Hampton v. Hardwick

• Decision Date: 16 May 2000
• Citation: Hampton v. Hardwick, 17 S.W.3d 599 (Mo. App. 2000)
• Parties: (Mo.App. W.D. 2000) Timothy Hampton, Appellant v. Jimmy Hardwick, et al., Respondents WD56614 0
• Court: Missouri Court of Appeals

17 S.W.3d 599 (Mo.App. W.D. 2000)

Timothy Hampton, Appellant v. Jimmy Hardwick, et al., Respondents

WD56614

Missouri Court of Appeals Western District

05/16/2000

Appeal From: Circuit Court of Ray County, Hon. David Busch

Counsel for Appellant: J.D. Gorham

Counsel for Respondent: Stanley m. Thompson

Opinion Summary: Timothy Hampton appeals the trial court's judgment modifying his decree of dissolution to award grandparent visitation. Mr. Hampton claims that the trial court erred in awarding grandparent visitation to his child's maternal grandparents and their spouses because the statute authorizing grandparent visitation does not include step-grandparents and because the trial court's grant of visitation to the grandparents and step-grandparents on alternate weekends violated his constitutionally-protected substantive due process rights.

Division Four holds: (1) The trial court erred in awarding visitation to the step-grandparents because section 452.402, RSMo Cum. Supp. 1998, does not expressly or impliedly authorize an award of visitation to step-grandparents.

(2) The award of visitation to the grandparents exceeded a minimal intrusion, resulting in an unconstitutional application of section 452.402, RSMo Cum. Supp. 1998.

Patricia Breckenridge, Chief Judge

Timothy Hampton appeals from the trial court's judgment modifying his decree of dissolution to award grandparent visitation. Mr. Hampton claims that the trial court erred in awarding grandparent visitation to his child's maternal grandparents and their spouses because the statute authorizing grandparent visitation does not include step-grandparents and because the trial court's grant of visitation to the grandparents and step-grandparents on alternate weekends violated his constitutionally-protected substantive due process rights. We reverse the trial court's judgment and remand the case to the trial court so that it can modify its order concerning grandparent visitation.

FACTUAL AND PROCEDURAL BACKGROUND

On April 7, 1998, the Circuit Court of Ray County entered a judgment dissolving the marriage of Mr. Hampton (Father) and Stephanie Ann Hampton (Mother). One child, Haley Rosanne Hampton, was born of the marriage on December 1, 1994. The trial court found that it was in the child's best interests for the parents to share joint legal custody of the child, and for Father to be awarded primary physical custody of the child, subject to Mother's right to reasonable visitation. Specifically, Mother was awarded visitation on alternate weekends, alternate major holidays and two two-week periods in the summer.

Two months later, Father filed a motion to modify the judgment of dissolution in which he requested that Mother's visitation of the child be supervised, and he asked the trial court to terminate joint legal custody and to modify physical custody. One of the changes in circumstances Father listed in his motion to modify was Mother's impending incarceration.

Mother's parents and their respective spouses, Jimmy and Barbara Hardwick, Mother's father and stepmother, and Pamela and John Thacker, Mother's mother and stepfather, filed a motion to intervene in the modification proceeding. They requested leave to intervene so they could pursue visitation rights. The trial court sustained the Hardwicks' and the Thackers' motion to intervene. The Hardwicks and the Thackers then filed an answer to Father's motion and a petition to intervene and to request visitation rights.

The trial court called the case for hearing on October 22, 1998. Mother did not appear, and the trial court declared her to be in default. Father, the Hardwicks and the Thackers appeared. Father filed a motion asking the trial court to dismiss the Hardwicks' and the Thackers' petition on the ground that section 452.402.1(1), RSMo Cum. Supp. 1998,¹ the statute authorizing grandparent visitation in cases of parental divorce, was unconstitutional. The trial court heard evidence on all pending motions.

