Hunt v. Perry

• Decision Date: 11 December 2003
• Docket Number: No. 03-420.,03-420.
• Citation: 138 S.W.3d 656,355 Ark. 303
• Parties: Greg HUNT v. Nancy PERRY.
• Court: Arkansas Supreme Court

138 S.W.3d 656

355 Ark. 303

Greg HUNT v. Nancy PERRY.

No. 03-420.

Supreme Court of Arkansas.

December 11, 2003.

Appeal from the Circuit Court, Yell County, David M. McCormick, J Joel W. Price, Fort Smith, for appellant.

Peel Law Firm, P.A., by: John R. Peel, Russellville, for appellee.

DONALD L. CORBIN, Justice.

This case presents another challenge to the Arkansas Grandparent Visitation Act ("GPVA"), codified at Ark.Code Ann. § 9-13-103 (Repl.2002).¹ Appellant Greg Hunt appeals the order of the Yell County Circuit Court denying his petition to terminate Appellee Nancy Perry's visitation rights with his two children. On appeal, Hunt argues that the trial court erred in ruling that res judicata barred his challenge to the constitutionality of the GPVA. He also argues that the trial court erred in failing to find that there had been a change in circumstances warranting termination. As this appeal involves an issue of first impression and requires development of the law, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(1) and (5). We affirm.

Greg Hunt is the father of two children, Ali and Seth. The children's mother, Karen Hunt, died on October 6, 1999. Prior to her death, she and Greg adopted Ali, who was born on March 26, 1995. Seth was born to the couple on December 26, 1997. Prior to the death of Karen, Karen's mother, Nancy Perry, visited the family regularly and had regular contact with her grandchildren. Immediately following Karen's death, Nancy continued to visit her son-in-law and grandchildren.

On February 4, 2000, Greg married Gretchen Hunt, who had three children of her own. Greg sought to adopt Gretchen's children, and she did the same with his. While the record is not clear as to the cause, it is apparent that Greg's relationship with Nancy began to deteriorate sometime after his remarriage. This deterioration culminated in Greg and Gretchen sending Nancy a letter notifying her that she would be allowed to see her grandchildren once every three months for a period of three hours, with the entire Hunt family present. This letter was dated August 2, 2000.

Soon after, on August 21, 2000, Nancy filed a petition seeking visitation with Ali and Seth, pursuant to section 9-13-103. Greg challenged Nancy's attempt to obtain visitation, arguing that the GPVA was unconstitutional and that visitation was not in the best interests of his children. The State intervened in the action on November 1, 2000, arguing that the GPVA was constitutional. Immediately prior to the commencement of this litigation, the United States Supreme Court handed down Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), invalidating a Washington statute permitting grandparent's visitation. Greg filed a motion for summary judgment on August 30, 2000, arguing that in light of the Supreme Court's decision in Troxel the court should find the Arkansas statute unconstitutional as well. Following a hearing on the summary-judgment motion, the trial court entered an order finding that the Arkansas statute was not rendered invalid by the decision in Troxel because Arkansas's statute was much more restrictive.

On April 4, 2001, the trial court entered an order granting Nancy's petition for visitation. Pursuant to the court's order, Nancy was granted visitation with Ali and Seth once a month for a twenty-four-hour period. Greg did not appeal this order.

On May 8, 2002, Greg filed a petition seeking to terminate Nancy's grandparent visitation. Therein, he alleged that this court's decision in two recent cases rendered the Arkansas GPVA unconstitutional and asserted that those decisions constituted a change in circumstances warranting termination. Greg also averred that visitation was no longer in the best interests of his children due to a change in personal circumstances. In response, Nancy filed a motion for partial summary judgment, arguing that Greg was barred from relitigating the issue of the GPVA's constitutionality because he failed to appeal the trial court's previous order finding the statute constitutional. Nancy's motion was granted on November 25, 2002.

