Linder v. Linder

• Decision Date: 25 April 2002
• Docket Number: No. 01-380.,01-380.
• Citation: 72 S.W.3d 841,348 Ark. 322
• Parties: Lea Ann LINDER, Carolyn Greene, and Cleta Johnson v. Bill LINDER and Mildred Sims.
• Court: Arkansas Supreme Court

72 S.W.3d 841

348 Ark. 322

Lea Ann LINDER, Carolyn Greene, and Cleta Johnson v. Bill LINDER and Mildred Sims.

No. 01-380.

Supreme Court of Arkansas.

April 25, 2002.

Joel W. Price, Fort Smith, for appellants.

Ronald W. Metcalf, P.A., by: Ronald W. Metcalf, Fort Smith, for appellees.

Mark Pryor, Att'y Gen., by: Melanie Winslow, Ass't Att'y Gen., Little Rock, for intervenor.

ROBERT L. BROWN, Justice.

This is a grandparent visitation-rights case. At issue is the constitutionality of the Arkansas Grandparental Visitation Act, codified at Ark.Code Ann. § 9-13-103 (Repl.2002) (GPVA). There are three appellants in this matter: Lea Ann Linder, mother of Brandon Linder, the minor child around whom this litigation revolves; Cleta Johnson, Lea Ann's mother; and Carolyn Greene, Lea Ann's sister.¹ The appellees are Bill Linder, Brandon's paternal grandfather, and Mildred Sims, Brandon's paternal grandmother. Bill Linder and Mildred Sims were granted visitation with Brandon by the trial court. Lea Ann now appeals this grant of visitation. The State of Arkansas has intervened to defend the constitutionality of the GPVA.

On April 24, 1992, Lea Ann Linder married Steven Linder. They had one child, Brandon, who was born on November 17, 1995. Steven, Lea Ann, and Brandon lived near Alma and close to Bill Linder, Steven's father. Bill and Steven's mother, Mildred Sims, had divorced some years earlier. Bill was remarried to Donna Linder. Bill and Donna had two children, Nikki and Stacey. Steven worked with Bill on a daily basis, and Bill saw Brandon on a regular basis.

On November 11, 1997, just before Brandon's second birthday, Steven Linder was killed in a four-wheel all-terrain vehicle accident while he was hunting. In the immediate aftermath of Steven's death, Lea Ann and Brandon spent Brandon's birthday, part of Thanksgiving, and part of the Christmas Eve holiday with Bill and Donna Linder. During this time, Bill saw Brandon on a fairly regular basis, though less than when Steven was alive.

For about four months after Steven's death, Lea Ann and Brandon remained in the house in which they had all lived, which was in close proximity to Bill's home. According to Lea Ann, she did not feel comfortable living in the house, and she and Brandon moved into a duplex in nearby Van Buren. Lea Ann got a job and put Brandon in day care. While they lived in Van Buren, Lea Ann told Bill that he could see Brandon if he came to their home. He did not do so. In 1998, Lea Ann and Bill had arrangements to spend part of the Easter holiday together, but those plans fell through when Lea Ann called Bill and canceled due to a conflict.

In the late spring of 1998, relations between Bill and Lea Ann became more strained. At the end of May, Lea Ann moved to a house in Fort Smith. Soon thereafter, on June 11, 1998, Bill contacted Lea Ann and specifically requested to see Brandon. The two were unable to work out a mutually convenient time for the visit. On June 24, 1998, Bill Linder filed a petition for visitation in the Sebastian County Chancery Court.

In the visitation petition, Bill alleged that he had a close and loving relationship with Brandon, and that Lea Ann was unreasonably denying him access to his grandson. He proceeded in his petition under Ark.Code Ann. § 9-13-101 (Repl. 2002), Arkansas's general custody statute and asserted that that statute, which provided for grandparental custody, gave the chancery court the implied power to grant grandparental visitation. The petition did not invoke rights under the GPVA. Nor did the petition assert that Brandon would suffer harm if he did not see his grandfather, or that Lea Ann Linder was an unfit mother.

The parties began the discovery process. Lea Ann was deposed, and in her deposition, she asserted that she did not want Bill to have as much visitation as he wanted, but that she would agree to limited visitation. She stated, as her reason for limiting the visitation, that Bill and Steven's mother, Mildred Sims, were locked in a power struggle over family members' loyalties. She further stated that Steven, during his life, had always had problems with his father, and that she did not want Brandon to have the same problems. She also stated that Steven had confided in her that he did not enjoy working with his father, and that his father was a source of emotional anguish to him.

