Lofton v. Lofton, 2014–CA–00226–COA.

• Decision Date: 20 October 2015
• Docket Number: No. 2014–CA–00226–COA.,2014–CA–00226–COA.
• Citation: 176 So.3d 1184
• Parties: Dalphanie LOFTON and Patrick Johnson, Appellants v. Ruby N. LOFTON, Appellee.
• Court: Mississippi Court of Appeals

176 So.3d 1184

Dalphanie LOFTON and Patrick Johnson, Appellants

v.Ruby N. LOFTON, Appellee.

No. 2014–CA–00226–COA.

Court of Appeals of Mississippi.

Oct. 20, 2015.

Jeanine M. Carafello, attorney for appellants.

Ruby N. Lofton, appellee, pro se.

Opinion

GRIFFIS, P.J., for the Court:

¶ 1. Ruby Lofton filed a petition for grandparent visitation in Simpson County Chancery Court. Ruby sought visitation with her daughter's child, Lauren.¹The chancellor awarded visitation to Ruby. Dalphanie Lofton and Patrick Johnson, Lauren's mother and father, appeal. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Lauren was born in January 2010. From January 2010 to October 2012, Lauren and Dalphanie lived with Ruby. While Dalphanie worked, Ruby and her mother, Bobbie Nell Lofton, looked after Lauren. During this time, Ruby also provided periodic financial assistance to Dalphanie and Lauren.

¶ 3. Prior to October 2012, Ruby and Bobbie Nell took Lauren to the emergency room on two separate occasions. As a result of these two visits, the Department of Human Services (DHS) opened two investigations of Patrick. A no-contact order went into place but was rescinded in October 2012, after which Dalphanie and Lauren moved in with Patrick.

¶ 4. After this move, Dalphanie prevented Ruby from seeing Lauren. Ruby subsequently filed a petition for grandparent visitation on April 22, 2013. The chancellor held a hearing on January 23, 2014. The chancellor found that visitation was in Lauren's best interests and awarded visitation. The order, entered on February 11, 2014, stipulated to two afternoon visits that progressed to one overnight visit a month, and finally to one weekend visit per month. Dalphanie and Patrick appeal this judgment.

STANDARD OF REVIEW

¶ 5. “ ‘Visitation and restrictions placed upon it are within the discretion of the chancery court.’ We are ‘bound to accept the findings of the chancellor unless he is manifestly wrong or there is clearly an abuse of discretion.’ ” Arrington v. Thrash,122 So.3d 144, 148(13)(Miss.Ct.App.2013) (citation omitted). “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Walley v. Pierce,86 So.3d 918, 920(8) (Miss.Ct.App.2011) (quoting Henderson v. Henderson,757 So.2d 285, 289 (¶ 19) (Miss.2000)). But “[w]hen reviewing a chancellor's interpretation and application of the law, our standard of review is de novo.” Vaughn v. Vaughn,56 So.3d 1283, 1288(17)(Miss.Ct.App.2011) (citing Tucker v. Prisock,791 So.2d 190, 192 (¶ 10) (Miss.2001)).

ANALYSIS

A. Merits of the Appeal

¶ 6. Dalphanie and Patrick argue on appeal that: (1) Ruby did not prove that Dalphanie and Patrick unreasonably withheld visitation, and (2) Ruby failed to meet her burden to show visitation was in Lauren's best interests. In her pro se brief, Ruby counters that the chancellor did not err in his findings.

¶ 7. Mississippi Code Annotated section 93–16–3(2)(Rev.2013) establishes the framework for grandparent visitation. A grandparent may petition for visitation “when [she] has shown: (1) that a ‘viable relationship’ with [her] grandchild has been established, (2) that visitation with the grandchild has been unreasonably denied by the grandchild's parent, and (3) that visitation is in the best interest of the grandchild.” Aydelott v. Quartaro,124 So.3d 97, 100(9) (Miss.Ct.App.2013) (citing Miss.Code Ann. § 93–16–3(2)).

¶ 8. To prove a viable relationship, a grandparent must show “[she has] voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months ... [and] had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.” Miss.Code. Ann. § 93–16–3(3)(Rev.2013). The parties agree that Ruby and Lauren have a viable relationship. Lauren and Dalphanie lived with Ruby for over two and a half years. Ruby also provided some financial support to Lauren during this time. The parties dispute, however, that Dalphanie and Patrick unreasonably denied visitation.

¶ 9. Dalphanie and Patrick contend that they did not unreasonably deny visitation because Ruby never requested to see Lauren. However, testimony showed that circumstances interfered with Ruby's ability to visit Lauren. First, Ruby testified that Dalphanie changed her phone number and ceased communication with Ruby. Additionally, Ruby, Dalphanie, and Patrick also testified about an incident at Dalphanie and Patrick's apartment complex, which resulted in Ruby's banishment from the complex. Ruby also testified that when she saw Lauren in town, whoever was with her would keep Ruby from approaching her. Thus, the evidence indicated that Ruby could not easily request visitation.

