B.R.O. v. G.C.O.

• Decision Date: 05 August 1994
• Citation: 646 So.2d 126
• Parties: B.R.O. v. G.C.O. AV93000077.
• Court: Alabama Court of Civil Appeals

Page 126

646 So.2d 126

B.R.O. v. G.C.O.

AV93000077.

Court of Civil Appeals of Alabama.

Aug. 5, 1994.

Michael J. Salmon, Gulf Shores, for appellant.

Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee.

THIGPEN, Judge.

This visitation case involves a petition filed in the juvenile court by a paternal grandmother seeking visitation with her minor grandchildren. Her petition sought visitation pursuant to Ala.Code 1975, § 30-3-4 and/or § 12-15-30. The parents' motion to dismiss for lack of jurisdiction was properly denied. See Ex parte Palmer, 574 So.2d 44 (Ala.1990), and K.R.D. v. E.D., 622 So.2d 398 (Ala.Civ.App.1993). After receiving extensive testimony and other evidence, the juvenile court denied the grandmother's request for visitation; she appealed to the circuit court. The circuit court determined that a full transcript of the proceedings in juvenile court was available, and then, ex mero motu, transferred the appeal to this court.

On appeal, the grandmother asserts several issues; however, the dispositive issue is whether the trial court erred in denying the grandmother's petition for an award of visitation with her grandchildren.

The record contains several hundred pages of testimony and an elaborate, multi-page order by the juvenile court, which specifies in great detail the trial court's findings and its determination. All parties were represented by legal counsel throughout the proceedings, including a court-appointed guardian ad litem for the minor children. Detailing specifics here would serve no purpose; therefore, we pretermit discussion of the facts, except to note that this situation does not involve divorced parents, dependent children, a custody dispute, or adoption. The grandchildren in this case are the offspring of parents who remain married and who testified to no intention of divorcing. The parents, by their own choice, have determined that visitation with the grandmother is inappropriate for their children at this time. They testified that they base that decision on the grandmother's emotional instability, her unpredictability, her long-standing problems with alcoholism, and her dangerous and destructive behaviors which are disruptive to the family unit. Little is indicated in the record regarding the grandmother's claim for visitation pursuant to Ala.Code 1975, § 12-15-30. That section enumerates specific instances in which the juvenile court exercises exclusive original jurisdiction. The grandmother's original petition alleged that the denial of visitation caused her grandchildren "to be dependent children within the meaning and purpose of Title 12-15-1(10), Code of Alabama 1975." The trial court did not find the children to be dependent, and the record would not support a finding of dependency. Nothing else was alleged or proven by the grandmother that would invoke the jurisdiction of the juvenile court pursuant to this section. It appears that this case continued by focusing on a mere hypothesis that the grandmother's petition could proceed pursuant to Ala.Code 1975, § 30-3-4(c). Our supposition about this posture is reinforced by the evidence presented, the findings of fact and conclusions of law stated in the trial court's order, and the arguments presented in the appellate briefs.

Ala.Code 1975, § 30-3-4, was amended in 1989 by Act No. 89-864, which replaced the prior act in its entirety. It states as follows:

"At the discretion of the court, visitation rights for grandparents of minor grandchildren shall be granted in the following cases:

"(a) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when such rights have not been previously established by the Court, and to file a motion for contempt when such rights have been denied to them when one of the following situations occur;

"(b) One parent of the child is deceased and the surviving parent denies reasonable visitation rights; or

"(c) A grandparent is unreasonably denied visitation with the child for a period exceeding 90 days."

(Emphasis added.)

In this case, it is undisputed that there was no divorce action pending, no divorce judgment for the grandmother to seek to modify, and no existing visitation order to seek to enforce by way of a contempt proceeding. Nothing in this fact situation allows this grandmother's petition pursuant to this statute. The circumstances of this case do not fit within the statutory requirements permitting this grandmother to seek visitation rights, and her clever arguments do not create a right that does not exist. See In re Morris, 494 So.2d 87 (Ala.Civ.App.1986). Furthermore, the guiding rules of statutory construction, as clarified in John Deere Co. v. Gamble, 523 So.2d 95 (Ala.1988), lead us to gather the intent of the legislature "from the language of the statute itself." John Deere, at 100.

