Blakely v. Blakely

• Decision Date: 25 June 2002
• Docket Number: No. SC 83307.,SC 83307.
• Citation: 83 S.W.3d 537
• Parties: Richard BLAKELY and Carol Blakely, Respondents, v. Dean BLAKELY and Shelly Blakely, Appellants.
• Court: Missouri Supreme Court

Page 537

83 S.W.3d 537

Richard BLAKELY and Carol Blakely, Respondents, v. Dean BLAKELY and Shelly Blakely, Appellants.

No. SC 83307.

Supreme Court of Missouri, En Banc.

June 25, 2002.

As Modified on Denial of Rehearing August 27, 2002.

James D. Boggs, Kansas City, for Appellants.

Richard Blakely, Carol Blakely, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, State Solicitor, Jefferson City, for Amicus Curiae.

LAURA DENVIR STITH, Judge.

Dean and Shelly Blakely (Parents) refuse to permit Dean's parents, Richard and Carol Blakely (Grandparents), to visit with their grandchildren. The circuit court entered a judgment granting Grandparents two hours of visitation every 90 days, pursuant to section 452.402, RSMo 2000. Parents appeal, alleging that to the extent that section 452.402, on its face and as applied in this Court's decision in Herndon v. Tuhey, 857 S.W.2d 203 (1993), permits a court to interfere with a fit parent's decision not to allow a child to visit with the child's grandparents, the statute violates their constitutional right to raise their children free from unnecessary state interference as recognized in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Because section 452.402 as interpreted in Herndon is constitutional under the standards set out in Troxel, the Court affirms the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 2000, Grandparents filed a petition under Missouri's grandparent visitation rights statute, section 452.402. They alleged that Dean is their natural son and that he and his wife Shelly had unreasonably denied them visitation with their four grandchildren for the preceding year, that mediation had been unsuccessful and that parents continued "to refuse any communication or physical contact between [Grandparents] and their grandchildren in an attempt to alienate said grandchildren from [Grandparents]." They further asserted that visitation was in the children's best interests and "would in no way endanger the children's physical health or impair their emotional development."

Grandparents testified that they had previously been permitted to visit with their grandchildren without harmful effect and that they visited with and were close to their other grandchildren. Grandfather thought that the main problem was that Dean was unhappy with him for a variety of reasons, including Grandparents allegedly being rude to Shelly's parents; not stating "I love you" to Dean when he was growing up; not going to a Promise Keepers meeting with a neighbor; and not attending the River of Life church that Dean, Shelly and Shelly's parents attend.

Grandfather has tried to resolve his and Dean's differences by inviting Shelly's parents to dinner and working out matters with them, by becoming more expressive in telling his other grandchildren he loves them, and by going to family counseling with Dean, Shelly and Dean's sister Debbie, but Dean stopped the counseling after a few sessions, saying he just preferred to do so.

Grandparents testified that, while they do not attend Dean's church, they are Christians and do attend a church that is basically Methodist in philosophy, the same church in which they had brought up Dean. They have not talked with the grandchildren about religion and promised not to do so, saying that they did not want to interfere with Dean and his family's religion, as that is none of their business. Grandparents also sought court-ordered mediation, but withdrew the request when they understood Dean to say that unless they did so, he and Shelly would not let them see the children. But, when they withdrew the mediation request, Parents still denied visitation. Grandparents thus continued with their suit, requesting extensive visitation.

Parents opposed the petition, alleging that they denied Grandparents visitation because they believed that Grandparents were improper moral teachers and poor examples. Specifically, although in earlier years Dean had praised his father for being a good dad and setting a good example, as Dean became older and more religious, his view changed and he opposed any amount of visitation between children and Grandparents. While Dean was raised in Grandparents' church and Grandparents were still Christian, he did not feel that they publicly lived their Christianity as they should, but that they instead made it a private matter. Dean does permit Shelly's parents to visit with the children; Shelly's parents are lifelong members of Dean's church. Moreover, Dean felt his parents were divisive, critical of his wife, bigoted, and liars and such conduct was contrary to the principles and beliefs his church taught. Dean blamed the failure of counseling and mediation on his parents. As the "religious and moral instruction and training of [their] children" is of "the highest importance in their life," he therefore felt his parents should not visit his children until they repented and became more proper Christian examples.