¶ 10. Alternatively, Dalphanie and Patrick argue that if they did deny Ruby visitation, it was reasonable. At the hearing, Dalphanie and Patrick testified they denied visitation because Ruby and Bobbie Nell initiated the two DHS cases against Patrick. Dalphanie and Patrick admitted, however, that while they believed Ruby and Bobbie Nell reported Patrick, they had no proof. Further, Ruby and Bobbie Nell testified that neither of them filed a complaint with DHS against Patrick.

¶ 11. “The determination whether parents are unreasonable in denying visitation in whole or part to grandparents is not a contest between equals. Parents with custody have a paramount right to control the environment, physical, social, and emotional, to which their children are exposed.” Stacy v. Ross,798 So.2d 1275, 1280(23)(Miss.2001) (citations omitted). In Stacy,the Mississippi Supreme Court found the record did not support the chancellor's findings that the parents unreasonably denied visitation. Id.at 1282 (¶ 29). The supreme court found the circumstances did not justify the extent of the visitation ordered by the chancellor. Id.

¶ 12. Unlike in this case, however, the parents in Stacywere willing to allow some form of visitation. Id.at (¶ 28). Here, Dalphanie and Patrick denied all visitation. Further, the chancellor found that based on their assumptions, Dalphanie and Patrick prevented any visitation with Lauren. The chancellor concluded that Dalphanie and Patrick's belief that Ruby and Bobbie Nell reported to DHS was unfounded and, therefore, unreasonable. As such, the chancellor did not err in finding Dalphanie and Patrick unreasonably denied visitation.

¶ 13. Lastly, Dalphanie and Patrick argue the chancellor erroneously found that visitation with Ruby was in Lauren's best interests. To determine whether grandparent visitation is in the best interests of the child, the chancellor must consider the factors set forth by Martin v. Coop,693 So.2d 912, 916 (Miss.1997). The Martinfactors include:

1. The amount of disruption that extensive visitation will have on the child's life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.

2. The suitability of the grandparents' home with respect to the amount of supervision received by the child.

3. The age of the child.

4. The age, and physical and mental health of the grandparents.

5. The emotional ties between the grandparents and the grandchild.

6. The moral fitness of the grandparents.

7. The distance of the grandparents' home from the child's home.

8. Any undermining of the parent's general discipline of the child.

9. Employment of the grandparents and the responsibilities associated with that employment.

10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent's manner of child rearing is not to be interfered with by the grandparents.

Id.The Martincourt continued: “[N]one of these factors should receive more weight in the chancellor's analysis than any other. These factors are further not all-inclusive. The chancellor should weigh all circumstances and factors he feels to be appropriate.” Id.

¶ 14. Dalphanie and Patrick allege the chancellor failed to make a proper finding as to all of the Martinfactors. Specifically, they argue the chancellor failed to address the first two factors: whether visitation would disrupt Lauren's life, and whether Ruby's home was suitable.

¶ 15. The chancellor detailed his findings of the Martinfactors at the conclusion of the hearing. The chancellor specifically found that Lauren's age of four favored an interaction with Ruby, Ruby was in good health and only fifty years old, Ruby and Lauren likely shared emotional ties, Ruby lived only ten miles from Lauren, and Ruby had worked in steady employment for the previous ten years and rarely worked weekends. Though there was some testimony questioning Ruby's moral fitness, the chancellor found the evidence was insufficient to show she was morally unfit. Further, Ruby testified she would uphold the parents' reasonable discipline of Lauren and not interfere with the parenting of Lauren. These factors favored visitation.

¶ 16. The chancellor did, however, fail to address whether the visitation would be disruptive or if Ruby's home was suitable. “This Court has held that ‘making findings of fact under the Martinfactors is an integral part of a determination of what is in the best interests of a child.’ ” Townes v. Manyfield,883 So.2d 93, 96 (¶ 18) (Miss.2004)(quoting T.T.W. v. C.C.,839 So.2d 501, 505 (¶ 12) (Miss.2003)). “However, it is presumed on appeal that the chancellor has taken all factors into consideration.” T.T.W.,839 So.2d at 505 (¶ 11).

¶ 17. The supreme court reversed and remanded in both Townesand T.T.W.because the chancellors failed to sufficiently consider all of the Martinfactors. Townes,883 So.2d at 97–98 (¶ 30); T.T.W.,839 So.2d at 506 (¶ 17). In Townes,the supreme court...