STACEY GREGORY v. MARK GREGORY AND GAIL ROBINSON
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RENDERED:
AUGUST 17, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002811-MR
STACEY GREGORY
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 99-CI-00115
v.
MARK GREGORY AND
GAIL ROBINSON
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND McANULTY, JUDGES.
BUCKINGHAM, JUDGE: Appellant Stacy1 Ellen Gregory appeals from an
order of the Bullitt Circuit Court granting visitation with her
child to the child’s grandmother, Appellee Gayle2 Robinson.
We
affirm.
Stacy Ellen Gregory and Mark Allen Gregory were married
on February 21, 1997.
On November 24, 1997, Stacy gave birth to
their only child, a daughter.
Stacy filed a petition to dissolve
1
Although the appellant’s name in the notice of appeal is
spelled “Stacey”, the correct spelling is “Stacy.”
2
Although the appellee’s name in the notice of appeal is
spelled “Gail”, the correct spelling is “Gayle.”
her marriage from Mark in the Bullitt Circuit Court on February
19, 1999.
On May 26, 1999, the court entered a decree dissolving
the marriage and awarding custody of the child to Stacy.
In November 1999, Mark moved the court to set a
reasonable child visitation schedule so that he could visit with
his daughter.
On the same day, Mark’s mother, Gayle Robinson
filed a motion for leave to file an intervening complaint.
Therein, she sought to establish her grandparent visitation
rights pursuant to KRS3 405.021.
Robinson’s motion to intervene
was granted, and the matter was thereafter referred to a domestic
relations commissioner (DRC) for hearing.
On March 17, 2000, the DRC entered a report and found
that:
Having heard and considered all the evidence,
the Commissioner believes that both Mark and
Gayle have a genuine love for [the child],
and in the event it is shown that they do not
pose a danger to the child, it is in the
child’s best interest to have an ongoing
relationship with both. However, given the
extremely serious incidents of violence in
Mark’s past, and the seriousness of the
allegations against Gayle, the Commissioner
should err on the side of caution in making
sure that the child is protected.
The DRC then ordered Mark and Gayle to undergo psychological
evaluations prior to any decision being made on unsupervised
visitation rights.
Meanwhile, Mark was granted supervised
visitation with the child, and Gayle was allowed to see the child
during Mark’s visitation.
3
Kentucky Revised Statutes.
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On August 3, 2000, a psychological evaluation report
concerning Gayle was filed with the court by a licensed clinical
psychologist.
The report stated that there did not appear to be
any reason Gayle should be denied visitation with her
granddaughter.
report.
On September 21, 2000, the DRC filed a second
In that report, the DRC recommended that Gayle be
granted unsupervised visitation with the child on the fourth
Saturday of each month from 9:00 a.m. until 7:00 p.m.
He further
recommended that Gayle not permit the child to have unsupervised
contact with Mark.
The trial judge followed the DRC’s
recommendations and entered an order on December 1, 2000,
granting Gayle visitation with the child.
This appeal followed.
Stacy raises two arguments on appeal.
First, she
contends that Kentucky’s grandparent visitation statute, KRS
405.021, is unconstitutional in light of a recent U.S. Supreme
Court ruling.
Stacy extends her constitutional challenge further
by arguing that the statute is void as a matter of public policy
because it interferes with the custodial parent’s constitutional
rights.
Second, she maintains that the trial court abused its
discretion in granting Gayle grandparent visitation.
For the
below stated reasons, we reject both arguments.
First, Stacy argues that KRS 405.021 is
unconstitutional in light of a recent decision of the U.S.
Supreme Court in Troxel v. Granville, 120 S.Ct. 2054 (2000).
KRS
405.021 provides in relevant part that “[t]he Circuit Court may
grant reasonable visitation rights to either the paternal or
maternal grandparents of a child and issue any necessary orders
-3-
to enforce the decree if it determines that it is in the best
interest of the child to do so.”
KRS 405.021(1).4
We will not reach the merits of Stacy’s arguments on
this issue because she failed to give notice to the Attorney
General that she was challenging the constitutionality of the
statute.