After the deposition, Bill moved for temporary visitation, alleging that discovery could take some time and that he should be allowed to see Brandon during the interim period. On August 5, 1998, the trial court entered a temporary visitation order pending a hearing on the petition. The order, entered on August 10, 1998, granted Bill temporary visitation. In its order, the trial court required Lea Ann to allow Bill to see Brandon according to the Twelfth Judicial District's standard visitation order and allowed limited weekend visitation with Brandon.

On August 13, 1998, Lea Ann filed a motion to set aside the temporary order and requested an emergency hearing. She attached several letters from medical professionals and friends expressing the opinion that Brandon should not be separated from his mother during his time of loss and confusion about his father's death. During the pendency of her motion to set aside, Lea Ann did not allow Bill to see Brandon, contrary to the trial court's temporary order. Bill filed a motion to show cause on why she should not be held in contempt of court.

On August 27, 1998, the chancellor held a hearing on the temporary order and on Bill's motion for contempt. After hearing the testimony of several witnesses for both sides, including Lea Ann and Bill, the trial court ruled from the bench that it was in Brandon's best interests to grant Bill's petition for visitation. In its order, the trial court allowed Bill visitation every other weekend. The court also found Lea Ann to be in contempt of court but did not impose a sanction. The trial court's order was not filed until September 2, 1998.

On August 31, 1998, Bill filed another motion for contempt due to Lea Ann's failure to comply with the trial court's August 27 bench ruling. On September 2, 1998, another contempt hearing was held. Again, the chancellor found Lea Ann to be in contempt of court but did not sanction her. After this hearing, Lea Ann allowed Bill two visits with Brandon as ordered by the court. This was the first time Bill had seen Brandon since February 1998. Lea Ann, however, did not allow a third visit, because she stated that Brandon had a fever and was too ill to visit. In response Bill filed his third motion for contempt on September 22, 1998.

On September 25, 1998, Lea Ann filed a Notice of Appeal from the September 2, 1998 order but did not pursue this appeal and never lodged a record in the matter.

On October 6, 1998, Bill's counsel wrote a letter to the trial court in which he averred that on October 3, 1998, Bill picked up Brandon from Lea Ann's house for an overnight visit. According to the letter, there were several irregularities with this visit. First, Lea Ann's sister, Carolyn, was present at the pick-up and, as was apparently her custom, she videotaped the pick-up. Second, Lea Ann called to check on Brandon nine times during the visit. Third, Lea Ann appeared uninvited and unannounced twice during the visit: first in the parking lot of the county fair, and then at Bill's home at midnight. Subsequent to this overnight visit, the trial court warned the parties to cooperate.

Contrary to the trial court's letter and prior orders, Lea Ann did not make Brandon available for his next visitation. On October 12, 1998, Bill filed a fourth motion for contempt. On October 15, 1998, the trial court held an emergency hearing on this motion. Lea Ann did not appear at the hearing and had fled the jurisdiction, taking Brandon with her. On October 22, 1998, the trial court found Lea Ann in contempt of court and issued a warrant for her arrest. On October 26, 1998, Bill moved for temporary custody of Brandon. The same day, the court granted Bill's motion ex parte and awarded Bill temporary custody of Brandon.

Lea Ann's and Brandon's whereabouts remained unknown for a year, despite the efforts of local, state, and federal law enforcement officers. After months of attempting to locate the two, Bill joined Cleta Johnson (Lea Ann's mother) and Carolyn Greene (Lea Ann's sister) in his visitation action. He then deposed them regarding Lea Ann's and Brandon's location. Both women refused to disclose the information and invoked their Fifth Amendment protection against self-incrimination on the advice of counsel.

On October 14, 1999, Bill moved to hold Cleta and Carolyn in contempt of court for their refusal to disclose Lea Ann's location. On October 18, 1999, the trial court ordered them jailed for contempt and conditioned their release on Lea Ann's surrendering herself to the court. That same day, Cleta and Carolyn told the court that Lea Ann and Brandon were living in Columbus, Ohio.

While living in Ohio, Lea Ann had married a man named Wes Carlisle. Ohio law enforcement authorities located Lea Ann and Brandon in Columbus, and Lea Ann surrendered herself to the court that evening. Cleta and Carolyn were released from jail the next day, and Lea Ann was placed in jail until the trial court released her on October 25, 1999. Brandon was delivered to Bill under the trial court's custody order. On October 28, 1999, Lea Ann moved to have custody of Brandon restored to her because she was now back in the jurisdiction of the trial court. The motion further alleged that while in Bill's custody, Brandon was attacked by a dog and suffered lacerations on his face. There is nothing in the record before us to indicate that the trial court took any action on her motion.

On November 4, 1999, Bill moved that all parties to the litigation undergo psychological evaluations. He specifically requested that Dr. Mary "Guen" Wright, a...