family court. However, the Kentucky Court of Appeals reversed and remanded this order because the family court did not use the appropriate standard in ascertaining whether grandparent visitation was proper.
In its order, the Court instructed that the family court must presume that Karen, as K.R.'s parent, was acting in the child's best interest, and the grandparents, to rebut this presumption, must provide clear and convincing evidence that visitation with them was in the child's best interest despite the mother's objection. Furthermore, the Court directed that the family court use the factors set forth in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012). Finally, the family court was to provide written findings of fact.
On remand, the family court conducted a new evidentiary hearing on December 5, 2014, to determine whether grandparent visitation was permissible under the legal standard. When the hearing was held, Kyle was still incarcerated but appeared at the hearing. Additionally, Karen, Thomas, Diann, Amanda Anderson - Karen's sister, as well as Kyle testified at the hearing.
Karen stated at the hearing that it is her belief that K.R.'s visitation with his paternal grandparents has a detrimental impact on her relationship with the child. The child is quiet and clings to her after visiting with the grandparents. And after visitation with the grandparents, the child does not transition easily to school. In contrast, he has no difficulty going to school when he has been with his mother.
Karen offered other examples of the difficulty between her and the grandparents. For example, she noted that Thomas and Diann have taken the child to church several times even though she requested that they not take him. Karen also opposed the Waddles permitting K.R. to ride on a four-wheeler. In their testimony, Thomas and Diann noted that the vehicle was a toy four-wheeler. Karen, however, said that she does not want the child riding a toy four-wheeler. Other instances of the parties' differences were expressed at the hearing by both Karen and the grandparents.
Kyle spoke and reiterated that he has no objection to his parents having grandparent visitation. Further, he claimed that because of his incarceration, he has no visitation with the child, and thus, the only time that he is able to speak with his son is during the child's visits to his parents' home. It was pointed out that although Kyle will not receive visitation automatically upon his release from incarceration, he may petition the family court for visitation.
As noted above, the grandparents also gave testimony. In particular, Diann contended that she has a close relationship with the child. Thomas, too, expressed a close relationship with the child. Further, Thomas maintained that he could not understand that the grandparents not following Karen's requests concerning K.R. harms her relationship with the child. He believed the request for the child to not ride a four-wheeler did not refer to a toy one. And, he sees no harm to the mother-child relationship by taking the child to church even though Karen does not want the child to go.
The record and the parties' statements establish that animosity exists between the parties. The parties have a history of domestic violence. In fact, once, during the time that Karen, Kyle, and the child lived with Thomas and Diann, an altercation occurred. According to Karen, she, her husband, and the child were asked to leave the home immediately without notice. Further, she was slapped by Diann while holding K.R. Moreover, problems now exist with regard to the exchange of the child between the parties. Amanda, Karen's sister, spoke at the hearing, and testified that exchanges are difficult. She was present at an exchange and heard the grandparents make disparaging remarks about Karen in front of the child.
Following the hearing, the family court entered an order on January 14, 2015, which included written findings. Therein, the family court determined that it was in the best interest of the child to have visitation with his grandparents. The family court held that the grandparents had provided clear and convincing evidence, over the mother's objection to grandparent visitation, that it was in the child's best interest for such visitation. Thereafter, Karen filed a motion to alter, amend, or vacate this order. After a hearing, the family court on March 27, 2015, denied the motion to alter, amend, or vacate and upheld the January 9, 2015 order in its entirety. Karen now appeals.
STANDARD OF REVIEW
A family court's factual findings are reviewed for clear error, and therefore, the clearly erroneous standard is used. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986); Kentucky Rules of Civil Procedure (CR) 52.01. Further, a finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). 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). Moreover, we must give due regard to the family court's opportunity "to judge the credibility of the witnesses." CR 52.01.
Nonetheless, statutory interpretation and the application of the appropriate standard to the facts are issues of law and, consequently, are reviewed de novo. Hill v. Thompson, 297 S.W.3d 892, 895 (Ky. App. 2009). With these standards in mind, we turn to the case at hand.
ANALYSIS
The United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), discussed grandparent visitation and the federal constitutional implications of state statutes that allow courts to grant non-parent visitation with children over the objections of parents. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment gives parents a fundamental liberty interest in the care, custody, and control of their children. Troxel, 530 U.S. at 65-66, 120 S.Ct. at 2059-2060. Further, the Supreme Court recognized "a presumption that fit parents act in the best interests of their children." Id. at 68, 120 S.Ct. at 2061.
In Walker v. Blair, the Kentucky Supreme Court clarified the impact of Troxel on Kentucky's grandparent visitation statute, Kentucky Revised Statutes (KRS) 405.021(1). In its discussion of Troxel, the Court held that Kentucky's grandparent visitation statute is constitutional. Walker, 382 S.W.3d at 870. The Court, however, interpreted that for the statute to comply with Troxel, courts must presume that a fit parent acts in his or her child's best interest. In essence, in a grandparent visitation dispute, a parent and grandparent are not on equal footing, and a parent's decision to deny visitation is given special weight. Id.