Our rules of procedure require that “[w]hen the
constitutionality of an act of the General Assembly affecting the
public interest is drawn into question in any action, the movant
shall serve a copy of the pleading, motion or other paper first
CR5 24.03.
raising the challenge upon the Attorney-General.”
Likewise, KRS 418.075 requires the Attorney General to be served
with a copy of the petition challenging the constitutional
validity of a statute so that he may be heard on this issue.
KRS
418.075(1).
We have examined the record and determine that the
Attorney General was never notified by Stacy of her
constitutional challenge to KRS 405.021.
The first mention of
the Troxel case is in the DRC’s report of September 21, 2000.
Therein, the DRC notes Stacy’s argument that grandparent
visitation is barred by the Troxel case.6
The next mention of
the Troxel case and the constitutional validity of KRS 405.021 is
4
The Troxel case considered the constitutionality of a
broad visitation statute enacted by the state of Washington. The
Kentucky grandparent visitation statute, which is much narrower
in scope, was found to be constitutional by the Kentucky Supreme
Court in King v. King, Ky., 828 S.W.2d 630, 632 (1992).
5
Kentucky Rules of Civil Procedure.
6
The DRC also concluded that the Troxel case did not
preclude the court from granting grandparent visitation.
-4-
found in the record in Stacy’s exceptions to the DRC’s report.
There is no indication that the exceptions and motion filed by
Stacy were served on the Attorney General.
Because the Attorney
General was not given notice, we may not consider the issue of
the constitutionality of the statute.
See Adventist Health
Systems v. Trude, Ky., 880 S.W.2d 539, 542 (1994), and Maney v.
Mary Chiles Hosp., Ky., 785 S.W.2d 480, 482 (1990).
Stacy also maintains that the statute is void as a
matter of public policy.
She asserts in this regard that the
statute interferes with the custodial parent’s constitutional
rights.
Again, because this argument is a constitutional
challenge to the validity of the statute, we may not consider it
due to the failure to give notice to the Attorney General.
Trude, supra; Maney, supra.
Stacy’s second argument is that the trial court abused
its discretion in granting grandparent visitation to Gayle.
In
her brief, Stacy makes various allegations against Gayle,
including allegations that Gayle has been a child abuser.
However, Stacy did not cite to the record so that we could review
the evidence to support her allegations.
When Stacy designated the trial court record to this
court pursuant to CR 75.01, she designated “all pleadings and
exhibits at trial but does not include any mechanically recorded
testimony of the proceedings[.]”
Therefore, we do not have
before us a record of the testimony of any of the parties or
witnesses who testified before the DRC or trial court.
CR
76.12(4)(c)(iv) requires that the argument portion of a brief
-5-
contain “ample supportive references to the record.”
See also CR
76.12(4)(c)(iii).
The allegations made by Stacy in her brief are serious.
Gayle asserts in her brief that Stacy offered “no objective proof
of abuse” into the record to support the accusations.
In Stacy’s
reply brief, Stacy did not take the opportunity to cite to
evidence in the record.
Rather, she merely asserted that Gayle
had not denied the allegations in her brief.
While this failure
to cite to the record would be sufficient for this court to
strike Stacy’s brief,7 we find this an extreme remedy and so turn
to the merits of her argument that the court abused its
discretion in granting Gayle visitation with her granddaughter.
This court noted in Colonial Life & Acc. Inc. Co. v.
Weartz, Ky. App., 638 S.W.2d 891 (1982), that “we are required to
assume that any evidence in the record not before us supports the
findings of the lower court[.]” Id. at 893.
Thus, we assume that
the testimony given in this case, which has not been made a part
of the record for our review, supports the findings of the trial
court that it would be in the best interest of the child for
Gayle to have grandparent visitation.
Therefore, we must
conclude that the trial court did not abuse its discretion in
this regard.
The order of the Bullitt Circuit Court is affirmed.
ALL CONCUR.
7
See CR 76.12(8)(a).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Joseph J. Wantland
Shepherdsville, Kentucky
Paul H. Riley, Jr.
Shepherdsville, Kentucky
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