Ingram v. Knippers, 96,331.

CourtSupreme Court of Oklahoma
Writing for the CourtHODGES, J.
Citation2003 OK 58,72 P.3d 17
PartiesHolly Suzanne INGRAM, Plaintiff/Appellee, v. John Michael KNIPPERS, Defendant, John C. Knippers, Third Party Defendant/Appellant.
Docket NumberNo. 96,331.,96,331.
Decision Date03 June 2003

72 P.3d 17
2003 OK 58

Holly Suzanne INGRAM, Plaintiff/Appellee,
John Michael KNIPPERS, Defendant,
John C. Knippers, Third Party Defendant/Appellant

No. 96,331.

Supreme Court of Oklahoma.

June 3, 2003.

72 P.3d 19
Sharon L. Corbitt, Corbitt & Johnson, P.C., Brian S. Gaskill, Sneed Lang, P.C., Tulsa, OK, for the Appellant

Mark A. Zannotti, Tulsa, OK, for the Appellee.


¶ 1 The issues before this Court are: (1) whether the district court erred in refusing grandparent's request to enforce a consent visitation order, (2) whether the district erred in treating mother's motion to terminate visitation as an objection to request for enforcement of grandparental visitation, (3) what are the standards for terminating or modifying a consent decree granting grandparental visitation, and (4) who should bear the burden of proof in modification proceedings.


¶ 2 Laine Christian Ingram (Child) was born on May 12, 1995, to Holly Suzanne Ingram (Mother) and John Michael Knippers (Father). The parents never married and live in separate households. Mother filed a petition against Father seeking custody and child support. On December 2, 1997, the district court awarded custody of Child to Mother, set a visitation schedule for Father, and fixed the Father's monthly child support obligation.

¶ 3 On June 2, 2000, Child's paternal grandfather, John C. Knippers (Grandfather), filed a motion to intervene and for visitation. Grandfather alleged that he had been involved in Child's life since birth, that he had provided financial and other support for both Child and Mother, that grandparental visitation would be in Child's best interest, and that Grandfather had unsuccessful attempted to effect visitation through his direct contact with Mother.

¶ 4 Pursuant to an agreement, the district court entered an order on November 29, 2000, allowing visitation between Child and Grandfather. The schedule covered October and November of 2000. The parties agreed and the court ordered that further visitation would be as recommended by Child's counselor.

¶ 5 In December of 2000, Mother unilaterally terminated Grandfather's visitation with Child. Mother did not seek court approval before terminating the visitation. Grandfather filed a motion to enforce his visitation rights, alleging that Mother had unreasonably interfered and denied him visitation. He requested an order setting a specific visitation schedule, requiring Mother to post a bond, and awarding him costs and attorney fees.

¶ 6 Mother then filed a motion seeking to terminate Grandfather's visitation. She argued that courts may not order grandparental visitation absent a showing that the custodial parent is unfit or that the child will suffer harm if the visitation is not allowed. She did not allege that termination of Grandparent's visitation was in Child's best interest. Even though Mother specifically requested that the visitation be terminated and that Grandfather's motion be denied, the district court treated Mother's motion only as an objection to Grandfather's motion to enforce visitation. Grandfather then filed an application for a contempt citation for Mother's unilateral action terminating Grandfather's visitation in contravention of the November 20, 2000 order. He requested reinstatement of the order, Mother's incarceration, and an award of costs and attorney fees.

¶ 7 At a hearing on the motions, the district court placed the burden of proof on Grandfather to show Mother's unfitness or potential harm to Child. Grandfather presented the testimony of Child's counselor that termination of grandparental visitation would result in harm to Child. Mother did not allege or present any evidence that there had been a substantial change of circumstances or that terminating visitation would be in Child's best interest. On April 30, 2001, the district court entered an order denying Grandfather's motion to enforce his visitation, effectively terminating Grandfather's visitation and mooting the remaining issues.

72 P.3d 20
¶ 8 Grandfather appealed. Mother has not submitted an appellate brief even though she was given opportunity to do so. Only Grandfather's brief was before the Court of Civil Appeals and is before this Court. The Court of Civil Appeals concluded that this Court's opinion in Scott v. Scott, 2001 OK 9, 19 P.3d 273, controlled. Rejecting the district court's reliance on Neal v. Lee, 2000 OK 90, 14 P.3d 547, and In re Herbst, 1998 OK 100, 971 P.2d 395, the Court of Civil Appeals found that the controlling factor of the present case was the procedural posture which was akin to that in Scott.