Furthermore, relying on Troxel, the Court explained that because a fit parent is presumed to act in the best interest of the child, a grandparent seeking visitation against a parent's wishes must overcome the presumption that the parent is acting in the child's best interest by clear and convincing evidence. Thus, for a court to grant grandparents visitation over the wishes of the parents, the grandparents must establish compelling evidence, that is, clear and convincing, that visitation is in the child's best interest. Id. at 873.
To assist family courts in determining whether visitation is in the child's best interest, the Walker court adopted several factors, which initially were delineated in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004). Our Court, sitting en banc, adopted a modified best-interest standard which starts with the presumption that visitation against the parent's wishes is not in the child's best interest, and therefore, grandparents must rebut this presumption with clear and convincing evidence that visitation is in the child's best interest. Id. at 294-95.
The Vibbert court then established a modified best interest standard for analyzing the best interest of the child under KRS 405.021(1). Id. The factors necessary for grandparents to establish by clear and convincing evidence that the requested visitation is in the best interest of the child consist of a broad array of factors, which were adopted in Walker. Walker, 382 S.W.3d at 869. These factors include, but are not limited to "the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time 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." Id. (citing Vibbert, 144 S.W.3d at 295). Moreover, Walker added an additional factor: "the motivation of the adults participating in the grandparent visitation proceedings." Id. at 870
We now turn to Karen's specific claims of error. She contends that in granting Diann and Thomas grandparent visitation against her wishes, the family court failed to give her decision the special weight that is due. Karen also argues that the grandparents failed to rebut by clear and convincing evidence the presumption that she is acting in K.R.'s best interest. To counter, the Waddle grandparents maintain that the family court orders should stand in their entirety as they follow the law of grandparent visitation. Further, they argue that Karen's appeal is moot since she entered into an agreed order for grandparent visitation.
To begin our analysis of this case, we first observe that 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, 530 U.S. at 72-73, 120 S.Ct. at 2063. This "is the starting point for a [family] court's analysis under KRS 405.021(1)." Id. at 870-71. Moreover, the Court cautions that a parent's decision to prohibit grandparent visitation must not be hastily discarded or ignored. Because of the parent's fundamental liberty interest in rearing his or her children, under Troxel and Walker, the family court must be mindful that parents and the grandparents are not on equal footing.
Therefore, based on the reasoning in Walker, a family court must presume that a parent, who adequately cares for his or her child (i.e., is fit), acts in the child's best interest. In the case at bar, the presumption is that Karen is acting in K.R.'s best interest. Here, the family court does not directly address Karen's objection to the grandparent visitation and the presumption that, as a fit parent, her wishes must prevail. Rather, the family court moves immediately into a consideration of the Vibbert modified best interest standard.
Our next step is to review the family court's attention to the factors in Vibbert and whether its award of grandparent visitation to the grandparents is based on compelling evidence that Karen is mistaken in the belief that grandparent visitation is not in K.R.'s best interest. 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. Notably, this is no ordinary best-interest analysis, but a heightened standard. Id. In addition, the burden of proving that visitation with the grandparents is in the children's best interest must be met by clear and convincing evidence. Id. at 871. The corollary to this admonition is that the burden is not on the parent to show why visitation should be denied. Id. at 873.
Recognizing that a family court must be aware that "[g]randparent visitation cases are fact-intensive inquiries for trial courts," we examine the family court's discussion of the modified best interest standard. Id. The family court specifically addressed the child and the grandparents' relationship; the amount of time the child spends with the grandparents; the effect that the grant of grandparent visitation has on the child's relationship with the parent; the physical and emotional health of the adults involved; and, the wishes and preferences of the child.
The family court then concluded that the grandparents have a loving relationship with the grandchild; they spend as much time with K.R. as possible; their relationship with the child permits the father to have a relationship with the child; and, substantial benefits inure to the child through the grandparent visitation. The family court's conclusions, however, do not address whether clear and convincing proof of a loving relationship alone is enough to overcome the parental presumption. As noted in Walker, except in special circumstances, loving a grandchild is not enough to rebut the presumption that a "fit" parent decision concerning visitation is in the child's best interest. Id. at 872. Instead, a grandparent must show something more— clear and convincing evidence that the grandparent and child shared such a close bond that to sever it would cause distress to the child to not have visitation with them. The grandparents have not done so. Indeed, the family court did not address Karen's specific concern that K.R.'s time with his grandparents harmed her relationship with him.
To begin our analysis of the findings, we note that the relationship between Kyle and the child is not the underlying purpose of grandparent visitation. Kyle's statements that he agrees with his parents having visitation are self-serving. Upon release from incarceration, he may, as noted above, petition the family court for visitation. However, in this matter, he has no custodial role involving K.R., and Karen is the parent vested with decision-making for the child.
