Kerr v. Osborne
| Decision Date | 22 April 2016 |
| Docket Number | NO. 2015-CA-000208-ME,2015-CA-000208-ME |
| Parties | JUDY KERR APPELLANT v. MICHAEL OSBORNE and TONI KERR (JONES) APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
Michael Osborne (Osborne) is the biological father and Toni Kerr (Toni) is the biological mother of D.O., their minor child. Osborne has sole custody of D.O. Toni has a history of drug abuse and has been found to be unfit to care for her child.
Judy Kerr (Judy) is Toni's mother. She lives in Lexington, Kentucky. As early as 2008, she was authorized to supervise Toni's visits with D.O. From May 20, 2008, to January 23, 2009, Toni only visited D.O. once. The trial court determined that Judy's relationship with D.O. since 2009 has been infrequent and inconsistent.
Judy moved to establish grandparent visitation with D.O. on July 11, 2014. The trial court held a hearing on this motion two months later. During the hearing, Osborne testified that he did not think granting Judy grandparent visitation would serve D.O.'s best interests. Osborne stated that he feared Judy would attempt to unduly influence D.O. Osborne also added that D.O. did not want Judy to visit.
After considering Osborne's testimony and applying its findings against the factors provided in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), the trial court concluded that it would not serve D.O.'s best interests for Judy to have visitation rights. The trial court entered an order denying Judy's motion on December 9, 2014. The trial court also denied subsequent motions for a new trial and to alter, amend, or vacate on January 30, 2015. In this final judgment, the trial court included supplemental findings of fact and conclusions of law. According to Judy, the trial court erred in making this subsequent denial because it did notconsider a newly discovered affidavit from Toni wherein she swore that Judy did not approve of drug abuse. This appeal followed.
An appellate court will not set aside a trial court's factual findings unless they were clearly erroneous. CR1 52.01. A trial court's factual findings are not clearly erroneous if they are supported by substantial evidence. Elkins v. Elkins, 854 S.W.2d 787, 788 (Ky. App. 1993). "The test of substantiality of evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). A trial court's application of the law to the facts of a particular case is reviewed de novo. Keeney v. Keeney, 223 S.W.3d 843, 848-49 (Ky. App. 2007).
On appeal, Judy contends that the trial court misapplied existing law to the facts of this case. Osborne counters that the trial court addressed each factor provided in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), and properly concluded that Judy did not show by clear and convincing evidence that visitation was in D.O.'s best interest. For the following reasons, we agree with Osborne.
In general, a circuit court "may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessaryorders to enforce the decree if it determines that it is in the best interest of the child to do so." KRS2 405.021(1). However, when a fit parent denies grandparent visitation, this statutory language yields to the traditional presumption recognized in Troxel v. Granville, 530 U.S. 57, 69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that a fit parent's decision serves the child's best interest. Walker, 382 S.W.3d at 870-71. In other words, under KRS 405.021, the circuit court must first presume that a fit parent's decision to deny grandparent visitation serves the child's best interest, and the grandparent seeking visitation must then prove otherwise by clear and convincing evidence. Id. at 71. Factors the circuit court may consider in determining whether grandparent visitation clearly serves the child's best interest are as follows: (1) the nature and stability of the relationship between the child and the grandparent seeking visitation; (2) the amount of time the grandparent and child spent together; (3) the potential detriments and benefits to the child from granting visitation; (4) the effect granting visitation would have on the child's relationship with the parents; (5) the physical and emotional health of all the adults involved, parents and grandparents alike; (6) the stability of the child's living and schooling arrangements; (7) the wishes and preferences of the child; and (8) the motivation of the adults participating in the grandparent visitation proceedings. Id. (citing Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. App. 2004)).
Here, the trial court properly concluded that Judy did not clearly overcome Osborne's decision as a fit parent to deny grandparent visitation. Withrespect to the first and second Walker factors addressing the nature and stability of the relationship between the grandparent and child and amount of time spent together, the trial court noted that Judy only supervised Toni's visitation with D.O. in 2008 and that Judy's interaction with D.O. since then has been infrequent, sporadic, sparse, and based on the parties' testimony, amounted to "very little time together."
As for the third and sixth factors that focus on the benefits and drawbacks of visitation, the trial court observed that Judy lived more than 120 miles away from where D.O. resides, and that it would likely interfere with D.O.'s extracurricular activities. Moreover, the trial court found, based on Judy's testimony, that Judy might allow Toni to visit D.O. despite Osborne's wishes. This possibility posed a potential risk to D.O. according to the trial court.
Regarding the fourth and fifth factors, supra, relating to the effect granting visitation would have on the child's relationship with the parents and the health of the adults involved, the trial court found, based on the testimony of the parties, that Judy has anger issues and that her emotional health is questionable. Though the trial court did not find D.O.'s relationship with Osborne was likely to suffer, it did state that potential contact with Toni through Judy was a concern.
Finally, the trial court found the seventh and eighth factors weigh against Judy. The trial court considered Osborne's...
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