Pier v. Bolles
| Decision Date | 11 June 1999 |
| Docket Number | No. S-98-900.,S-98-900. |
| Citation | 257 Neb. 120,596 N.W.2d 1 |
| Parties | Robert PIER and Dona Jo Pier, Appellees, v. Stephanie A. BOLLES, Appellant, and Brett E. Pier, Appellee. |
| Court | Nebraska Supreme Court |
Gregory C. Damman, Seward, and Joseph H. Murray, of Germer, Murray & Johnson, Hebron, for appellant.
Mary Morgan Cote, Grand Island, for appellees Robert Pier and Dona Jo Pier.
Stephanie A. Bolles, formerly Stephanie A. Pier, the natural mother of a minor child named "Dennie LeRoy Pier" at birth, appeals from the order of the district court for Hall County denying her petition for modification, in which Stephanie sought to terminate the grandparent visitation of Robert Pier and Dona Jo Pier, husband and wife, the paternal grandparents of Dennie. We affirm in part and reverse in part the order of the district court, and remand the cause for proceedings consistent with this opinion.
Stephanie and Brett E. Pier were married on May 4, 1990. The couple had one child during their marriage Dennie, who was born on March 11, 1991. On December 14, 1992, Stephanie and Brett divorced. Pursuant to the district court's decree of dissolution of marriage, custody of Dennie was granted to Stephanie. The decree also granted grandparent visitation to Brett's parents, Robert and Dona Jo. The decree provided, however, that Stephanie could unilaterally terminate any and all visitation with the grandparents if Brett violated his criminal probation order or was charged with a criminal offense within 2 years after the entry of the decree. In September 1994, the grandparents' visitation was terminated, evidently due to the occurrence of one of these events.
On October 20, 1994, Robert and Dona Jo initiated a new action in the district court, seeking grandparent visitation with Dennie. This appeal arises from this separate action. The grandparents were evidently granted temporary visitation in the course of the new action. On May 26, 1995, the district court awarded the grandparents visitation with Dennie. It is this visitation order which was the subject of Stephanie's petition to modify, the denial of which is before this court.
In August 1993, Stephanie married Martin Bolles, who became Dennie's stepfather. On October 20, 1995, Brett voluntarily relinquished his parental rights to the child and consented to Dennie's adoption by Martin. In accordance with state law, on February 2, 1996, the district court, having jurisdiction over Stephanie and Brett's divorce, entered an order consenting to the county court's adoption proceedings. Thereafter, on April 11, Martin adopted Dennie.
On June 6, 1997, Stephanie moved to modify the May 1995 grandparent visitation order, seeking to terminate Robert and Dona Jo's visitation with Dennie due to Brett's relinquishment of his parental rights and the adoption of Dennie by Martin. Modification of an existing grandparent visitation order is permitted under the grandparent visitation statutes, Neb. Rev.Stat. §§ 43-1801 through 43-1803 (Reissue 1998), upon a showing that there has been a material change in circumstances and that modification would serve the best interests of the child. See § 43-1802(3).
The trial court conducted a hearing on July 31, 1998. The evidence consisted of the following: Stephanie and Brett's divorce decree; the May 26, 1995, order granting Robert and Dona Jo visitation with Dennie; Brett's relinquishment of parental rights and consent to adoption; the district court's order consenting to the adoption; the adoption decree; Dennie's birth certificate reissued after his adoption by Martin showing Dennie's name as "Dennie LeRoy Bolles"; a one-page, two-paragraph affidavit from Dona Jo stating that she has "had a close, loving relationship with him [Dennie]" and has exercised regular visitation with him; and the parties' trial stipulation, agreeing to the submission of Stephanie's petition on the basis of the above evidence. Stephanie specifically stipulated that she "offer[s] no evidence on the issue of whether or not the requested modification and termination of grandparent visitation rights is in the best interests of" Dennie.
In a written order entered August 10, 1998, the district court denied Stephanie's petition for modification. The order provided that "the prior order of this Court granting grandparent visitation ... is not automatically terminated because of the adoption of the minor child by the step-father" and it is "in the best interests of the minor child to maintain [Robert and Dona Jo's] grandparent visitation rights." This appeal followed.
On appeal, Stephanie has assigned one error in which she claims that based upon Brett's relinquishment of his parental rights and the subsequent adoption of Dennie by Martin, the trial court erred in denying her motion to modify Robert and Dona Jo's grandparent visitation.
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion, irrespective of the decision made by the court below. In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999); State ex rel. Wood v. Fisher Foods, 254 Neb. 982, 581 N.W.2d 409 (1998). Factual determinations concerning grandparent visitation are initially entrusted to the discretion of the trial judge, whose determinations, on appeal, will be reviewed de novo on the record and affirmed in the absence of abuse of the trial judge's discretion. Morris v. Corzatt, 255 Neb. 182, 583 N.W.2d 26 (1998).
The instant appeal presents the issue of whether under Nebraska law paternal grandparent visitation with a child, granted following a divorce proceeding, is automatically terminated by the father's voluntary relinquishment of parental rights and the subsequent adoption of the child by the stepfather. In Nebraska, grandparent visitation is a creature of statute. See In re Interest of Ditter, 212 Neb. 855, 326 N.W.2d 675 (1982). See, also, In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473 (1998). At common law in Nebraska and elsewhere, Ex Parte Bronstein, 434 So.2d 780, 782 (Ala. 1983). Recognizing the important role that grandparents can play in a child's life, every state adopted a statutory scheme permitting grandparent visitation under varying circumstances. 3 Family Law and Practice § 32.09[7][b][ii] (Arnold H. Rutkin ed., 1999). The circumstances under which grandparents can seek and retain visitation differ widely from state to state. Id.
Nebraska was the last state in the nation to grant grandparent visitation. Judiciary Committee Hearing, L.B. 105, 89th Leg., 1st Sess. 91 (Mar. 25, 1985). In 1986, the grandparent visitation statutes, 1986 Neb.Laws, L.B. 105, were enacted by the Nebraska Legislature, setting forth the grandparents' statutory visitation. Under the grandparent visitation statutes, a grandparent may seek visitation under the following circumstances:
A grandparent may seek visitation with his or her minor grandchild if:
§ 43-1802(1). Robert and Dona Jo's grandparent visitation order at issue in this case was entered pursuant to § 43-1802(1)(b) after the divorce of Stephanie and Brett.
In order for a trial court to grant visitation in the first instance, evidence must be adduced to enable the court to find "by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship." § 43-1802(2) Once an order has been entered granting or denying grandparent visitation, § 43-1802(3) provides that the visitation order may be modified by the court "upon a showing that there has been a material change in circumstances which justifies such modification and that the modification would serve the best interests of the child." As noted above, the proceedings herein were conducted pursuant to § 43-1802(3).
Stephanie argues that Brett's voluntary relinquishment of his parental rights and consent to Dennie's adoption by Martin terminates, by operation of law, Robert and Dona Jo's grandparent visitation previously granted by court order. Stephanie relies on the adoption statutes in support of her argument. Robert and Dona Jo argue that their grandparent visitation survived Dennie's adoption and that the controlling statute in this case is the modification provision found at § 43-1802(3). We agree with Robert and Dona Jo.
Pursuant to § 43-111, after an adoption occurs, "the natural parents of the adopted child shall be relieved of all parental duties toward and all...
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