Dodd v. Burleson

Citation967 So.2d 715
Decision Date20 April 2007
Docket NumberNo. 2050556.,2050556.
PartiesMichael DODD v. William B. BURLESON and Jeanette Burleson.
CourtAlabama Court of Civil Appeals

Oliver J. Latour, Jr., Foley, for appellant.

M. Lionel Leathers of Leathers Law Firm, Winfield, for appellees.

PITTMAN, Judge.

This is the second time this grandparent-visitation case has come before this court. See Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005) ("Dodd I"). The two-judge main opinion in Dodd I summarized much of the pertinent legal and procedural background:

"As the New Jersey Supreme Court noted in Moriarty v. Bradt, 177 N.J. 84, 109, 827 A.2d 203, 218 (2003), cert. denied, 540 U.S. 1177 (2004), courts that have assessed the constitutional application of their states' grandparental-visitation statutes have typically `engaged in one of two modes of analysis: (1) interpreting the statutes to require satisfaction of a harm standard in order to overcome the presumption in favor of a fit parent's decision or (2) avoiding the articulation of any standard at all and analyzing the statutes on a case-by-case basis.' Although `Troxel [v. Granville, 530 U.S. 57 (2000),] implied that either approach would be acceptable,' id., certain members of this court, in wrestling with the question of the proper application of § 30-3-4.1[, Ala.Code 1975,] as originally enacted, have voiced support for a harm standard.... This case, however, squarely presents the question whether that standard should be held to have survived the Legislature's recent amendment of § 30-3-4.1.

"Initial Procedural Background

"In May 2004, William B. Burleson and Jeanette Burleson (`the grandparents'), who are the maternal grandparents of three children born to Diana Burleson Dodd (`the mother') and Michael Dodd (`the father'), filed a petition in the Marion Circuit Court seeking a pendente lite and permanent award of visitation rights with the children, the appointment of a guardian ad litem to represent the children's interests, and other appropriate relief. The grandparents alleged that the father had `made known his wishes to deny visitation rights' to the grandparents; they also averred that their visitation with the children would be in the children's best interests and would not endanger their physical or emotional health. The father answered the petition and averred that § 30-3-4.1 violated his due-process rights under the United States and Alabama Constitutions; however, he did not serve the Attorney General with a copy of his answer asserting that constitutional challenge. The grandparents then sought additional pendente lite relief upon learning that the father had moved from Marion County to Baldwin County with two of the three children.

"Trial Proceedings

"The trial court then held an ore tenus proceeding over three separate days in June and August 2004. The evidence adduced at those hearings tended to indicate that the father had married the grandparents' daughter in 1985 and that that marriage had produced three children: an older daughter who is no longer a minor, a younger daughter who is now 16 years old, and a son who is now 7 years old. During the marriage, the father, the mother, and the children all lived in Marion County in close proximity to the grandparents. According to the daughters' testimony, the children spent a lot of time at the grandparents' residence. Specifically, in May 2001, the mother was diagnosed with breast cancer; during and after the surgical treatment of that cancer, the grandparents provided assistance in the care of the children. In October 2001, the father suffered severe injuries from a mishap involving the operation of a motorcycle; he was hospitalized for over a month and underwent physical therapy for several months thereafter, during which period the grandparents provided the bulk of the children's care.

"In November 2002, the mother was again diagnosed as having cancer. However, unlike the mother's previous onset of cancer, surgical treatment was unavailable, and she died in February 2003. During the mother's final illness, relations between the father and the older daughter became strained; after the mother's death, the father began severing relationships with family friends and entered into a social relationship with a widow from Walker County, a mother of two children, whom the father would later marry. During their courtship, which involved a brief cohabitation, relations between the father and the grandparents became increasingly tense, which began to affect the previously close relationship that the grandparents had had with the children. It appears that the father resented the grandparents' profound disapproval of his eventual second wife, or at least their disapproval of the extent and rapid development of the father and his second wife's relationship, as well as the grandparents' recounting to the children their memories of the mother; the father began occasionally denying the children permission to visit with the grandparents and wrote a letter to the grandparents insisting that the grandparents `keep [their] negative comments and opinions to' themselves when the children were present.