A hasty or inattentive reading of the statute could lead one to surmise or postulate that there are three circumstances wherein a grandparent may seek to establish visitation rights pursuant to this statute, i.e., (1) when there is a divorce of the grandchildren's parents, or (2) when a parent dies, or (3) when a grandparent is unreasonably denied visitation for a period exceeding 90 days. In the instant case, the grandmother's argument focuses on that interpretation, and particularly, the subsection concerning the unreasonable denial of visitation. Closer reading of the statute, however, exposes error in that interpretation.

The statute provides that, at the discretion of the trial court, visitation rights may be granted to grandparents to their grandchildren whose parents are divorced or are divorcing. The statute grants no absolute right to grandparental visitation. It merely permits grandparents (1) to intervene in divorce proceedings for the purpose of seeking to establish visitation rights with their grandchildren or (2) to seek to modify an existing divorce judgment that did not establish grandparental visitation rights. Ala.Code 1975, § 30-3-4(a). See Ex parte Bronstein, 434 So.2d 780 (Ala.1983); Mills v. Parker, 549 So.2d 97 (Ala.Civ.App.1989); Self v. Fugard, 518 So.2d 727 (Ala.Civ.App.1987); Cockrell v. Sittason, 500 So.2d 1119 (Ala.Civ.App.1986). The 1983 Act, which preceded the current statute, was interpreted to also allow grandparents to file an independent action seeking to modify the divorce judgment when grandparental visitation rights were not established by the original divorce judgment; i.e., the grandparents are not required to wait until the parties to the divorce are involved in subsequent modification proceedings before petitioning for visitation rights. See Mills, supra.

The current statutory language grants grandparents a right to seek to modify the original divorce judgment, and to file a motion for contempt when visitation rights have been denied to them "when one of the following situations occur; (b) One parent of the child is deceased and the surviving parent denies reasonable visitation rights; or (c) A grandparent is unreasonably denied visitation with the child for a period exceeding 90 days." Ala.Code 1975, § 30-3-4. (Emphasis added.) Close reading of the statute discloses that subsections (b) and (c) are specific occurrences that entitle a grandparent to certain rights, and it presupposes the existence of a prior judgment of divorce or visitation. As it was modified in 1989, there is now simply nothing in this statute permitting a grandparent to seek visitation rights with grandchildren who are not the offspring of divorced or divorcing parents. Therefore, the grandmother's reliance on this statute is defective and her arguments are misplaced.

Grandparental visitation is not an absolute right, and it did not exist at common law. Grandparental visitation rights originate by a legislative grant, and the grant of such rights is a discretionary function of the trial court. See Bronstein, supra, and Mills, supra. The grandmother correctly argues that Ala.Code 1975, § 30-3-4, permits grandparents to petition the trial court to establish grandparental visitation rights when the parents of the grandchildren are involved in divorce proceedings. The statute is clear that a trial court may, within its discretion, grant visitation rights to grandparents in two specific cases: 1) when the parents are divorcing, or, when an existing divorce judgment does not establish grandparental visitation, the judgment may be modified to establish visitation rights for the grandparents upon proper petition.

Since the effective date of the 1989 amendment, there have been very few appellate cases mentioning grandparental visitation sought pursuant to Ala.Code 1975, § 30-3-4. Ex parte Palmer, supra, and K.R.D., supra, primarily concerned jurisdiction. P.A.T. v. D.B., 638 So.2d 905 (Ala.Civ.App.1994), primarily concerned a custody dispute between a parent and a grandparent, and no error was asserted or addressed regarding visitation. Loftin v. Smith, 590 So.2d 323 (Ala.Civ.App.1991), involved a petition to terminate grandparental visitation rights that had been granted by a modification of the parents' divorce judgment. There, this court affirmed a circuit court's determination regarding grandparental visitation, subsequent to a stepfather's adoption of his wife's children by her previous marriage. In Chavers v. Hammac, 568 So.2d 1252 (Ala.Civ.App.1990), and Shoemaker v. Shoemaker, 563 So.2d 1032 (Ala.Civ.App.1990), this court strictly construed the statutory language and refused to extend the statute to allow parties who did not fit the circumstances (a great-grandparent and a stepparent) to utilize the statute to seek or enforce visitation with children of divorced parents.

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