The trial court then held a hearing on December 11, 2002, to determine if there had been a change in circumstances that warranted a termination of Nancy's visitation. Charlotte Carlson, a licensed professional counselor, testified that she was contacted by Gretchen and Greg Hunt in June 2000, about concerns over the blending of their two families. Carlson testified that she was present in the Hunt's home during Nancy's first court-ordered visitation. According to Carlson, Nancy refused to shake her hand or even make eye contact with her. Carlson further testified that since the visits with Nancy began, she has noticed behavioral changes in both Ali and Seth. Specifically, she noted that Ali was difficult to separate from her parents, probably due to the child having abandonment issues. During one visit with Carlson, Ali spontaneously stated that she did not want to visit her grandmother anymore. Carlson stated that Ali complained about her grandmother forcing her to watch videos and look at pictures of her mother, Karen. Carlson also said that Seth once said, "I just want to rip her head off." When Carlson asked Seth who he was talking about he replied, "Grandma, grandmother's." Despite the behavioral changes in the children, Carlson stated that she had never recommended terminating visitation with Nancy, but that she did believe some kind of change needed to be made. On cross-examination, Carlson stated that she would recommend that the grandparent visitation occur under parental control, specifically that Nancy should participate in family activities.

Greg testified at that hearing that since his children had been visiting Nancy, he has noticed a change in their demeanor. Specifically, he testified that when Ali and Seth return from a visit, it takes them a couple of days to open up again. He stated that he had noticed problems with Ali and her schoolwork. Greg also stated that since the visitation started, Seth breaks out in hives over his entire body. According to Greg, the court-ordered visits also interfere with the way that he and Gretchen are trying to raise all of their children.

Also testifying was Jennifer Hawkins, a teacher at the Plainview-Dover School. Hawkins stated that she taught Ali during the past school year. At the beginning of the year, Hawkins gave the students an assignment to express what makes them happy and what makes them unhappy. According to Hawkins, Ali stated that what makes her happy "is not going to my grandmother's house" and what makes her unhappy "is going to my grandmother's house."

Finally, Dr. Steven Shry, a clinical psychologist, testified that he had evaluated Ali and Seth in connection with this case. He stated that nothing about the tests he conducted or his personal interaction with the children led him to believe that they had a problem visiting their grandmother.

At the conclusion of the testimony, the trial court ruled from the bench that the petition to terminate would be denied. He noted that the biggest change in circumstances since visitation was ordered was the fact that Greg and Gretchen had consolidated their families through the adoption process, but that such change was not significant enough to warrant modification of the visitation. The court recognized that there was evidence of some behavioral problems with the children, but stated that it was not possible to determine whether those problems stemmed from the visitation with Nancy or the blending of Greg's and Gretchen's families. The trial court concluded that there were no material and significant changes in circumstances to warrant termination or modification of the previous order.

The trial court subsequently entered two orders on December 26, 2002. In the first order, the trial court ruled that the previous order determining that the GPVA was constitutional was res judicata and, thus, Greg was barred from relitigating that same issue. In the second order, the trial court held that there were no material changes that warranted termination of Nancy's visitation rights. Greg filed a motion for reconsideration and new trial on January 6, 2003, arguing that the trial court erred in ruling that res judicata barred him from relitigating the issue of the constitutionality of the statute. The trial court denied his motion on January 13, 2003. This appeal followed.

For his first point on appeal, Greg argues that the trial court erred in ruling that his argument that the GPVA is unconstitutional was barred by the doctrine of res judicata. In support of this argument, Greg points out that this court had not yet handed down either Linder, 348 Ark. 322, 72 S.W.3d 841, or Seagrave, 349 Ark. 433, 79 S.W.3d 339, and, thus, he did not have the benefit of the constitutional analysis enunciated in those cases.² Nancy argues that the trial court was correct in its ruling, as all of the elements of res judicata are satisfied in this case. We agree that res judicata applies in this case.

Res judicata means a thing or matter that has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003); JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980). The doctrine of res judicata bars the relitigation of claims that were actually litigated in the first suit, as well as those that could have been litigated. Linder, 348 Ark. 322, 72 S.W.3d 841; State Office of Child Support Enforcem't v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). The underlying policy of res judicata is to prevent parties from relitigating issues or raising new issues when they have already been given a fair trial. Id.

In Linder, 348 Ark. 322, 72 S.W.3d 841, this court noted that the application of res judicata in the context of...