Hillhouse v. Fitzpatrick

301 P.3d 891

In re the Marriage of Diana HILLHOUSE, Petitioner/Appellant,

v. Jeffrey Michael FITZPATRICK, Respondent,andMike Fitzpatrick and Janie Fitzpatrick, Intervenors/Appellees.

No. 109,565.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

March 29, 2013.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Cindy H. Truong, Trial Judge.

REVERSED

Aubrie E. Comp, Gary Briggs, Legal Aid Services of Oklahoma, Inc., Oklahoma City, Oklahoma, for Petitioner/Appellant.

Roger Reneau, Bridget M. Childers, Reneau & Childers, Midwest City, Oklahoma, for Intervenors/Appellees.

JOHN F. FISCHER, Presiding Judge.

¶ 1 Diana Hillhouse (Mother) appeals the district court's order granting Mike Fitzpatrick and Janie Fitzpatrick (Paternal Grandparents) visitation with the minor child CF. Mother argues that the district court lacked jurisdiction or, if it had jurisdiction, it incorrectly applied the law.

BACKGROUND

¶ 2 CF was born to Mother and Jeffrey Michael Fitzpatrick (Father) during their marriage. On July 7, 2010, Mother filed a petition seeking a divorce from Fitzpatrick. Mother requested sole custody of CF due to domestic abuse. On August 19, 2010, a temporary order was entered in the divorce proceeding, which granted sole custody to Mother and suspended Father's visitation with CF. Mother also obtained a protective order preventing Father's contact with her or CF.

¶ 3 On November 23, 2010, Paternal Grandparents filed a “Motion for Permissive Intervention” in the divorce proceeding and sought an order allowing visitation with their grandchildren. They alleged that they had established a loving and close relationship with their two-year-old grandson, CF, prior to Mother's separation from Father and that Mother had recently given birth to a daughter, who they had not been allowed to see. Paternal Grandparents claimed that they had a “conditional right to intervene” in the divorce proceeding pursuant to “12 O.S. § 2024(B)(1)” and “10 O.S. § 5.” ¹ Mother objected to Paternal Grandparents' motion and sought its dismissal, arguing that they had failed to allege sufficient grounds for the district court to interfere with her right to make decisions regarding her children. Paternal Grandparents amended their motion to include allegations regarding “the seriousness of the situation between [Mother and Father] at separation including allegations of parental fitness, drugs, alcohol, and domestic abuse.”

¶ 4 An evidentiary hearing on Paternal Grandparents' motion was held on January 26, 2011, at which time CF had just had his third birthday. Paternal Grandparents had not seen him since the previous May, just prior to Mother's separation from Father. Paternal Grandparents testified about the close relationship they had developed with CF since his birth. Neither one of them claimed Mother was an unfit parent, and both agreed that she was good mother, who had been very protective of CF. They did not believe that she had ever harmed, nor would she ever harm her children. They did believe, however, that CF would suffer emotional harm if they were denied continued involvement with him.

¶ 5 Mother testified regarding her separation from Father and how she had to seek refuge from him at a domestic abuse shelter. She testified regarding the times Paternal Grandparents had bailed Father out of jail for various crimes. She described one instance, when she observed Father in a physical altercation with his mother, which resulted in Father's arrest. For those reasons, she was afraid that, if granted visitation, Paternal Grandparents would either allow Father to visit to the children or be incapable of protecting them and preventing his access to them, despite their assurances to the contrary. Mother testified that she allowed her parents to visit CF because she felt safe doing so. She was providing appropriate care for both of her children.

¶ 6 The district court granted Paternal Grandparents' visitation with CF. In doing so, the court expressed these concerns:

What I find disturbing is when I suggested that [Mother] would allow the grandparents to visit with the child with a court-approved supervisor she denied that—she would not take that recommendation. And she keeps stating that she fear[s] that [Father] would show up, he would show up.

I don't believe that she's acting in the best interest of her children. For that reason, and for me, I find that it's harmful to the child if you deny the grandparents' visitation because, for one thing, every child want[s] to know where they come from. They want to know who their grandparents are. They want to know who their father is, who their mother is, no matter how bad they are.

