Lovlace v. Copley

• Decision Date: 06 September 2013
• Docket Number: No. M2011–00170–SC–R11–CV.,M2011–00170–SC–R11–CV.
• Parties: Neal LOVLACE et al. v. Timothy Kevin COPLEY et al.
• Court: Tennessee Supreme Court

418 S.W.3d 1

Neal LOVLACE et al.

v.Timothy Kevin COPLEY et al.

No. M2011–00170–SC–R11–CV.

Supreme Court of Tennessee,

at Nashville.

Feb. 7, 2013 Session.

Sept. 6, 2013.

Thomas F. Bloom, Nashville, Tennessee, and Grant C. Glassford, Brentwood, Tennessee, for the Appellants, Clayton O'Neal Lovlace and Norma Jean Lovlace.

Rebecca K. McKelvey and Gregory D. Smith, Nashville, Tennessee, for the Appellees, Timothy Kevin Copley and Beth Copley.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, J.

In this grandparent visitation case, we must determine, in the absence of a controlling statutory provision, the appropriate burdens of proof and standards courts should apply where a grandparent and a parent seek to modify and terminate, respectively, court-ordered grandparent visitation. We hold that when a grandparent or a parent initiates a proceeding to modify or terminate court-ordered grandparent visitation, courts should apply the burdens of proof and standards typically applied in parent-vs-parent visitation modification cases. Thus, the burden of proof is upon the grandparent or parent seeking modification or termination to demonstrate by a preponderance of the evidence both that a material change in circumstances has occurred and that the change in circumstances makes the requested modification or termination of grandparent visitation in the child's best interests. Applying this holding, we conclude that the record in this case supports the trial court's judgment modifying grandparent visitation. However, we conclude that the trial court failed to make sufficiently specific findings of fact to support its judgment finding the mother in contempt of the order granting grandparent visitation. Accordingly, we reverse the Court of Appeals' judgment, reinstate that portion of the trial court's judgment which modified the grandparent visitation arrangement, and vacate those portions of the trial court's judgment finding the mother in contempt and ordering her to pay a portion of the grandparents' attorney's fees.

Factual and Procedural Background

The minor child at issue in this case was born on September 4, 2002. The minor child's biological parents are Jerry David Rochelle (“Mr. Rochelle”) and Beth McLanahan Copley (“Mrs. Copley”), who were married at the time of the minor child's birth. Norma Jean Lovlace (“Mrs. Lovlace”) and her former husband, Larry Rochelle, are the adoptive parents of the minor child's father, Mr. Rochelle. After Mrs. Lovlace and Larry Rochelle divorced, Mrs. Lovlace married Clayton O'Neal Lovlace in 1995. Mr. and Mrs. Lovlace (the “Lovlaces”) are asserting grandparent visitation rights in this appeal.

The procedural history of this dispute is complex. On April 20, 2004, the minor child's parents, Mr. Rochelle and Mrs. Copley, were divorced by a decree of the Chancery Court for Hickman County. The parenting plan incorporated into the final divorce decree designated Mrs. Copley as the minor child's primary residential parent. Because of Mr. Rochelle's history of drug addiction during the marriage, Mr. Rochelle received only supervised visitation with the minor child, with supervision to be provided by either Mrs. Copley, the Lovlaces, or Larry Rochelle.

On January 15, 2005, Mrs. Copley married Timothy Kevin Copley (“Mr. Copley”; collectively the “Copleys”). After their marriage, Mr. Rochelle, who was incarcerated in the Hickman County Jail, consented to Mr. Copley's adoption of the minor child. On January 27, 2006, however, Mr. Rochelle withdrew his consent to the adoption, and on December 5, 2006, Mr. Copley's adoption petition was dismissed.

The Lovlaces assert that, from the time of the child's birth until February 2006, they had been allowed regular contact and involvement with the minor child, although the parties dispute the extent of and the reasons for the Lovlaces' involvement. According to the Lovlaces, the Copleys began limiting the Lovlaces' contact with the minor child after Mr. Rochelle withdrew his consent to Mr. Copley's adoption.

On April 24, 2006, the Lovlaces filed in the Chancery Court for Hickman County a petition for grandparent visitation pursuant to Tennessee Code Annotated sections 36–6–306 and 36–6–307 (collectively “Grandparent Visitation Statute”).¹ The Lovlaces alleged that Mrs. Copley had terminated their substantial prior contact with the minor child in retaliation for Mr. Rochelle's withdrawal of his consent to Mr. Copley's adoption of the minor child and that this change would cause “irreparable injury and substantial harm” to the minor child. The Lovlaces also filed a motion for pendente lite relief, which they scheduled for a hearing the next day, April 25, 2006. On the date of the scheduled hearing, the parties reached an agreement as to all issues and announced that agreement to the court. Both parties were represented by counsel. On May 15, 2006, the Chancery Court for Hickman County entered an “Agreed Order” incorporating the parties' agreement. Neither party moved to modify or set aside the Agreed Order. Tenn. R. Civ. P. 59, 60.