"The father married his new wife in December 2003; however, the relationship between the father and the grandparents did not improve. In fact, not only did that relationship worsen, but the father also quarreled to such an extent with the older daughter that he screamed at her, slapped her repeatedly, and directed her to move out of the family home; she was not permitted to resume living in the family home for the remainder of her minority. Matters between the father and the grandparents appeared to come to a head in late April and early May 2004; in apparent reaction to the grandparents' discussion of the mother in the son's presence, the father began denying all contact between the son and the grandparents and sent a letter to the grandparents threatening either to move from Marion County or to obtain a restraining order preventing contact between the grandparents and the two younger children. After the grandparents initiated the instant action seeking visitation rights, the son informed the grandparents that he had been forbidden to ever return to the grandparents' home.

"At the first hearing in the cause, on June 22, 2004, the father, the older daughter, and the mother of one of the older daughter's friends testified. The older daughter testified, in pertinent part, that she had been kicked out of the family home after a violent quarrel but that she and the father had since been attending counseling sessions. The older daughter described the grandparents as `[w]onderful' and agreed that they had been an integral part of the lives of each of the children.

"The older daughter opined that the grandparents loved her `[u]nconditionally,' but when asked whether the grandparents would love and take care of her siblings the same way, she responded, `They want to, but he [the father] won't let them.' The older daughter testified that the grandparents had purchased a number of items for the younger sister and had attended a number of sporting and cheerleading events involving the daughters. She also testified that the son had asked her on each occasion she had seen him since she had moved out whether he could see the grandparents but that, upon being reminded of the situation, he had stated[,] `Oh yeah. Daddy won't let me.' The older daughter admitted to wishing that she could, in stealth, take her siblings to the grandparents' home to visit with them, and she testified that the children, being the grandparents' only grandchildren, were `all [the grandparents have] got left' following the mother's death.

"At the second hearing, on June 28, 2004, among the witnesses called by the parties was the younger daughter. The younger daughter testified at that hearing that she and the son loved her grandparents and that she wanted the grandparents to remain a part of her life; however, she testified that she had not visited with the grandparents in four months. The younger daughter expressed a desire to see the grandparents `like we used to, when we wanted to, or when we went over' instead of, in her words, being `forced to see them any certain amount of time'; she added that she did not want either the father or the grandparents to be mad at her. The younger daughter expressed optimism that the father would not interfere with visitation between the two younger children and the grandparents, but she admitted that as of the date of the hearing she had lost the ability to simply telephone the grandparents and ask to visit them. Finally, the younger daughter testified that there had been discussions between family members about the father, his new wife, and the two younger children moving from Winfield, which is located in Marion County, but that she had been told that such a move would not happen `any time soon.' "A third hearing in the cause occurred on August 11, 2004, at which all of the parties and a number of other witnesses testified. During that hearing, it was revealed that the father, his new wife, and the two younger children had moved from Winfield to Fairhope, which is located in Baldwin County, in early July 2004 and that the previous family home in Winfield had been listed with a broker for sale. The father admitted during that hearing that no relatives of the father or his new wife lived in Fairhope and that the move had been prompted by a desire to `start over' in a place free of `rumors.' The father denied that the move was made solely to keep the younger children from the grandparents.

"After the three hearings, the trial court entered a judgment granting the grandparents' petition on August 20, 2004. In pertinent part, the trial court's judgment referred to the significant relationship that the grandparents had had with the children, including `quasi-parental' duties as to their care during 2001; the judgment specifically determined...

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6 cases
  • Ex Parte E.R.G. And D.W.G.
    • United States
    • Supreme Court of Alabama
    • June 10, 2011
    ......It wrote: "Recognizing that we are not bound by the plurality opinions in [ Dodd v. Burleson , 932 So. 2d 912 (Ala. Civ. App. 2005) (' Dodd I ')], [ Dodd v. Burleson , 967 So. 2d 715 (Ala. Civ. App. 2007) (' Dodd II ')] , and ......
  • E.H.G. v. E.R.G.
    • United States
    • Alabama Court of Civil Appeals
    • March 12, 2010
    ......In Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005) (plurality opinion) (“ Dodd I ”), Judge Pittman, in an opinion joined by Judge Thompson, ......
  • E.H.G.  v. E.R.G. (Ex parte E.R.G.)
    • United States
    • Supreme Court of Alabama
    • June 10, 2011
    ...we are not bound by the plurality opinions in [ Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005) (‘ Dodd I ’) ], [ Dodd v. Burleson, 967 So.2d 715 (Ala.Civ.App.2007) (‘ Dodd II ’) ], and L.B.S. [ v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002) ], we hereby adopt the reasoning of Hawk [ v. Haw......
  • J.W.J., Jr. v. P.K.R.
    • United States
    • Alabama Court of Civil Appeals
    • March 28, 2008
    ......Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). See, e.g., Dodd0 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). See, e.g., Dodd v. Burleson......
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