Second, the family court found that all the parties' physical and emotional health is fine. But the family court did not address the evidence on the record that Diann had neck surgery and takes muscle relaxers and Xanax for nerves and anxiety. Thomas suffers from depression and takes medication for it. Nor did the family court address the animosity between the parties and the history of domestic violence.
Since a decision to grant grandparent visitation is a fact-intensive inquiry and enmity between the parties is significant, a family court must consider it. Moreover, the record indicated that Diann and Thomas had taken the child to their church and allowed him to ride a toy four-wheeler against Karen's expressed desires. Certainly, for a court to allow grandparent involvement in the life of a child may place a substantial burden on the traditional parent-child relationship. This burden is intensified if animosity exists between a parent and grandparent. Under the modified best interest standard, grandparent visitation should not be granted if it is clearly detrimental to the parent-child relationship.
Bolstering the concern about the hostility between Karen and the grandparents is the family court's failure to consider the additional Walker factor of the modified best interest standard. This factor concerns the motivation of the parents in prohibiting visitation and the motivation of the grandparents in pursuing visitation. As observed above, there is a history of animosity and domestic violence between these parties, and they continue to experience discord. Not only did the family court's analysis not address the animosity and domestic violence, but also the Waddle grandparents did not provide clear and convincing evidence of the child's best interest being served by visitation with them in light of the mother's reasonable objections.
Finally, the family court order discusses K.R.'s time with the grandparents, but the time referred to is the previously nullified grandparent visitation. Karen and the child have lived separately from the grandparents for some time. Further, the family court makes the assumption that the young child is happy with the grandparents, and hence, would want to visit them. K.R. is too young to make this assertion himself. And the family court did not discuss Karen's assertions that the grandparent visitation is problematic for the child.
After review of the record, we conclude that the family court erred as a matter of law in its judgment for failing to hold Diann and Thomas Waddle to the clear and convincing evidentiary standard as required by KRS 405.021(1) and Walker v. Blair. They did not provide compelling evidence that harm to K.R. will result by depriving him of visitation with them. Walker, 381 S.W.3d at 872. Accordingly, we hold that they did not meet their burden of rebutting, by clear and convincing evidence, the presumption that Karen was acting in the best interest of K.R. in her objection to grandparent visitation. Walker states that if the grandparents fail to present clear and convincing evidence, then parental opposition alone is sufficient to deny visitation. Id. at 871. Therefore, we hold that the family court erred in granting grandparent visitation.
Lastly, the Waddles allege that after the January family court's order, Karen entered into an agreed order, which became effective on April 28, 2015. They maintain that the order renders the appeal moot, and Karen has waived her right to appeal the order of grandparent visitation. The background for the agreed order is that during the pendency of Karen's motion to alter, amend, or vacate the new order of grandparent visitation, the family court judge entered an order dealing with the motion and in that order stated that:
...should the Court overrule the Petitioner's motion to amend, alter, or vacate, the Intervening Respondents [Diann and Thomas], may petition the Court to make up visitation lost during the pendency of Petitioner's motion.
Karen claims that she entered into the agreed order to follow the family court's directives, avoid the possibility of contempt, and schedule the "make-up" visitation at a convenient time. Additionally, she notes that in the earlier action involving grandparent visitation, Diann and Thomas had filed a motion for rule and requested that the family court hold Karen in contempt for denying visitation and requested attorney fees. The family court responded to this motion for rule by ordering "make-up" visitation for the grandparents and holding the issue of attorney fees in abeyance in the event that Karen missed future visitation. Therefore, she was concerned that once again she might be liable for the Waddles' attorney fees.
It is significant that Karen has never waived her objection to grandparent visitation or failed to comply with any appellate requirements. Waiver requires proof of a "knowing and voluntary surrender or relinquishment of a known right." Moore v. Asente, 110 S.W.3d 336, 360 (Ky. 2003). Here, complying with the family court order that the grandparents are entitled to make-up visitation does not constitute waiver of the underlying issue of grandparent visitation. This is particularly true in light of the family court's earlier actions concerning attorney fees in dealing with the grandparents' motion for rule.
A perusal of the agreed order regarding the visitation contains no language that Karen is suspending her objection to grandparent visitation. Rather, she is amending the order to comply with the family court order regarding visitation during the pendency of this action. Lastly, Diann and Thomas already moved our Court to dismiss the appeal based on the agreed order. We denied their motion. Therefore, Karen's appeal is not moot or waived.
CONCLUSION
We vacate the Floyd Family Court's orders of January 14, 2015, and March 27, 2015, granting grandparent visitation and remand for actions consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Amber Hunt Sisco
Pikeville, Kentucky BRIEF FOR APPELLEES: James D. Adams, II
Prestonsburg, Kentucky