Hanson v. Carroll
| Decision Date | 12 September 2017 |
| Docket Number | No. SC 96179.,SC 96179. |
| Citation | 527 S.W.3d 849 |
| Parties | Mary HANSON and David Hanson, Appellants, v. Margaret CARROLL and Bridget Carroll, Respondents. |
| Court | Missouri Supreme Court |
The paternal grandparents were represented by Lawrence G. Gillespie of Gillespie, Hetlage & Coughlin LLC in Clayton, (314) 863-5444.
The maternal great-grandmother and great-aunt were represented by David M. Slaby and Aaron L. Rankin of Paule, Camazine & Blumenthal PC in St. Louis, (314) 727-2266.
Mary and David Hanson (hereinafter and collectively, "Grandparents") appeal the circuit court's judgment dismissing their petition for visitation and custody of their grandson, R.H.C. (hereinafter, "Child"), over whom Margaret Carroll (hereinafter, "Carroll") and Bridget Carroll (hereinafter and collectively, "Guardians") have guardianship. This Court holds Grandparents' petition fails to state a claim upon which relief can be granted because their petition does not set forth the requisite elements of grandparent visitation under section 452.402.1 This Court further holds Grandparents cannot state a cause of action under section 452.375.5(5)(a) for custody or visitation when letters of guardianship, which granted custody with full powers as provided by law, have been issued by the probate division. This Court affirms the circuit court's judgment dismissing Grandparents' petition.2
Child was born February 13, 2007. The parties have been entangled in protracted litigation since shortly after Child's second birthday. In March 2009, Carroll filed a petition for appointment of guardianship over Child. Grandparents' son and Child's father, John Hanson (hereinafter, "Father"), was a party to the proceeding and sought a determination of paternity, which was confirmed by DNA testing. Father opposed Carroll's petition for guardianship and sought to remain Child's natural guardian. Carroll's granddaughter and Child's mother, Maire Carroll (hereinafter, "Mother"), consented to the guardianship, filing pleadings in which Mother stated she was unfit, unable, and unwilling to serve as Child's natural guardian. Grandparents supported Father's efforts to remain Child's natural guardian but did not seek guardianship for themselves.
On December 9, 2009, the probate division determined Mother and Father were unfit, unable, and unwilling to serve as Child's natural guardians. The probate division issued Carroll letters of guardianship, finding she was a suitable guardian, and it would be in Child's best interest that she be appointed his guardian. Subsequent to the probate division's guardianship award, Grandparents filed motions to intervene and to amend the guardianship judgment. The probate division overruled both motions. Neither Grandparents nor Father appealed the probate division's judgment.
In February 2010, Grandparents filed a petition for visitation and child custody pursuant to section 452.402. Carroll filed a motion to dismiss. The circuit court dismissed Grandparents' petition for failure to state a claim because it did not meet the statutory requirements for grandparent visitation under section 452.402. The circuit court noted Grandparents could have been heard on this issue had they filed their own petition for guardianship in the probate court. Grandparents did not appeal this judgment.
In February 2012, Grandparents filed another petition for grandparent visitation pursuant to section 452.402. Carroll again moved to dismiss the petition. The circuit court sustained Carroll's motion to dismiss for failure to state a claim, finding Grandparents could not meet the statutory requirements of section 452.402. Grandparents did not appeal this judgment.
In June 2012, Grandparents returned to probate division and filed a petition to remove Carroll as guardian and to appoint a successor guardian.3 Carroll filed a motion to dismiss. The probate court entered a judgment dismissing Grandparents' petition for lack of standing, finding Grandparents were not "interested parties" under the guardianship statutes.4 The probate division noted its prior judgment did not grant Grandparents any rights—including visitation—to Child that would vest them with standing to pursue the petition. Grandparents appealed, but their appeal was dismissed for lack of standing. In re R.C .H . , 419 S.W.3d 158 (Mo. App. E.D. 2013).
In April 2014, Carroll's daughter, Bridget Carroll, sought to be appointed as Child's co-guardian. Grandparents filed a motion to intervene, which the probate division overruled, finding they lacked legal standing and relying on R.H.C. for support. The probate division issued letters of guardianship to Bridget Carroll to serve as Child's co-guardian shortly thereafter. Grandparents did not appeal.