At the end of the hearing, the trial court issued a judgment denying Father's motion to dismiss and modifying the prior dissolution decree. The trial court awarded sole legal custody of Haley to Father, awarded the Hardwicks and the Thackers visitation with Haley every other weekend from 6 p.m. on Friday until 6 p.m. on Sunday while Mother was incarcerated, and modified Mother's visitation of Haley after Mother's release from incarceration. The trial court ordered that, after Mother is released from incarceration, her original visitation will be reinstated but the visitation must be supervised by the Hardwicks or the Thackers.

Father appeals. He challenges the trial court's award of visitation to Barbara Hardwick and John Thacker, the step-grandparents. He further contends that the amount of visitation awarded to the Hardwicks and the Thackers violated his substantive due process rights. He does not challenge the trial court's designation of Barbara Hardwick and John Thacker as persons suitable to supervise visitation between Mother and Haley.

STANDARD OF REVIEW

In grandparent visitation cases, as in most court-tried civil cases, an appellate court is guided by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Whoberry v. Whoberry, 977 S.W.2d 946, 948 (Mo. App. 1998).

STEP-GRANDPARENTS ARE NOT ENTITLED TO VISITATION

In Father's first point, he claims that the trial court erred in sustaining the motion for leave to intervene filed by the maternal step-grandfather and maternal step-grandmother. He argues that section 452.402 does not expressly or impliedly authorize an award of visitation to step-grandparents. This court agrees.

Section 452.402 permits an award of visitation to grandparents. It 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 grandparent visitation when:

(1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when such rights have been denied to them;

(2) One parent of the child is deceased and the surviving parent denies reasonable visitation rights;

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

(4) The child is adopted by a stepparent, another grandparent or other blood relative.

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.

* * *

Section 452.402.

Construction of this statute is an issue of law, so our review is de novo. Dawson v. Denney-Parker, 967 S.W.2d 90, 92 (Mo. App. 1998). "The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning." Wheeler v. Board of Police Comm'rs of Kansas City, 918 S.W.2d 800, 803 (Mo. App. 1996). It is not the place of this court to surmise what the legislature intended to say or inadvertently failed to say. Cohen v. Missouri Bd. of Pharmacy, 967 S.W.2d 243, 248 (Mo. App. 1998). A statute is clear and unambiguous if the language is plain and clear to a person of ordinary intelligence. Wheeler, 918 S.W.2d at 803. Where there is no ambiguity, there is no need to look to any other rule of construction. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996).

The one word of the statute at issue is "grandparent." The word "grandparent" is not defined in the statute, so we look to a dictionary definition to determine its plain and ordinary meaning. Badgley v. Missouri Dept. of Corrections, 977 S.W.2d 272, 275 (Mo. App. 1998). Webster's New Collegiate Dictionary 500 (5th ed. 1977) defines a "grandparent" as "a parent of one's father or mother." Giving the term "grandparent" its plain and ordinary meaning, the intention of the legislature is clear and unambiguous, so no further construction of the statute is necessary. By use of the word "grandparent," the legislature intended to authorize visitation to the parent of a child's father or mother. Thus, the trial court misapplied the law when it awarded grandparent visitation rights to the step-grandparents. Therefore, the award of visitation to the step-grandparents is reversed.

CONSTITUTIONALITY OF TRIAL COURT'S VISITATION ORDER

The trial court ordered Father to permit the grandparents and their spouses to visit Haley every other weekend from 6 p.m. on Friday to 6 p.m. on Sunday. Father argues:

[T]his amount of visitation is excessive for a grandparent and . . . the court erred in granting visitation to this extent on grounds of abuse of discretion and of amounting to an unconstitutional application of the grandparent visitation statute infringing upon his constitutional liberty and privacy rights to exercise personal choice and freedom in rearing his daughter, as guaranteed by the due process clauses of the United States Constitution, Fourteenth Amendment, and the Missouri Constitution, Article I, Section 10.

As the Supreme Court of Missouri recognized in Herndon v. Tuhey, 857 S.W.2d 203, 207 (Mo. banc 1993), grandparent visitation granted pursuant to section 452.402.1 impinges on a parent's rights, protected by the Fourteenth Amendment, to make...