Cooper v. Merkel

• Decision Date: 15 February 1991
• Docket Number: No. 17205,17205
• Citation: 470 N.W.2d 253
• Parties: Tamera COOPER, Plaintiff and Appellee, v. Donald Jacob MERKEL, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 253

470 N.W.2d 253

Tamera COOPER, Plaintiff and Appellee, v. Donald Jacob MERKEL, Defendant and Appellant.

No. 17205.

Supreme Court of South Dakota.

Considered on Briefs Feb. 15, 1991.

Decided May 15, 1991.

Randy S. Bingner, Clark, for plaintiff and appellee.

Michael B. Thompson of Bartron, Wiles & Rylance, Watertown, for defendant and appellant.

PER CURIAM.

Donald Jacob Merkel (Donald) appeals an order dismissing his motion for visitation rights with the minor child of Tamera Cooper (Tamera). We affirm.

FACTS

Donald and Tamera lived together for seven years, however, Donald is not the legal or biological father of Tamera's son. On September 5, 1989, Tamera filed a pro se petition for protection from domestic abuse against Donald. A hearing was held and, on October 6, 1989, the trial court entered an order restraining Donald from committing any acts of domestic abuse against Tamera and further restraining him from going to Tamera's residence. The order also provided that Donald, "may be allowed to contact the son of [Tamera] ... at a reasonable time and in a reasonable manner for the purpose of visitation."

On March 29, 1990, Donald filed a motion for a trial court order granting him a schedule of visitation with Tamera's son. The motion asserted that Donald had assumed part of the responsibility for raising the boy, that Donald was a de facto parent to him and, therefore, that Donald should be granted the opportunity to visit him. On May 16, 1990, the trial court informed Donald's counsel that it wanted the parties to brief the question of whether Donald, not being the boy's biological father, had standing to request visitation. The parties stipulated to a briefing schedule approved by the trial court and subsequently submitted their briefs.

The trial court issued its decision on June 6, 1990, holding at common law a nonparent had no right to visitation with a minor child and in the absence of any statute it lacked authority to order nonparent visitation. The trial court entered its order of dismissal and Donald appeals.

ISSUE

WHETHER THE TRIAL COURT ERRED IN DISMISSING DONALD'S MOTION FOR VISITATION?

A court may, on its own initiative, dismiss a complaint under SDCL 15-6-12(b)(5) for failure to state a claim on which relief can be granted. See, K/O Ranch, Inc. v. Norwest Bank of Black Hills, 748 F.2d 1246 (8th Cir.1984); Martin-Trigona v. Stewart, 691 F.2d 856 (8th Cir.1982). If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to, and not excluded by, the trial court, the motion should be treated as one for summary judgment. Glanzer v. St. Joseph Indian School, 438 N.W.2d 204 (S.D.1989) (citing SDCL 15-6-12(b)). Thus, in Glanzer, supra, where the record indicated that matters outside the pleadings were presented to, and considered by the trial court in dismissing the case, this court reviewed the dismissal under the rules applicable to summary judgment.

Donald contends that factual matters outside the pleadings were submitted to the trial court in Tamera's brief. As a consequence, Donald argues that the trial court erred in not converting the dismissal proceeding to a summary judgment proceeding. He argues this denied him an opportunity to present the trial court with additional matters pertinent to his claim. We disagree.

While extraneous matters were submitted to the trial court in Tamera's brief, the only matters pertinent to the ultimate decision were contained in the pleadings, i.e., that Donald is a nonparent seeking visitation rights with a minor child. This fact is clear from Tamera's original petition for a protection order and is not disputed on appeal. Thus, although extraneous matters may have been submitted, the record is clear that, in contrast with Glanzer, the extraneous matters were not relevant to the trial court's ultimate legal determination that nonparents have no visitation rights with minor children. Thus, the trial court did not err in failing to convert the dismissal proceeding to one for summary judgment. Such a conversion would have served no useful purpose as the key facts relevant to the trial court's decision were contained in the pleadings and were not disputed.

Donald contends that he should have been afforded the opportunity to present facts establishing that he was a de facto parent to Tamera's son or that he stood in loco parentis ¹ to the boy. He argues that proof of these facts would have established his claim for visitation rights with the child. ²

This court has not spoken directly to the issue of the visitation rights of a nonparent. However, "[t]he right of visitation derives from the right of custody and is controlled by the same legal principles." 59 Am.Jur.2d Parent and Child Sec. 36 (1987). This court has spoken to the custodial rights of nonparents.

Before a parent's right to custody over his or her own children will be disturbed in favor of a nonparent a clear showing against the parent of "gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child" is required, and an award cannot be made to [nonparents] simply because they may be better custodians.

Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D.1983). Accord, Langerman v. Langerman, 321 N.W.2d 532 (S.D.1982). It follows that in order to grant a nonparent visitation rights with a minor child over the wishes of a parent, a clear showing against the parent of gross misconduct, unfitness or other extraordinary circumstances affecting the welfare of the child is required. ³

A similar test was employed by the District of Columbia Court of Appeals in Jackson v. Fitzgerald, 185 A.2d 724 (D.C.1962). In Jackson, a grandparent sought custody or visitation rights with a four-year-old grandchild against the wishes of the child's father. As in this case, the lower court dismissed the grandparent's complaint for failure to state a claim. The substance of...