Campbell v. Campbell

• Decision Date: 18 May 1995
• Docket Number: No. 930790-CA,930790-CA
• Parties: Boyd CAMPBELL and Beverly Campbell, Plaintiffs and Appellants, v. Janet C. CAMPBELL, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 635

896 P.2d 635

Boyd CAMPBELL and Beverly Campbell, Plaintiffs and Appellants, v. Janet C. CAMPBELL, Defendant and Appellee.

No. 930790-CA.

Court of Appeals of Utah.

May 18, 1995.

L. Brent Hoggan (argued), Olson & Hoggan, P.C., Logan, for appellants.

Dianne R. Balmain (argued), Hult & Balmain, Logan, for appellee.

Before ORME, GARFF ¹ and WILKINS, JJ.

ORME, Presiding Judge:

Boyd and Beverly Campbell appeal the trial court's order awarding them only limited rights of visitation with their grandchildren. Upholding the constitutionality of Utah's grandparent visitation statute, we vacate the order and remand.

FACTS

Appellants Boyd and Beverly Campbell were the parents of Kelly Campbell. Kelly Campbell was the husband of appellee Janet Campbell until his death on August 1, 1991. At the time of Kelly's death, Kelly and Janet had four children, and Janet was pregnant with a fifth child.

After Kelly's death, Boyd and Beverly sought to maintain a relationship with their five grandchildren. Janet claims she encouraged On February 11, 1993, Boyd and Beverly filed a complaint asking the court to award them "reasonable rights" of visitation and specifically requested the following visitation schedule:

her children's relationships with their grandparents, but was unable to accommodate the increasing demands of Boyd and Beverly as these demands unreasonably interfered with her children's schedules. In contrast, Boyd and Beverly claim that the restrictions Janet placed on their reasonable requests for visitation became increasingly onerous, necessitating their filing a legal action to obtain formal visitation rights.

A. The second and fourth weekends of each month from 8:00 p.m., Friday, to 6:00 p.m., Sunday.

B. Some time during the school holidays such as Thanksgiving, Christmas, spring vacation and Memorial Day.

C. Some time with each child either the day before or the day after his or her birthday.

D. Three (3) weeks of summer vacation.

With the complaint, Boyd and Beverly filed a motion for an order to show cause. The court issued an order requiring Janet to show cause why Boyd and Beverly should not be granted reasonable visitation rights with their grandchildren. On March 18, 1993, a hearing was held before a commissioner. At the conclusion of the hearing, the commissioner entered a temporary order granting Boyd and Beverly reasonable rights of visitation and defined reasonable visitation as "every other Saturday at 9:00 a.m. until Sunday in time for the grandchildren to attend church." Under the terms of the temporary order, reasonable visitation also included the right "to visit with the grandchildren on the telephone at reasonable times and under reasonable circumstances." In addition, each grandchild was exempted from visitation if it interfered with "a scheduled school, church, or medical appointment."

On March 30, 1993, Janet filed an objection to the commissioner's temporary order. On May 18, 1993, the trial court held a hearing on Janet's objection. At this hearing the parties agreed, by stipulation, to allow Boyd and Beverly to visit the three oldest grandchildren for one day every other week. This visitation schedule remained in place until September 17, 1993, at which time the trial court held a hearing to review and resolve all outstanding issues in the case.

Because counsel for both sides believed that presentation of evidence through testimony would further exacerbate the already acrimonious relationship between the parties, and in an effort to preserve the possibility of future reconciliation between them, counsel proffered their evidence and argued their clients' positions to the court. At this hearing, Boyd and Beverly requested more extensive visitation rights. ²

After receiving counsels' proffers and arguments, the court conducted an in-chambers, off-the-record discussion with counsel. The court then interviewed the two oldest grandchildren in chambers and off the record. ³ At the request of counsel for Boyd and Beverly, the court then reiterated much of its discussion with counsel on the record. Ruling from the bench, the trial court expressed its "strong concerns" about the constitutionality of Utah Code Ann. § 30-5-2(1) (Supp.1994). Section 30-5-2 permits the trial court to "grant grandparents and other immediate family members reasonable rights of visitation if it is in the best interest of the children." However, the trial court stated that "[t]he parent-child relationship is the primary relationship that should be enhanced," and questioned whether "the courts have discretion to [award grandparent visitation,] despite the language of the statute." The trial court then granted Boyd and Beverly only those minimal rights of visitation which Janet had previously agreed were appropriate. ⁴