In March 2015, Grandparents filed a third petition for visitation and custody of Child, which is before this Court for review. Grandparents' third petition alleged that, since Child's birth, Grandparents have had liberal custody and visitation with Child and have interacted with Child as grandparents. Grandparents stated they have nurtured, loved, and developed a strong bond with Child. Grandparents averred Child lived with them at their residence, and they otherwise have spent significant time with Child. Grandparents alleged it was in Child's best interest and Child's welfare required Grandparents to continue to be a part of Child's life through scheduled visitation. Grandparents requested joint physical and legal custody of Child pursuant to chapter 452 generally. Guardians moved to dismiss the petition for lack of standing and for failure to state a claim upon which relief could be granted because Grandparents could not meet the statutory requirements of section 452.402.
After a hearing, the circuit court dismissed Grandparents' petition with prejudice. The circuit court noted Grandparents stated at the hearing they abandoned their claim for custody and limited their request to visitation only. The circuit court summarized the prior litigation and found there was no pending action under chapter 452 regarding Child's custody. The circuit court held none of the provisions of section 452.402 applied, and Grandparents could not maintain an original cause of action under section 452.375.5(5)(a) based on the facts alleged in their petition. Grandparents now appeal.
This Court reviews de novo a circuit court's judgment dismissing an action for failure to state a claim upon which relief can be granted. In re T.Q.L. , 386 S.W.3d 135, 139 (Mo. banc 2012). A motion to dismiss for failure to state a claim tests solely the adequacy of Grandparents' petition. Id. This Court reviews the petition to determine whether Grandparents alleged facts that "meet the elements of a recognized cause of action or of a cause that might be adopted in that case." Avery Contracting, LLC v. Niehaus , 492 S.W.3d 159, 161 (Mo. banc 2016). This Court assumes the facts alleged in the petition are true and all inferences from those facts are construed broadly in Grandparents' favor. T.Q.L. , 386 S.W.3d at 139.
Although Grandparents' third petition sought custody and visitation rights regarding Child, Grandparents abandoned their claim for custody at the hearing on Guardians' motion to dismiss and do not raise that issue on appeal. Accordingly, this Court will review the adequacy of Grandparents' petition to determine whether they have stated a cause of action for grandparent visitation.
Section 452.402 governs grandparent visitation. A circuit court may grant grandparents reasonable visitation when: (1) "The parents of the child have filed for a dissolution of their marriage[;]" or (2) "One parent of the child is deceased and the surviving parent denies reasonable visitation to a parent of the deceased parent of the child[;]" or (3) "The child has resided in the grandparent's home for at least six months within the twenty-four month period immediately preceding the filing of the petition[;]" and (4) "A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days." Section 452.402.1(1-4) (emphasis added).
Grandparents did not plead any facts to support any of the statutory requirements of section 452.402 in their petition. Grandparents also failed to reference or cite the statute in their petition. Further, Grandparents' appellate filings do not argue or attempt to justify their pleadings based on section 452.402. The circuit court correctly held Grandparents' petition did not state a claim for relief under section 452.402.
In T.Q.L. , this Court held a petitioner sufficiently alleged the elements necessary under section 452.375.5(5)(a) to establish third-party custody of a child whom he believed was his biological son. T.Q.L. , 386 S.W.3d at 137. The petitioner originally filed a petition for declaration of paternity, custody, and visitation. The mother advised the...
To continue reading
Request your trial
-
Bowers v. Bowers
...custody or visitation referenced in subparagraph (5)(a) as an alternative consideration to parental custody." Hanson v. Carroll , 527 S.W.3d 849, 854 (Mo. banc 2017). This section provides a basis for nonbiological parents to bring an action seeking child custody and visitation. McGaw v. Mc......
-
Conoyer v. Kuhl
...not otherwise recognized by law may seek a right to meaningful contact with the child. K.M.M, 539 S.W.3d at 738 ; see also Hanson v. Carroll, 527 S.W.3d 849, 854 (Mo. banc 2017) (legislature intended Section 452.375.5(5)(a) as "alternative consideration to parental custody"). In evaluating ......
-
X.P.E.L. v. J.L.L.
...505 S.W.3d 406 (Mo. App. E.D. 2016) (internal citation omitted). In Missouri, Section 452.402 governs grandparent visitation. Hanson v. Carroll, 527 S.W.3d 849, 852 (Mo. banc 2017). The legislature amended Section 452.402 in 2019. Preliminarily, we note the parties generally agree the amend......
-
Jackson v. Barton
...to this Court. Mo. Const. art. V, sec. 10.Standard of Review This Court reviews the grant of a motion to dismiss de novo. Hanson v. Carroll , 527 S.W.3d 849, 852 (Mo. banc 2017). "A motion to dismiss for failure to state a claim is solely a test of the adequacy of a plaintiff’s petition." S......