Bowen v. Bowen

2012 Ark. App. 403

421 S.W.3d 339

Nicholas BOWEN, Appellant

v.Letizia and David BOWEN, Appellees.

No. CA 11–868.

Court of Appeals of Arkansas.

June 27, 2012.

Cecilia Ashcroft, Walthall Law Firm, P.A., Malvern, for Appellant.

Michelle M. Strause, The Farrar Firm, Hot Springs, for Appellee.

LARRY D. VAUGHT, Chief Judge.

Appellant Nicholas Bowen (Nick) argues on appeal that the circuit court erred in granting his parents, appellees Letizia and David Bowen, visitation with their grandchildren (Alex, age twelve and Kate, age ten) under Arkansas's grandparent-visitation statute. Specifically, he claims that there was insufficient evidence to support the trial court's conclusion that the court-ordered grandparent visitation was in his children's best interest. We agree and reverse.

Nick Bowen and Helene Wade divorced in 2005, and they were awarded joint custody of their two minor children—with Nick having custody in the summer and Helene having custody during the school year. The following year, the parties entered into an agreement in which they alternated care of the children on a weekly basis. In 2010, Nick and Helene agreed to homeschool their children in Nick's home. Nick's current wife, Amy Bowen, homeschooled the kids with the assistance of their mother, Helene.

In September 2010, Nick petitioned for ex parte drug testing and immediate custody of the children based on Helene's drug use. After Helene tested positive for illegal substances, the court awarded Nick sole custody of the minor children and visitation to Helene. The trial court also allowed Nick's parents, Letizia and David, to intervene and seek grandparent visitation in the underlying domestic-relations case between Nick and Helene.

The trial court set the hearing on grandparent visitation for April 2011 and ultimately ordered that Letizia and David receive visitation with their grandchildren, one weekend per month with extended time during the summer and holidays. The court further ordered that this time be taken from Nick's time with his children. It is from this order that Nick appeals.

We review domestic-relations proceedings, such as visitation requests, de novo on the record. Pippinger v. Benson, 2011 Ark. App. 442, at 9–13, 384 S.W.3d 614. In reviewing the circuit court's order, we give deference to the circuit court's findings and review those findings under the clearly erroneous standard, and we will not reverse unless we are left with a definite and firm conviction that a mistake has been made. 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. at 12. Further, when visitation is at issue, we will not reverse the circuit court's decision absent an abuse of discretion. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008).

Grandparent visitation is governed by Arkansas Code Annotated section 9–13–103Repl.2009). Grandparent visitation is a statutorily created right and in derogation of common law; therefore, we must strictly construe the statute. Ark.Code Ann. § 9–13–103. Specifically, our statute states, in pertinent part:

(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:

(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;

...

(c)(1) There is a rebuttable presumption that a custodian's decision denying or limiting visitation to the petitioner is in the best interest of the child.

(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:

(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.

(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:

(1)(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;

(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or

(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or (2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm 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.

Ark.Code Ann. § 9–13–103(b)–(e).

Here, Letizia and David have standing to petition for visitation because the marriage of the grandchildren's parents ended by divorce in 2005.¹ We note that the rationale behind Arkansas's requirement that the marriage be severed before giving grandparents standing to seek visitation must (at least in great part) be in response to a concern that the custodial parent's judgment may contain animosity toward the noncustodial parent and/or the grandparents as a result of the divorce. And, with an intact marriage, the grandparents have a greater “voice” in this situation because their own child is a player in the parenting paradigm. Uniquely, we note that in this case the increased amount of visitation that Letizia and David sought (and were denied) was exclusively at their own son's discretion.

Under the statute, there is a rebuttable presumption that Nick's decision to limit the time his children spent with his parents was in his children's best interest. Ark.Code Ann. § 9–13–103(c)(1). To rebut this presumption, Letizia and David were first required to prove by a preponderance of the evidence that they had established a significant and viable relationship with the children. Ark.Code Ann. § 9–13–103(c)(2)(A). The parties agreed that, prior to the divorce, in the early years of the children's lives, they were with Nick's parents a great deal. Letizia and David took the children on trips, babysat them, and assisted in transporting them to various activities and events. And, as the trial court found, after the parties' relationship became strained, the grandparents went “beyond the call of duty” to see the children at school. In fact, there is no question that the evidence supports a conclusion that Letizia and David had a significant and viable relationship with the children. Therefore, the primary issue we are concerned with on appeal is whether visitation with Letizia and David was in the children's best interest.

To prove that visitation with Letizia and David was in Alex's and Kate's best interests, the grandparents had to show (1) that they have the capacity to give the children love, affection, and guidance, (2) that the loss of the relationship between them and their grandchildren would likely cause harm to the grandchildren, and (3) that they are willing to cooperate with their son if visitation is allowed. In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d. 266. Two of these elements are beyond question. There is no dispute that Letizia and David are capable of providing love, affection, and guidance toward Alex and Kate. There is clearly animosity between the grandparents and their son, but there is nothing in the record to show that this took away from their ability to provide love, affection, and guidance to the grandchildren. The record also unquestionably supports the finding that Letizia and David are willing to cooperate with Nick if visitation is allowed. Throughout their testimony, the grandparents stated that they would comply with any instruction given to them by the circuit court. Therefore, the question before us now is very narrowly set out. We must consider whether Letizia and David adequately carried their burden of showing that the relationship between them and their grandchildren had been lost and that the loss of the relationship would likely cause harm to Alex and Kate. Ark.Code Ann. § 9–13–103(e)(1–3).

On appeal, Nick first contests the trial court's finding that Letizia and David had “been effectively denied reasonable visitation with the minor children.” Nick relies on the supreme court's decision in Oldham, 372 Ark. at 159, 271 S.W.3d at 507. In Oldham, our supreme court reversed an order granting grandparent visitation. There, the grandparents were allowed to see the grandchild as much as they wanted. The impetus for the grandparents' filing the petition was to ensure that said access would continue in the future. The supreme court held that the filing of the petition was premature and that the grandparents had failed to show that the loss of the grandparent-grandchild relationship would harm the grandchild. Id., 372 Ark. at 165, 271 S.W.3d at 510–12.

Here, the evidence showed that, after the divorce, Nick's relationship with his father deteriorated. The record establishes that Nick was fired by his father's plumbing company; Nick later married Amy; he distanced himself from his parents; and he and his parents only had contact while attending family events or the children's activities. However, the evidence also shows that at no time during the strained relationship were Nick's parents completely denied contact with the children. According to the evidence introduced at trial, the grandparents eventually settled into a weekly visit with the...