Boyd and Beverly appeal the trial court's visitation order, challenging the adequacy of the findings and claiming the court's analysis and resulting order were skewed by the trial court's view that section 30-5-2 is unconstitutional. Janet disputes Boyd's and Beverly's claims and further contends that she should be awarded attorney fees incurred in responding to this appeal, which she characterizes as frivolous. ⁵

ADEQUACY OF THE FINDINGS

Rule 52(a), Utah Rules of Civil Procedure, requires that " '[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.' " Woodward v. Fazzio, 823 P.2d 474, 477 (Utah App.1991) (quoting Utah R.Civ.P. 52(a)). To successfully challenge the findings, the appellant must ordinarily demonstrate they are clearly erroneous. Id. To make such a showing, appellant is required to marshall all the evidence supporting the findings and then demonstrate that the findings are not supported by legally sufficient evidence. See id.

In the instant case, appellants do not marshall all the evidence in an effort to demonstrate that the court's findings--and its ensuing conclusion--are erroneous. Instead, appellants contend that the court's findings are insufficiently detailed--i.e., facially inadequate--to allow for meaningful review. We agree. As noted in Woodward, appellants need not engage in a futile marshalling exercise if they can demonstrate the findings, as framed by the court, are legally insufficient. Id. at 477-78. As explained in the following analysis, whatever may be said as to the "reasonableness" of the visitation ordered by the court, the more immediate problem in this case is that the findings are not sufficiently detailed to disclose the evidentiary basis for the court's decision and thereby allow for meaningful review. See id.

"Findings are adequate only if they are 'sufficiently detailed and include enough subsidiary facts to disclose the steps by which The court's first finding, that some visitation would be in the children's best interest, is conclusory. The court should have entered detailed findings to support its conclusion. Moreover, Janet had previously stipulated that some visitation was in her children's best interest. Thus, the only question before the court was what constituted reasonable visitation. A solitary finding that some visitation is in the best interest of the children, a proposition not in dispute, neither advances the trial court's analysis nor allows for meaningful review of the reasonableness of a particular schedule of visitation.

                the ultimate conclusion on each factual issue was reached.' "  Hall v. Hall, 858 P.2d 1018, 1021 (Utah App.1993) (quoting Allred v. Allred, 797 P.2d 1108, 1111 (Utah App.1990)).  In the instant case, the court failed to separate its findings of fact and conclusions of law in accordance with Rule 52(a).  Instead, the court included eight numbered paragraphs under the heading "Findings of Fact and Conclusions of Law."   After separating the court's legal conclusions from its findings of fact, we are left with but three actual findings to consider, the first two of which are too general to be of much help in reviewing the trial court's decision. 6  First, the court found that "[s]ome visitation of the children by the Plaintiffs will be beneficial and in the best interests and well-being of the children."   Second, the court found that the litigation between the parties had been detrimental to the children.  Third, the court found that Janet had stipulated to specific periods of visitation, and it found precisely that level of visitation to be "appropriate and reasonable."   Its order was fashioned accordingly
                

Likewise, a finding that the present dispute between the parties has harmed the children by exposing them to the stress that inevitably accompanies litigation between family members, does not provide any insight as to why this particular schedule of visitation is in the children's best interest. Stated from a slightly different perspective, if the stress is due only to the litigation, what bearing does it have on how much visitation to permit, since, from all that appears, the stress will end when the litigation does? Apparently, spending time with their grandparents was not, in and of itself, a source of stress for the children. See infra note 8.

Finally, it is factually accurate that Janet agreed to a particular visitation schedule, but such agreement does not necessarily make that schedule of visitation reasonable. If court-ordered grandparent visitation were to be entirely dictated by the preferences of the parent, the statute would be rendered meaningless. It would be futile for a grandparent to sue for visitation rights if those rights would be ultimately limited to what a grandparent would receive as a matter of grace from the parent. ⁷

Certainly, an important factor in deciding whether to award visitation and in determining the amount of visitation is the extent to which such visitation will disrupt the children's relationship with their parent. Applying this factor to the...