The Agreed Order granted the Lovlaces grandparent visitation pursuant to the Grandparent Visitation Statute. The Lovlaces' visitation consisted of one Saturday per month, from 9:00 a.m. to 5:00 p.m., as well as an additional two hours per week during the “summer”—a term not defined in the Agreed Order. The Lovlaces were required to provide transportation for the visitation. The Agreed Order allowed Mrs. Copley to select the Saturday each month for the Lovlaces' visitation but also required her to provide the Lovlaces with five days advance notice of her selection. The Agreed Order also allowed Mrs. Copley to select the time for the additional two hours of visitation the Lovlaces received each week during the summer, but again, also required Mrs. Copley to provide the Lovlaces with thirty-six hours advance notice of her selection. The Agreed Order precluded the minor child from having any contact with Mr. Rochelle while he remained incarcerated, or at any other time, if his parental rights were terminated. The Agreed Order also specified that the Lovlaces' visitation time should be deducted from any visitation time Mr. Rochelle received under the parenting plan, if Mr. Rochelle exercised his visitation rights upon his release from incarceration and if his parental rights were not terminated. The Agreed Order also contemplated that the minor child's activities would increase over time, and as a result, required the Lovlaces to yield their visitation time as necessary to accommodate the minor child's activities. However, the Agreed Order directed Mrs. Copley to schedule the Lovlaces' Saturday visitation to avoid, to the extent possible, conflicts with the minor child's activities. Finally, the Agreed Order required the Copleys and the Lovlaces to cooperate and to endeavor in good faith to carry out the terms of their agreement. Monthly visitation under the Agreed Order began in May 2006.

According to the Lovlaces, problems arose almost immediately after entry of the Agreed Order. The Lovlaces assert that Mrs. Copley denied their visitation with the minor child, as well as Mr. Rochelle's visitation with her upon his release from jail. The Copleys, in contrast, assert that they afforded the Lovlaces the visitation required by the Agreed Order, as well as additional visitation.

On March 15, 2007, the Lovlaces filed a petition for contempt, alleging that the Copleys had violated the Agreed Order in various ways. The petition failed to specify whether the Lovlaces were seeking criminal or civil contempt, but the petition included a request for an award of attorney's fees. On May 23, 2007, the Lovlaces moved for a default judgment on the petition. On June 5, 2007, the Copleys responded to the motion for default judgment, and also moved to dismiss the contempt petition for failure to provide proper notice consistent with the requirements of due process. The Copleys also asked the trial court to require the Lovlaces to designate whether their petition sought criminal or civil contempt. On June 11, 2007, Mr. Copley moved to dismiss the contempt petition as to him, but the Copleys also submitted an answer to the Lovlaces' March 15, 2007 contempt petition. On June 26, 2007, the Lovlaces filed a response to Mr. Copley's motion to dismiss.

Approximately six months later, on January 2, 2008, the Lovlaces moved to amend their contempt petition to specify they were seeking civil, not criminal, contempt against the Copleys. On January 30, 2008, the trial court granted the Lovlaces' motion to amend, and on February 25, 2008, the Lovlaces filed their amended petition for contempt.

On March 9, 2009, the Lovlaces again moved to amend their petition for contempt, and on April 9, 2009, the trial court granted the motion. The Lovlaces' “Second Amended Petition for Contempt and to Modify” sought findings of civil contempt against Mrs. Copley for violations of the Agreed Order and for violations of a December 5, 2006 “Order Modifying/Clarifying Parenting Plan.” The December 5th order authorized the Lovlaces to provide transportation for Mr. Rochelle's visitation, which he received under the parenting plan incorporated into the final divorce decree. The December 5th order also required strict adherence to the terms of the parenting plan. The Lovlaces alleged approximately twenty-six separate instances of contempt against Mrs. Copley for conduct that occurred from 2006 to 2009 and sought an award of attorney's fees incurred in prosecuting the contempt petition. The Lovlaces also requested modification of the Agreed Order, seeking additional visitation with the minor child. The Lovlaces' Second Amended Petition also added Mr. Rochelle, the minor child's father, as a party defendant, for purposes of their ...