Dean's sister Debbie, an attorney, testified that Parents are not bigoted, that Dean also refuses to talk with her or respond to her attempts to communicate with him and his wife, and that Grandparents have a good relationship with their other grandchildren.

On November 16, 2000, after considering the evidence before it, the court entered its judgment refusing the extensive visitation Grandparents requested, but granting limited visitation pursuant to the requirements of section 452.402, which states:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparents visitation when:

. . . .

(3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days;

. . . .

2. The court shall determine if the visitation by the grandparent would be in the child's best interest or if it would endanger the child's physical health or impair the child's emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child. The court may order reasonable conditions or restrictions on grandparent visitation. ...

Sec. 452.402.1(3).¹ The statute also permits visitation on similar terms if the parents have filed for dissolution, one parent is deceased and the surviving parent denies reasonable visitation, or the child is adopted by a stepparent, another grandparent or other blood relative. Secs. 452.402.1(1), (2), (4). In these instances, it provides for appointment of a guardian ad litem and a home study, if appropriate. Secs. 452.402.3-.4.

In accordance with these statutory requirements and Grandparents' request for factual findings on the statutory factors and constitutional claims, the trial court specifically found Parents had denied visitation for more than 90 days, the denial was unreasonable, and it was in grandchildren's best interests that Grandparents be awarded reasonable visitation. It rejected Parents' constitutional objections. Balancing the parties' interests, and apparently mindful of prior case law interpreting the statute, it granted Grandparents "two hours of visitation with the minor children on the third Sunday of the months of February, May, August and November of each year," that is, two hours of visitation every 90 days, including travel time. Parents were permitted to be present during the visits, which would not occur at Grandparents' house, and Grandparents were to work out the location and time a week in advance, making sure that the visits were not scheduled during church services. One visit had occurred by the time of oral argument, when the children sat silently between Parents on one side of a table at McDonald's while Grandparents sat across from them for two hours and tried to visit.

II. STANDARD OF REVIEW

Parents appeal, claiming the order violates their constitutional rights as parents and their religious beliefs. The reviewing court will affirm the decision below unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 393 (Mo. banc 2001); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Statutory interpretation is an issue of law that this Court reviews de novo. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995).

Here, Parents allege that Missouri's grandparent visitation statute is unconstitutional because it permits a court to order visitation even when objection to visitation is raised by a fit parent. Missouri courts start with the presumption that the statute is constitutional. Suffian v. Usher, 19 S.W.3d 130, 134 (Mo. banc 2000). It "will not be invalidated unless it `clearly and undoubtedly' violates some constitutional provision and `palpably affronts fundamental law embodied in the constitution.'" Bd. of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001), quoting, Linton v. Missouri Veterinary Medical Bd., 988 S.W.2d 513, 515 (Mo. banc 1999). Accordingly, "[w]here feasible to do so, the statute will be interpreted to be consistent with the constitution with all doubts to be resolved in favor of validity." Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999). Here, Parents, as the party bringing the challenge, bear the burden to prove the statute s unconstitutional. Id.; Linton, 988 S.W.2d at 515.

III. CONSTITUTIONALITY OF GRANDPARENT VISITATION STATUTE

Parents acknowledge that Herndon upheld section 452.402 as constitutional and approved an order that, like the one issued below, permitted the grandparents in that case to visit with their grandchildren every 90 days. In so doing, Herndon noted that the extent of the infringement is an essential consideration in determining whether a right has been unconstitutionally impinged. 857 S.W.2d at 208. Hern...