And just because you have one rotten apple in the basket doesn't mean you have to throw the whole basket away. I mean, you can make surely [sic] there's good apples left in that basket that you can make applesauce. You can make apple pie, you know. So for me, I believe it's harmful.

The district court allowed Paternal Grandparents visitation with CF every other weekend based on its conclusion that without court-ordered visitation there would be harm to CF's “emotional state of mind.”

¶ 7 Mother appeals. Her brief in chief contains two propositions of error. The first is that the district court did not properly apply section 109.4 and Paternal Grandparents failed to overcome the presumption that, as a fit parent, she was acting in CF's best interest. Mother emphasizes that the only evidence of harm or potential harm to CF was that “he would not know the paternal side of the family.” In her second proposition of error, Mother asserts that the district court lacked jurisdiction to enter the order for visitation in the divorce proceeding. We find this second proposition dispositive. The district court's lack of jurisdiction is apparent on the face of the pleadings. Therefore, we do not address the merits of Mother's evidentiary challenge.

STANDARD OF REVIEW

¶ 8 “Questions of jurisdiction may be raised at any time, either in the trial court or on appeal; and even in the absence of an inquiry by the litigants, [this] court may examine jurisdiction.” Woods Petroleum Corp. v. Sledge, 1981 OK 89, ¶ 1, 632 P.2d 393, 394. Questions concerning a district court's jurisdictional power invoke the de novo standard of review. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 422.See Stidham v. Special Indemnity Fund, 2000 OK 33, ¶ 10, 10 P.3d 880, 885 (“Once an issue is identified as jurisdictional, it calls for a de novo review.”).

¶ 9 This case also implicates statutory interpretation, because grandparents' rights to court-compelled visitation with a grandchild are strictly statutory. Murrell v. Cox, 2009 OK 93, ¶ 25, 226 P.3d 692, 698. Statutory interpretation, involving a question of law, also demands a de novo review standard. Stump v. Cheek, 2007 OK 97, ¶ 9, 179 P.3d 606, 609.

ANALYSIS

I. Paternal Grandparents' Rights Are Strictly Statutory

¶ 10 Paternal Grandparents' right to visitation with CF exists under limited circumstances. Title 43 O.S.2011 § 109.4 provides, in pertinent part:

A. 1. Pursuant to the provisions of this section, any grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent of the child if:

a. the district court deems it to be in the best interest of the child pursuant to subsection E of this section, and

b. there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and

c. the intact nuclear family has been disrupted in that one or more of the following conditions has occurred:

(1) an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court, and the grandparent had a preexisting relationship with the child that predates the filing of the action for divorce, separate maintenance or annulment....

.... F. 1. The district courts are vested with jurisdiction to issue orders granting grandparental visitation rights and to enforce visitation rights, upon the filing of a verified petition for visitation rights or enforcement thereof. Notice as ordered by the court shall be given to the person or parent having custody of the child. The venue of such action shall be in the court where there is an ongoing proceeding that involves the child, or if there is no ongoing proceeding, in the county of the residence of the child or parent....

“When grandparents seek a court order to compel visitation with their grandchild against the consent of a sole custodial parent, a District Court must follow the grandparent visitation statute.” Craig v. Craig, 2011 OK 27, ¶ 1, 253 P.3d 57, 58. Grandparents' rights to visitation are “not co-equal with that of a parent.” Murrell v. Cox, 2009 OK 93, ¶ 25, 226 P.3d 692, 698 (citing McGuire v. Morrison, 1998 OK CIV APP 128, ¶ 9, 964 P.2d 966, 969). This is because unlike parents, grandparents “have no constitutional right to custody of or visitation with their grandchildren.” Murrell v. Cox, 2009 OK 93, ¶ 25, 226 P.3d at 698 (quoting Application of Grover, 1984 OK 20, ¶ 12, 681 P.2d 81, 83). The Oklahoma Supreme Court has reiterated that the judicial power to grant grandparents visitation is circumscribed by the terms of section 109.4, leaving the district court with no excess authority. See Craig, 2011 OK 27, ¶ 28, 253 P.3d 57, 64 (“Consistent with our opinions from 1980 through 2009, we again hold that a grandparent's rights to court-compelled visitation with a grandchild are statutory.”).

II. District Court Jurisdiction

¶ 11 In a case involving a...