Grant v. Richardson
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-556
Opinion Delivered
March 18, 2009
APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
[NO. DR-03-258]
JAMES G. GRANT
APPELLANT
V.
HONORABLE RICE VAN AUSDALL,
JUDGE
BETTY RICHARDSON
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant James Grant appeals the trial court’s order awarding grandparent visitation
to appellee Betty Richardson. James argues on appeal that the order was premature and
unsupported by findings and competent evidence. We affirm.
In January 1997, James married Cassie Richardson. They had two children, K.G. and
T.G., born July 24, 1997, and August 17, 2001, respectively. Cassie and James divorced in
2003. The divorce decree provided for joint custody, with Cassie having primary physical
custody and James having visitation. James exercised visitation initially, but he discontinued
it when he took an out-of-state job.
Cassie’s mother, Betty, became concerned about the well being of K.G. and T.G. after
Cassie became romantically involved with Larry Matney. Eventually, Betty filed a petition
seeking to have herself appointed temporary guardian of K.G. and T.G. Betty alleged, among
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other things, that Cassie, K.G., and T.G. were living with Larry and that he was abusing
them. James consented to the guardianship, and an order granting the temporary-guardianship
petition was entered by the trial court in June 2006. In December 2006, James petitioned the
court seeking termination of the temporary guardianship and custody of K.G. and T.G. In
response, Betty sought permanent guardianship of the children or, in the alternative,
grandparent visitation.
At the hearing in December 2007, Betty presented the testimony of two of K.G.’s
teachers, who testified that K.G. had shown great academic improvement since being cared
for by Betty. The teachers also testified that Betty had consistently signed K.G.’s school
agenda book and attended parent-teacher conferences. Betty also presented the testimony of
two of her neighbors, who testified that Betty was taking excellent care of K.G. and T.G. and
that the children were very happy.
David Richardson, Cassie’s father and Betty’s ex-husband, testified that Betty had been
taking good care of the children. He also testified that Cassie was living with him currently
and that he had no objection to Cassie having custody of the children as long as Larry, who
“mistreated” Cassie and the children, was not involved.
Cassie testified that she did not want custody of her children but that she did not want
her mother, Betty, to have permanent guardianship of them. Instead, she wanted James to
have custody of the children. She admitted that when she and James were married, he struck
her in the face and broke her jaw. However, she maintained that James had changed since
their divorce and that he would be a good father.
Much of Betty’s testimony explained why she sought temporary guardianship over the
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children and all she had done to care for the children while she was their guardian. She
testified that she did not prevent Cassie and James from exercising visitation; however, she did
state that she would not let the children be around Cassie if she was with Larry.
James testified that after the divorce, he regularly visited his children but that his visits
stopped when he took a job on a cruise ship. While away, he received calls from Betty
concerned about the children living with Larry. James wanted the children out of the abusive
situation, and therefore, he consented to Betty’s temporary guardianship with the condition
that he would seek full custody of the children upon his return.
The trial court issued an order granting James’s petition for custody.1 The trial court
also found that Betty was entitled to grandparent visitation pursuant to Arkansas Code
Annotated section 9-13-103 (Repl. 2008), stating:
The court finds that Betty Richardson has been the custodian of the children for many
months. The Court finds that she is the person that stepped up and took the children
when [James] Grant was off somewhere on the seven seas, and Cassie Grant was living
with a wife beater and drunkard.
James appeals the trial court’s award of grandparent visitation. Relying upon Oldham v.
Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008), James first insists that the trial court
prematurely awarded grandparent visitation because there was no evidence that Betty had
been or would have been denied reasonable visitation with K.G. and T.G. James also argues
that the trial court erred in awarding grandparent visitation because there was a lack of
findings and competent evidence to support findings that demonstrated that it was in the best
interests of the children to have grandparent visitation.
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Betty has not appealed this ruling.
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We review domestic-relations cases de novo on the record, and we will not reverse
the trial court’s findings unless they are clearly erroneous. Hunter v. Haunert, 101 Ark. App.
93, 270 S.W.3d 339 (2007). A trial court’s finding is clearly erroneous when, although there
is evidence to support it, the reviewing court on the entire record is left with a definite and
firm conviction that a mistake has been committed. Id. We give due deference to the superior
position of the trial court to view and judge the credibility of the witnesses. Id. This deference
is even greater in cases involving children, as a heavier burden is placed on the judge to utilize
to the fullest extent his or her powers of perception in evaluating the witnesses, their
testimony, and the best interest of the children. Id.
The grandparent statute provides that a grandparent may petition for reasonable
visitation rights with her grandchildren if the marital relationship between the parents and the
child has been severed by divorce. Ark. Code Ann. § 9-13-103(b)(1). However, there is a
rebuttable presumption that a custodian’s decision denying or limiting visitation to a
grandparent is in the best interests of the child. Ark. Code Ann. § 9-13-103(c)(1). To rebut
the presumption, the grandparent must prove by a preponderance of the evidence that:
(A) The petitioner has established a significant and viable relationship with the child
for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
Ark. Code Ann. § 9-13-103(C)(2)(A), (B).
James, relying upon Oldham, urges that the trial court’s order awarding grandparent
visitation is premature because there was no evidence that Betty had ever been or ever would
have been denied reasonable visitation with K.G. and T.G. He argues there must be “some
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unreasonable denial of the visitation before the grandparent[-]visitation statute can be utilized
to force a parent to allow a grandparent to have specific visitation rights.”