¶ 9 Mother petitioned for certiorari. This Court granted certiorari and now clarifies the standard and burden of proof necessary in proceedings to enforce agreed court-ordered grandparental visitation and to clarify the standard and burden of proof required to modify a grandparental visitation order. We do not address a scenario where a grandparent is attempting to expand visitation beyond what was agreed to by a parent. These facts are not before this Court.


¶ 10 Title 10, section 5 of the Oklahoma Statutes allows a court to grant grandparental visitation with an unmarried minor grandchild under certain circumstances if the court deems it to be in the child's best interest. In Herbst, this Court held section 5 to be unconstitutional to the extent it permitted district courts to grant grandparental visitation over the objection of fit parents without a showing of potential harm to the child when the family is intact. This Court extended Herbst to apply when the children are living with one parent and the other parent is deceased. Neal, 2000 OK 90, 14 P.3d 547.

¶ 11 Then in Scott, this Court held that termination of an existing grandparental visitation order based on agreement of the parties is not subject to collateral attack in a modification proceeding but that the moving party is required to show a change in circumstances adversely effecting the child's best interest such that a change in visitation would improve the child's temporal, moral and mental welfare. Scott, 2001 OK 9 at ¶ 5, 19 P.3d at 275. Unlike Neal and Herbst, the child in Scott was adopted. However, this was not a factor in this Court's decision. Adoptive parents have no lesser rights than biological and single parents. Further, the remand in Scott was based on the district's court failure to follow statutory procedures required by title 10, section 5.1


¶ 12 Mother claims: (1) the statute which allowed the initial grant of grandparental

72 P.3d 21
visitation required a showing of harm to Child or parental unfitness; (2) the Grandfather failed to meet his burden of showing harm; (3) the visitation should not have been granted, and (4) she should be allowed to unilaterally terminate the visitation. The problem with Mother's claim is that the initial visitation was a consent order entered after Mother and Grandfather had reached an agreement. Because Mother consented to the initial visitation, the order was not entered under authority of title 10, section 5, and Mother's rights were not infringed by the order. Further, visitation order is not now subject to collateral attack on the ground that title 10, section 5 is unconstitutional

¶ 13 Even if the grant of grandparental visitation had been pursuant to title 10, section 5, the order is not subject to collateral attack on the grounds that section 5 was declared unconstitutional. A judgment based on a statute which is later declared unconstitutional "is not void so as to be subject to collateral attack" but at most voidable and subject only to direct attack. Fitzsimmons v. City of Oklahoma City, 1942 OK 422, ¶ 8, 135 P.2d 340, 343. Applying this rule, a grant of grandparental visitation made under the authority of section 5 is "voidable and subject to direct attack, but it [is] not void so as to be subject to collateral attack." Fitzsimmons, 1942 OK 422 at ¶ 8, 135 P.2d at 343; see Scott, 2001 OK 9, 19 P.3d 273.

¶ 14 A judgment based on an agreement of "the parties is enforceable and valid even though it does what a trial court cannot [otherwise] do, provided the agreement does not contravene public policy." Whitehead v. Whitehead, 1999 OK 91, ¶ 10, 995 P.2d 1098, 1101. Nothing in title 10, section 5 or this Court's jurisprudence prevents a court from granting grandparental visitation when the parties agree to the visitation. Mother has failed to present any convincing argument that the grandparental visitation order was void such that it is subject to collateral attack in an enforcement proceeding.

¶ 15 The Legislature has enacted procedures in title 10, section 5(E) that a district court must follow before acting on a motion to enforce grandparental visitation. Section 5(E)(2) requires the court to direct mediation and enter an order. If the parties reach an agreement, the order shall memorialize the parties' agreement. The court may sanction the parent by assessing reasonable attorney fees, mediation costs, and court costs and ordering "any other remedy the court considers appropriate" including finding the parent in contempt of court. Okla. Stat. tit. 10, § 5(E)-(F). However, because Grandfather filed a motion for enforcement of his visitation rights, the court must follow the procedure outlined in title 10, section 5(E) requiring that the court direct the dispute to mediation and that the mediator file a record of mediation termination along with any agreement reached by the parties. Thus, Grandfather's motion to enforce should have been granted subject to the outcome of Mother's motion to terminate and the procedures set out in title 10, section 5(E).


¶ 16 The district court treated Mother's motion to terminate grandparental visitation as a response to Grandfather's motion to...

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