Osgood v. Osgood
| Decision Date | 18 February 2004 |
| Docket Number | No. 22884.,22884. |
| Citation | 676 N.W.2d 145,2004 SD 22 |
| Parties | Brenda Michelle OSGOOD, n/k/a Brenda Michelle Kron, Plaintiff and Appellant, v. William Robert OSGOOD, II., Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Angela Colbath, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
George J. Nelson, Rapid City, South Dakota, Attorney for defendant and appellee.
[¶ 1.] This is an appeal from a modification to paternal grandparent's (Grandparents) visitation. The trial court (1) upheld the original divorce court's grant of visitation with minor modifications; and (2) granted attorney's fees to Grandparents. Mother appeals, we affirm.
[¶ 2.] Mother Brenda Kron and father William Osgood were divorced on May 17, 1995. The child born to the marriage was approximately two years old at the time of the divorce. The parents were awarded joint legal custody with Mother as the primary custodian and William having visitation. Within a year, Mother filed a motion for an order to show cause, raising concerns about the child's care while he was with William. At the time, William was living with Grandparents. Grandparents and William responded by affidavit, requesting that the court grant Grandparents visitation rights. After a hearing, the court modified visitation to address Mother's concerns, but did not address grandparent visitation. Shortly thereafter, William went to prison.
[¶ 3.] While he was in prison, William filed a motion for an order to show cause why Grandparents could not have his visitation rights while he was incarcerated. Prior to the hearing, Mother agreed to visitation by way of affidavit which stated in part:
I[] offer visitation to the paternal grandparents on Saturday at 10:00 a.m. to Sunday at 10:00 a.m. the second and fourth weekends of each month. I will deliver and pick up my son for such visitation.
Judge Fitzgerald entered an order on December 4, 1995 granting Grandparents visitation. In awarding the Grandparents visitation, Judge Fitzgerald considered Mother's offer and ordered visitation in accordance with the schedule she requested and ordered that Grandparents were entitled to holiday visitation "to the extent possible as agreed between the parties."
[¶ 4.] William was released from prison in 1999 and he and Mother entered into a stipulation for visitation. Grandparent visitation was not addressed in that stipulation. However, the order from Judge Fitzgerald was still in force.
[¶ 5.] In summer 2001, William was sentenced to life in prison. During his trial and after his sentencing, it appears that Mother denied Grandparents visitation. On August 16, 2002, Grandparents brought a motion for an order to show cause seeking enforcement of the order and attorney fees as sanctions. Mother filed no responsive documents to the order or motion. After hearing arguments, Judge Delaney held that the December 1995 order was "fully valid and enforceable" and "entitled to full compliance and considered so unless or until formally modified by the court." He ordered that "neither [Mother] nor anyone allied with her shall violate the terms of the order." The issue of attorney fees was held in abeyance pending proof regarding the income and the financial status of the parties.
[¶ 6.] Approximately one month later, Mother's husband filed for adoption of the child. The adoption was granted, but only after Judge Kern made it clear to the parties that the order for visitation was not to be trifled with and that it was in the best interest of the child that Grandparents be allowed visitation.1 The court stated in part that it had informed adoptive father and Mother that it had the option of denying the petition for adoption, but chose not to exercise that option based on their agreement that they would do nothing to impede grandparent visitation. The court acknowledged the original visitation order and the fact that the order was "reaffirmed and enforced at a hearing held before Hon. John J. Delaney on Aug 26, 2002." The court then "expressly [found] that the best interests of [child] are that he continue to have regular visitation with his paternal grandparents and that the court ordered visitation shall continue." Finally, the court informed Mother and adoptive father of the penalties for disregarding a valid court order. The adoption order incorporated all of these findings and ordered that the Grandparents' visitation rights survived adoption and were entitled to full faith and credit.
[¶ 7.] Thereafter, the parties attempted to reach a visitation schedule by stipulation, but Mother remained unwilling to sign any of the seven stipulations drafted and forwarded by Grandparents. Mother concedes that she "briefly" denied visitation in 2002, but after consultation with counsel, reinstated visitation. After Mother rejected the seventh proposed stipulation, Grandparents filed another motion for relief and request for attorney's fees.
[¶ 8.] At the January 8, 2003 hearing, Judge Delaney reiterated that the original visitation order was valid, set up a specific visitation schedule for the parties, and awarded Grandparents $1,300 in attorney fees. Mother appeals and we affirm.
[¶ 9.] The standard of review for modification of visitation rights is abuse of discretion. Currey v. Currey, 2002 SD 98, ¶ 8, 650 N.W.2d 273, 276 (additional citations omitted). The award of attorney fees is also reviewed under an abuse of discretion standard. Kappenman v. Kappenman, 522 N.W.2d 199, 202 (S.D.1994) (citing Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985)).
[¶ 10.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WITH RESPECT TO GRANDPARENT VISITATION.
[¶ 11.] Mother asserts that the trial court abused its discretion in "granting Grandparents visitation rights." Citing SDCL 25-4-52, she argues that the trial court abused its discretion because "the record is completely void of any evidence offered by the grandparents concerning the effect visitation has on the parent-child relationship." SDCL 25-4-52 provides:
Mother concedes that it is in the child's best interest to have visitation with Grandparents, but argues that Grandparents had a burden to prove that the visitation would not "significantly interfere with the parent-child relationship." Mother asserts that the adoptive father is an over-the-road truck driver and spends considerable time away from the family. She argued at the hearing that since father was often away, she would like the parties to be able to swap visitation weekends should father come home on a weekend when the child would normally be at Grandparents' home. Other than this proposal, there was no evidence entered by either party regarding the effect of visitation on the parent-child relationship. Therefore, Mother argues, "the trial court abused its discretion in ordering the visitation schedule without requiring the grandparents to show by clear and convincing evidence that the ordered visitation does not interfere with the parent-child relationship."
[¶ 12.] Mother misapprehends the nature and the evidentiary requirements of this proceeding. The trial court was not faced with a request by Grandparents to grant visitation rights. Grandparents already had visitation rights pursuant to the 1995 order which was reaffirmed by two judges. The Due Process Clause prohibits government interference with the interest of parents in the care, custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2059-60, 147 L.Ed.2d 49, 56 (2000). However, in this case, parents' due process rights are not impeded by government interference. As in Currey, the original visitation was granted based on Mother's agreement and proposed visitation schedule, which was memorialized by Judge Fitzgerald's order. Currey, 2002 SD 98, 650 N.W.2d 273. This hearing was held because of the parties' inability to agree on scheduling. Frustrated by months of drafting fruitless stipulations, and attorney fees approaching $2,000.00, Grandparents noticed a hearing requesting that the court adopt the terms of the seventh proposed stipulation drafted by Grandparents and rejected by Mother. The question before this Court is not whether the trial court erred in granting visitation, but whether the trial court erred in scheduling visitation under a valid, preexisting visitation order.
[¶ 13.] The trial court held that the visitation schedule ordered by Judge Fitzgerald should be upheld, with minor modifications. Those modifications dealt primarily with issues of convenience for the parties and points of clarification to minimize disputes.2 The only provision that Mother specifically objects to is subsection (c) of the order, which provided in part:
The adoptive father [] has responsibility to arrange his own schedule to accommodate the grandparent visitation if he wishes to have it not conflict with the child visitation schedule.
At the hearing, Mother's counsel suggested that part of the order be that the parties agree to "working together ... [and] consider swapping weekends so the child [] could spend a weekend with dad [when he is home on a visitation weekend] and not lose any time with the grandparents." The trial court responded:
[T]hat's an imminently reasonable request assuming that there is—and I see no possibility on this record that...
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