In Oldham, maternal grandparents sought grandparent visitation after their daughter
died in a car accident and her ex-husband was awarded full custody of their daughter. The
trial court awarded grandparent visitation, holding that the grandparents rebutted the
presumption that the child’s father’s decision denying or limiting visitation was in the best
interest of the child. In reversing the trial court’s order of visitation, our supreme court held
that there was a lack of evidence supporting the finding that the loss of the relationship would
result in harm because, among other things, there was “no evidence presented at trial that the
relationship between the [grandparents] and [the child] had been or would be lost.” Oldham,
372 Ark. at 165–66, 271 S.W.3d at 511. The maternal grandmother testified that:
[A]t the moment, [the child’s father] is very willing to work with me and let me have
[the child] as much as I want her. But I do know that people get remarried and it does
affect that relationship. I just want to know that in five years time, if he should
remarry, that I have a chance to still see her. It is kind of a safeguard for the future.
Right now he has been more than willing to let me have her when I need her and
want to see her.
Oldham, 372 Ark. at 166, 271 S.W.3d at 511.
Oldham is distinguishable from the case at bar. In Oldham, there was no evidence to
support the finding that grandparent visitation was in the child’s best interest because the facts
were undisputed that the grandparents had not been unreasonably denied visitation. As stated
by the supreme court, there was no evidence that the relationship between the grandparents
and their grandchild “had been or would be lost.” The parties there were not involved in any
type of a custody, guardianship, or visitation dispute concerning the child. Further, the
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grandmother in Oldham testified that she was seeking specified visitation not because she had
been denied visitation by the child’s father, but to protect her right to see her grandchild in
the future.
To the contrary, there is evidence in the instant case supporting a finding that
grandparent visitation was in the children’s best interests because evidence was presented that
demonstrated harm would come to K.G. and T.G. should they discontinue their relationship
with Betty. Betty had full custody, via the guardianship, of her grandchildren and has
provided one-hundred percent of their care for eighteen months. Further, the facts
demonstrate that without court ordered visitation, Betty would likely have been denied
reasonable visitation with the children. Betty and James are adversaries in a custody dispute,
and there was testimony that they did not like each other. In response to James’s testimony
that he planned to move the children to Kentucky, Betty stated, “I’m not real confident that
if [James] had custody of the kids that I’d get to see them regularly.” Thus, unlike Oldham,
there was evidence that the relationship between the children and Betty “had been or would
be lost” and that the children would suffer harm without grandparent visitation. As such, we
hold that Oldham is distinguishable and that it was not premature for the trial court to award
grandparent visitation.
For his second argument, James contends that the trial court erred in awarding
grandparent visitation to Betty because there was a lack of findings made and/or competent
evidence presented to support findings demonstrating that it was in the best interests of the
children to have grandparent visitation. James concedes that the trial court’s findings support
the statutory requirement that a significant and viable relationship exist between Betty and her
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grandchildren. As such, to establish grandparent visitation, Betty had to prove that visitation
was in the best interests of her grandchildren. Ark. Code Ann. § 9-13-103(c)(2)(B).2 Because
the grandparent-visitation statute is in derogation of or at variance with the common law, it
must be strictly construed. Oldham, supra.
Although there was no express finding that grandparent visitation was in the children’s
best interests, James cites to no authority that the lack of such a finding requires reversal.
Importantly, when an appeal is reviewed de novo, this means the whole case is open for
review. See Stehle v. Zimmerebner, ___ Ark. ___ , ___ S.W.3d ___ (Jan. 30, 2009). De novo
review does not mean that the findings of fact of the trial court are dismissed out of hand and
that the appellate court becomes the surrogate trial judge. Id. What it does mean is that a
complete review of the evidence and record may take place as part of the appellate review to
determine whether the trial court clearly erred in either making a finding of fact or in failing
to do so. Id. Therefore, while the trial court in the instant case may have not made express
factual findings on the issue of the best interests of the children, when opening the entire case
for review, we hold that there was ample evidence presented that could have supported the
2
Arkansas Code Annotated section 9-13-103 (e) provides more detail concerning
what is required to establish that visitation with the grandparent is in the best interests of
the child:
(e) To establish that visitation with the petitioner is in the best interest of the child,
the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to
harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the
child is allowed.
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finding that grandparent visitation was in the best interests of K.G. and T.G. See Hamilton v.
Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999) (stating that “[w]here the chancellor
fails to make findings of fact about a change in circumstances, this court, under its de novo
review, may nonetheless conclude that there was sufficient evidence from which a chancellor
could have found a change in circumstances”) (emphasis in original).
To prove that grandparent visitation was in the best interests of K.G. and T.G., Betty
had to establish, by a preponderance of the evidence, that she had the capacity to give the
children love, affection, and guidance, that the loss of the relationship would harm the
children, and that Betty was willing to cooperate with James concerning visitation. Ark. Code
Ann. § 9-13-103(e)(1)–(3). The testimony of two of K.G.’s teachers, two of Betty’s
neighbors, Betty’s ex-husband, and Betty clearly demonstrated Betty’s ability to provide love,
affection, and guidance to the children. Based on this evidence and the fact that Betty served
as the children’s guardian for eighteen months, there is no doubt that harm would come to
the children if they are not permitted to maintain their relationship with Betty. Finally, there
was testimony presented that when Betty was serving as guardian, she cooperated with James
and Cassie concerning their visitation. This evidence supports the conclusion that she would
fully cooperate with James for grandparent visitation. Accordingly, under our de novo review,
we hold that the trial court did not clearly err in entering an order awarding grandparent
visitation.
Affirmed.
H ART and B ROWN, JJ., agree.
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