FUGATE (GREGORY ALAN) VS. PARR (PATRICIA)
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000688-ME
GREGORY ALAN FUGATE
v.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 07-CI-00413
PATRICIA PARR
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND WINE, JUDGES; HARRIS,1 SENIOR JUDGE.
NICKELL, JUDGE: Gregory Alan Fugate (Alan) has appealed from the March
24, 2009, judgment of the Breathitt Family Court which granted overnight
visitation with his three-year-old daughter, Abigail, to Patricia Parr (Pat), the
child’s maternal grandmother. For the following reasons, we affirm.
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Abigail was born on April 26, 2006, to Alan and his future wife,
Cassaundra Warren Fugate. Alan and Cassaundra were married on October 8,
2006, but by March of 2007 had separated and Cassaundra filed for divorce shortly
thereafter. Before the divorce could be finalized, Cassaundra was killed in a motor
vehicle accident in late July 2007. During the marriage, Alan provided a majority
of Abigail’s caregiving to accommodate Cassaundra’s work schedule. Although
Abigail lived with her mother, Alan continued to provide the majority of her care
after the separation until Cassaundra obtained an Emergency Protective Order
(EPO) against him on June 4, 2007.2 Following Cassaundra’s death, Abigail
returned to live with her father.
Alan and Pat had known each other for many years and enjoyed a
good relationship. On the day of Cassaundra’s death, Alan voluntarily took
Abigail to Pat’s home to spend the night so that they might comfort one another.
Shortly thereafter, Alan and Pat devised a visitation schedule that would
accommodate Pat’s work schedule. Abigail subsequently visited her grandmother
every Tuesday and Thursday from 10:00 a.m. to 5:00 p.m. However, Alan refused
to allow overnight visits with Pat, asserting he wanted his daughter home with him
at night, he did not want Abigail exposed to the use of alcohol which occurred at
the Parr residence, he was fearful of Abigail’s safety around the Parr’s dogs, and
was concerned about Pat’s husband’s anger issues. Prior to Cassaundra’s death,
Abigail visited with her grandparents on a near-daily basis without complaint.
2
The EPO was subsequently dismissed following a hearing before the Breathitt District Court.
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On October 18, 2007, Pat and her husband, Thomas Parr (Tom),3 filed
a Petition for Grandparent Visitation pursuant to KRS 405.021(3). Alan objected
to the petition, contending that he, as the sole living parent, had a fundamental
right to make all decisions concerning the care, custody and control of his
daughter. A hearing was held on August 1, 2007, following which a directed
verdict was granted against Tom for lack of standing to prosecute the action. The
trial court further ordered Alan and Pat to attempt to negotiate a settlement of the
issues if possible, and if no settlement could be reached, the parties were ordered to
submit post-trial memoranda upon which the trial court would base its decision.
An amicable resolution could not be had, and on March 24, 2009, the trial court
rendered a thirty-five page judgment granting Pat limited visitation including
overnight stays, finding that such visitation was in Abigail’s best interest after
analyzing the factors set forth in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App.
2004). This appeal followed.
Alan contends the factors set forth in Vibbert and relied upon by the
trial court are too broad and do not give adequate deference to his rights as a fit
parent to determine the whereabouts of his child. He claims that under Troxel v.
Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), his wishes as a fit
parent should be controlling as to the care, custody and control of his minor
daughter and since the trial court failed to give any deference or special weight to
3
Tom and Pat married sometime in 2003. Tom is Cassaundra’s step-father and Abbie’s stepgrandfather.
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his decisions, the judgment must therefore be reversed.4 Pat argues the trial court
correctly considered all of the required factors including Alan’s wishes in reaching
its decision and that she proved visitation was in Abigail’s best interest. Finally,
she contends that even a fit parent’s decision is not binding on a trial court but is
merely one of the factors to be considered in making a determination. We agree
with Pat.
