Fenn v. Sherriff

• Decision Date: 25 June 2003
• Docket Number: No. C041899.,C041899.
• Citation: 1 Cal.Rptr.3d 185,109 Cal.App.4th 1466
• Parties: H. Sterling FENN et al., Plaintiffs and Appellants, v. Robert SHERRIFF, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

1 Cal.Rptr.3d 185

109 Cal.App.4th 1466

H. Sterling FENN et al., Plaintiffs and Appellants, v. Robert SHERRIFF, Defendant and Respondent.

No. C041899.

Court of Appeal, Third District.

June 25, 2003.

Review Denied October 15, 2003.

Downey, Brand, Seymour & Rohwer and Frank E. Dougherty, Merced, for Plaintiffs and Appellants.

Law Offices of William D. Kopper and William D. Kopper, Davis, for Defendant and Respondent.

ROBIE, J.

Pursuant to Family Code section 3102,¹ plaintiffs H. Sterling Fenn and Jan Fenn (grandparents) petitioned for a court order allowing them visitation with their grandchildren, Andrew and Benjamin, following the death of their daughter, Kathryn Sherriff. (All further section references are to the Family Code unless otherwise noted.) The children's father, defendant Robert Sherriff (father), opposed the petition and moved for summary judgment on the ground he and his new wife, who had adopted the children, both objected to court-ordered visitation. Among other things, father argued section 3102 "is unconstitutional as applied if it is construed to provide grandparent visitation over the objection of both parents." The trial court granted summary judgment on the ground grandparents had failed to allege father was an unfit parent and, in any event, had failed to raise a triable issue of fact as to father's fitness as a parent.

We conclude section 3102 is constitutional even though it may allow for court-ordered grandparent visitation over the objection of two fit parents. Although the fundamental right of parents to make decisions regarding the care, custody, and control of their children requires the court to give the decisions of fit parents special weight, it does not necessarily preclude a court from ordering visitation over the parents' objection.

We further conclude summary judgment was improper in this case because father's motion was based solely on the asserted facts that he and his wife were fit parents who objected to court-ordered visitation. Those facts were not legally sufficient to carry father's initial burden of showing that grandparents' petition for visitation had no merit. Because father did not meet his initial burden of showing grandparents' petition had no merit, the burden never shifted to grandparents to show a triable issue of fact. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Andrew and Benjamin Sherriff are the natural children of Robert and Kathryn Sherriff. The Fenns are the children's maternal grandparents.

Kathryn Sherriff died in August 2000 while she and father were in the process of getting divorced. Two months later, grandparents filed a petition for visitation under section 3102, alleging father was denying them visitation with the children. The parties agreed to undergo psychological evaluations and to allow grandparents supervised visitation with the children during the evaluation period.

In August 2001, after the case was transferred from Shasta County to Yolo County, father filed his response to the petition, alleging he had allowed grandparents to visit with the children at his discretion, in accordance with the recommendation of the children's counselors. He also alleged section 3102 was unconstitutional and that grandparents were unfit to have visitation with the children.

In September 2001, father remarried. In November 2001, grandparents caused an order to show cause to issue, seeking increased, unsupervised visitation with the children. Father opposed any additional visitation. The matter was set for trial in April 2002. Meanwhile, in December 2001, father's new wife adopted the children.

In February 2002, father moved for summary judgment on the ground he and his wife, who were both fit parents, opposed court-ordered visitation. Father argued section 3104, which was enacted after section 3102, takes precedence over section 3102, and section 3104 does not allow visitation over the objection of both parents. He also argued section 3102 was unconstitutional as applied if interpreted to allow grandparent visitation after an adoption. Finally, he argued that "for a grandparent visitation petition to succeed over the objections of both parents, both parents would have to be unfit," and he and his wife were both fit parents.

In opposition, grandparents argued section 3104 did not supercede section 3102, section 3102 is constitutional, and there was a genuine issue of material fact regarding father's fitness as a parent.

The trial court granted summary judgment in favor of father because grandparents had failed to allege in their petition that father was an unfit parent and because, even if unfitness had been alleged, grandparents had failed to raise a triable issue that father was unfit.

DISCUSSION

I Standard of Review

A defendant may move for summary judgment "if it is contended that the action has no merit...." (Code Civ. Proc, § 437c, subd. (a).) "A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Id., subd. (p)(2).) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Id., subd. (c).)

"Because the trial court's determination [on a motion for summary judgment] is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279, 48 Cal. Rptr.2d 229.)

"The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation.] Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

II Grandparent Visitation After a Stepparent Adoption

Father sought summary judgment on the ground that he and his wife, who has adopted the children as her own, are both fit parents who oppose court-ordered visitation between the children and grandparents. Father contends the courts have no power "to award grandparent visitation over the objection of both parents living together in a family unit." For the reasons that follow, we disagree.

A Statutory Analysis of Section 3102 and Section 3104

Sections 3102, 3103, and 3104 are the three statutes in the Family Code that specifically provide for grandparent visitation, each addressing different situations. Section 3102 allows grandparents (and certain other relatives) to seek visitation with their grandchildren when one of the children's parents is deceased. Section 3103 allows grandparents to seek visitation with their grandchildren in a pending dissolution proceeding or other family law proceeding in which custody of the children is already at issue. Section 3104 allows grandparents to seek visitation with their grandchildren in other circumstances.

Here, grandparents sought visitation under section 3102, which on its face allows the court to order grandparent visitation when one of the parents is deceased "upon a finding that the visitation would be in the best interest of the minor child." (§ 3102, subd. (a).) Subdivision (c) of the statute specifically addresses what happens when an adoption occurs following the parent's death: "This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child." Thus, under the plain language of section 3102, a stepparent adoption (like the one that occurred in this case) has no effect on the grandparents' right to seek court-ordered visitation with their grandchildren under that statute.

Father contends, however, that section 3102 must be read together and harmonized with section 3104, which compels a different conclusion. Under section 3104, "while the natural or adoptive parents are married," a grandparent can seek courtordered visitation only if: (1) "[t]he parents are currently living separately and apart on a permanent or indefinite basis"; (2) "[o]ne of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse"; (3) "[o]ne of the parents joins in the petition with the grandparents"; or (4) "[t]he child is not residing with either parent." (§ 3104, subd. (b).) In addition, "[a]t any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination." (Ibid.) In Lopez v. Martinez (2000) 85 Cal.App.4th 279, 102 Cal.Rptr.2d 71, the court held a stepparent adoption constitutes a "change of circumstances" requiring the...