PHOEBE STONE v. BETHEL GENE STONE
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RENDERED: March 26, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002780-MR
PHOEBE STONE
APPELLANT
APPEAL FROM WOLFE CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 97-CI-00014
v.
BETHEL GENE STONE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND GARDNER, JUDGES.
EMBERTON, JUDGE: Phoebe Stone appeals from a judgment of the
Wolfe Circuit Court awarding grandparental visitation rights to
appellee, Bethel Gene Stone.
Phoebe alleges that appellee failed
to meet his burden of establishing that allowing such visitation
is in the best interest of the child and that the trial judge
erred in setting aside the recommendation of the domestic
relations commissioner who had “tried” the case.
We disagree and
affirm.
Appellee is the paternal grandfather of Shana DeAnna
Olene Stone, born October 9, 1995.
The child’s mother, appellant
Phoebe Stone, and appellee’s son, Shane Stone, were divorced by
decree entered on October 24, 1996.
Phoebe was awarded custody
of the child, and Shane, for reasons not apparent in the record,
was granted visitation only with Phoebe’s permission at her
mother’s home.
Subsequently, on February 7, 1997, appellee filed
a motion seeking visitation rights with his granddaughter.
The
matter was referred to a domestic relations commissioner who
conducted a hearing which apparently was not transcribed because
it does not appear in the record filed with this court.
However,
based upon the evidence adduced at that hearing, the commissioner
submitted a report recommending that appellee’s petition be
denied.
After appellee filed exceptions to the commissioner’s
report, the trial judge entered detailed findings to support his
conclusion that the granting of grandparental visitation was in
the best interest of the child.
He specifically addressed
Phoebe’s contention that appellee’s smoking irritated the child’s
allergies, as well as her similar allegation of irritation caused
by the spraying of perfume on her dress by appellee’s mother, the
child’s great-grandmother.
The trial judge found that the
allegations of irritation of the child’s allergies were not
supported by medical evidence and that it was “reasonable to
assume that everyone involved in Shana’s caretaking would be
willing to refrain from any activity that could jeopardize
Shana’s physical health and well-being.”
Next, the trial judge explained his conclusion that
evidence introduced at the hearing before the commissioner to the
effect that appellee had been abusive with his first wife in 1984
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did not preclude the granting of his petition.
The trial judge
noted that there was no evidence that appellee had been violent
with his second wife or his present spouse nor was there evidence
that he had ever been abusive to any of his children.
Finally,
emphasizing the fact that appellee did not have a close
relationship with his son who had not been exercising the limited
visitation rights granted him in the divorce decree, the trial
judge concluded that it was in the child’s best interest to
maintain contact with her paternal family through visitation with
her grandfather.
We commence our discussion of Phoebe’s argument that
appellee failed to establish that grandparental visitation was in
Shana’s best interest by acknowledging the general rule, that in
the absence of a transcript of proceedings, a reviewing court
must assume that the record supports the factual determinations
of the trial judge.
(1993).
Dillard v. Dillard, Ky. App., 859 S.W.2d 134
We would also emphasize the fact that our General
Assembly, by enactment of Kentucky Revised Statute (KRS) 405.021,
has determined that grandparental visitation is an established
right which will be recognized and enforced by the courts if it
is in the child’s best interest to do so.
Ky. App., 971 S.W.2d 830 (1998).
Mustaine v. Kennedy,
In a carefully detailed ten-
page opinion, the trial judge provided the findings and
conclusions supporting his decision that our Supreme Court found
essential in King v. King, Ky., 828 S.W.2d 630 (1992), and which
this court reaffirmed in Mustaine.
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Despite Phoebe’s contention that evidence of the
child’s best interest falls far short of that supporting the
award of grandparental visitation rights in King, we are
nevertheless convinced that the trial judge’s ruling in this case
adheres to the King court’s view of the factors to be considered
in resolving such matters:
If a grandparent is physically, mentally and
morally fit, then a grandchild will
ordinarily benefit from contact with the
grandparent. That grandparents and
grandchildren normally have a special bond
cannot be denied. Each benefits from contact
with the other. The child can learn respect,
a sense of responsibility and love. The
grandparent can be invigorated by exposure to
youth, can gain an insight into our changing
society, and can avoid the loneliness which
is so often a part of an aging parent’s life.
These considerations by the state do not go
too far in intruding into the fundamental
rights of the parents. . . .
828 S.W.2d at 632.
Here, the trial judge addressed each of
Phoebe’s concerns and found no evidence that appellee was
physically, mentally, or morally unfit for the responsibility of
caring for his grandchild.
These findings, coupled with the fact
that the trial judge utilized the proper legal standard, are
sufficient to dispel Phoebe’s contention that appellee failed to
satisfy the requirements of the statutory “best interest” test.
Neither do we find persuasive Phoebe’s contention that
because the trial judge did not personally “try” the case or
directly observe the demeanor of the witnesses, he acted
arbitrarily and capriciously in failing to follow the
commissioner’s recommendations.
Ky. R. Civ. P. (CR) 53.06(2)
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explicitly grants the trial judge complete discretion as to the
use of the commissioner’s report:
The court after hearing may adopt the report,
or may modify it, or may reject it in whole
or in part, or may receive further evidence,
or may recommit it with instructions.
The extent of the trial judge’s authority in this regard was
recently considered by the Supreme Court in Eiland v. Ferrell,
Ky., 937 S.W.2d 713, 716 (1997), in which it removed any doubt as
to the intent of the rule:
A great many circuit courts in Kentucky
make use of domestic relations commissioners.
The rules relating to such commissioners are
found in CR 53.03-53.06. . . . With respect
to the report, the court may adopt, modify or
reject it, in whole or in part, and may
receive further evidence or may recommit it
with instructions. In sum, the trial court
has the broadest possible discretion with
respect to the use it makes of reports of
domestic relations commissioners. Haley v.
Haley, Ky.App., 573 S.W.2d 354 (1978). See
also Basham v. Wilkins, Ky.App., 851 S.W.2d
491 (1993), which confirmed the right of the
trial court to re-evaluate the evidence and
reach a different conclusion than the
commissioner. . . . (Emphasis added).
Furthermore, due process does not require that the person who
actually receives the evidence make the final determination;
rather, it focuses upon the appraisal and evaluation of evidence
supplied to the decision maker.
There is no requirement that the
decision maker have an opportunity to personally observe the
demeanor of the witnesses.
Bentley v. Aero Energy, Inc., Ky.
App., 903 S.W.2d 912 (1995).
Thus, because the trial judge’s detailed findings and
conclusions make clear he evaluated the evidence before the
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commissioner, we cannot say he abused his discretion merely
because he reached a different result.
The judgment of the Wolfe Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tonya L. Mounts
Lexington, Kentucky
Billy L. Oliver
Campton, Kentucky
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