In Vibbert, this Court, en banc, overruled the previous standard set
forth in Scott v. Scott, 80 S.W.3d 447 (Ky. App. 2002), insofar as the previous
standard required a grandparent to prove harm would come to the child if the
requested visitation were denied. The Court then offered the following guidance
for trial courts in grandparent visitation cases:
We now hold that the appropriate test under KRS
405.021 is that the courts must consider a broad array of
factors in determining whether the visitation is in the
child’s best interest, including but 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;
the wishes and preferences of the child. The grandparent
seeking visitation must prove, by clear and convincing
evidence, that the requested visitation is in the best
interest of the child. We retain this standard of proof
from Scott, noting that the Supreme Court has mandated
its use when “the individual interests at stake in a state
4
Although there are constitutional undertones to Alan’s argument, no such challenge was
leveled in the trial court nor is such an argument properly before this Court.
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proceeding are both particularly important and more
substantial than mere loss of money.” Santosky v.
Kramer, 455 U.S. 745, 756, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982) (citation omitted). Given that these cases
involve the fundamental right of parents to raise their
children as they see fit without undue interference from
the state, the use of this heightened standard of proof is
required.
Vibbert, at 295.
In its well-reasoned and lengthy judgment, the trial court clearly
considered all of these factors and properly concluded visitation was in Abigail’s
best interest. The trial court also took into consideration Alan’s desires and
concerns as expressed in his objection to the overnight visits. This is especially
evident in light of the trial court’s numerous restrictions on the visitation—that
there be no alcohol consumption or use of illegal drugs, no out-of-county trips
without Alan’s prior consent, that Tom not be left unsupervised with Abigail nor
be allowed to discipline her, Abigail was not to be taken to any church or religious
services without Alan’s consent, the Parr’s dogs be kept fenced and not allowed to
roam or have contact with Abigail without Alan’s consent, and that no derogatory
remarks be made about Alan during the visits. These rulings indicate the trial
court’s grasp of Alan’s concerns and its clear intention to give deference to Alan’s
desires while still acting in Abigail’s best interest. On appeal, this Court is not
authorized “to substitute its own judgment for that of the trial court on the weight
of the evidence, where the trial court’s decision is supported by substantial
evidence.” Leveridge v. Leveridge, 997 S.W.2d 1, 2 (Ky. 1999) (citation omitted).
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“We will not reverse a trial court’s award of visitation unless it constitutes a
‘manifest abuse of discretion, or [was] clearly erroneous in light of the facts and
circumstances of the case.’” Grant v. Lynn, 268 S.W.3d 382, 390 (Ky. App. 2008)
(quoting Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000)). The testimony
adduced at trial was clearly sufficient to support the trial court’s findings. Thus,
we conclude there was no clear error or abuse of discretion and the judgment will
therefore not be disturbed.
Finally, our review of the applicable statutes and precedential caselaw
does not support Alan’s contention that a fit parent’s desires are controlling and
binding on a trial court’s decision whether to award grandparent visitation. Rather,
such wishes and desires are but one factor to be considered under Vibbert’s
modified best interest test. Grant, 268 S.W.3d at 384. As we have previously
held, the trial court weighed all of the required factors in making its decision and
gave due deference to Alan’s wishes as a fit parent. Despite Alan’s argument to
the contrary, his reliance on Troxel is misplaced. Troxel requires a fit parent’s
decision to be considered, given deference and presumed to be in the child’s best
interest. However, Troxel and Vibbert also set forth the proper methods for
challenging a fit parent’s decision in the context of grandparent visitation. Were
we to adopt Alan’s theory, the need for such procedures would be obviated and the
purpose of KRS 405.021 would necessarily be negated. We are unwilling to make
such a sweeping change in the law.
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For the foregoing reasons, the judgment of the Breathitt Family Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Darrell A. Herald
Jackson, Kentucky
Kathryn Burke
Pikeville, Kentucky
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