Robinson v. Ford-Robinson

• Decision Date: 27 October 2004
• Docket Number: No. CA 04-370.,CA 04-370.
• Citation: 196 S.W.3d 503
• Parties: Gerald ROBINSON, Appellant v. Karen FORD-ROBINSON, Appellee.
• Court: Arkansas Court of Appeals

196 S.W.3d 503

Gerald ROBINSON, Appellant v. Karen FORD-ROBINSON, Appellee.

No. CA 04-370.

Court of Appeals of Arkansas, Division III.

October 27, 2004.

Appeal from the Circuit Court, Pulaski County, Mackie M. Pierce, J Richard Worsham, Little Rock, for appellant.

Robert D. Wills, Jr., Conway, for appellee.

JOHN F. STROUD, JR., Chief Judge.

Appellant, Gerald Robinson, and appellee, Karen Ford-Robinson, were married January 28, 2000, separated on May 7, 2003, and a decree of divorce was entered on November 4, 2003. The parties had lived together since August 1997. Gerald had custody of his son, Austin, who was eighteen to twenty months old at the time Karen moved in with them; Austin's birth-mother's parental rights had been terminated by a divorce decree entered in the State of New York. At the time she filed for divorce, Karen initially alleged that Gerald was an unfit parent and asked that she be awarded custody of Austin; in a second amended complaint, she subsequently revised that request and instead asked that she be awarded visitation with Austin because of the mother-child relationship that she and Austin had developed since August 1997 and because it would be in Austin's best interest for her to have visitation with him. The trial judge found that Karen had stood in loco parentis to Austin since he was eighteen months old, that he recognized her as his mother, and that it would be in Austin's best interest to have visitation with Karen. Gerald filed a motion for reconsideration, which was deemed denied; he then filed his notice of appeal. On appeal, Gerald contends that the trial judge erred in granting Karen visitation. Specifically, he argues that the trial court erred in relying on Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), and Golden v. Golden, 57 Ark.App. 143, 942 S.W.2d 282 (1997), because those rulings were overturned by Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). Alternatively, he argues that if this court holds that Golden and Rawlins were not overturned, then Karen "failed to meet the standard of proof set forth in Rawlins." We disagree with his arguments and affirm the trial court's award of visitation to Karen.

At trial, Gerald characterized Karen's and Austin's relationship as one of "buddies." He said that he and Karen had discussed her being Austin's mother, and he told her that adoption was not an option because Austin had a biological mother, Lisa Marie Robinson, although her parental rights had been terminated in their divorce. However, he admitted that he had described Karen's relationship with Austin as that of "mother" in e-mails and conversations that he had over the years. He acknowledged that he had executed powers of attorney for Karen so that she could get medical care for Austin when he was away, both prior to and during their marriage, but he said that was not unusual because he was in the military. Gerald objected to Karen having any contact with Austin after the divorce because he said that she had told him one of the reasons she left was because she was a nanny, not a wife or mother. He also said that since she left, Austin had not asked for her or asked to spend any time with her, and that Austin had never cried for Karen. Gerald said that he did not want to confuse Austin because Karen had been seeing a man from work. However, he admitted that he was also seeing someone, and that he had a sexual relationship with her.

Gerald said that Karen met him at the door when he came home from temporary duty and told him that she had moved out of their residence. Prior to telling Gerald that she was leaving, Karen had taken Austin over to her new apartment without Gerald's knowledge and told him to pick out which room he wanted to be his room.

Gerald testified that he believed that Karen having visitation with Austin "would interfere with someone else playing a role model" in his life. He said that if Austin's biological mother wanted to be in his life again, he thought it would be her right to have some sort of contact. He also said that he hoped that he would meet someone else to marry that Austin could call mother, and he had concerns about there being "too many mothers" in Austin's life.

Karen testified that she came into Austin's life when he was approximately eighteen months old, that she had been his mother for almost the last seven years, and that she loved him as if she was his mother and had loved him since the day she "laid eyes on him." She described their relationship as "great," and said that Austin had called her "Mommy" since he was a little over two years old. She stated that Austin did not know that she was not his birth mother until he was in first grade. She said that Austin was a sweet, lovable child, and that she wanted to continue to have some type of relationship with him although she had been very unhappy in her marriage to Gerald. She testified that she was not willing to try to prove that Gerald was an unfit parent.

In explaining her relationship with Austin, Karen said that she loved him and cared for him; that she went to all of his parent-teacher conferences, games, and school functions; and that she was a good mother and role model for him. She said that she wanted visitation because she loved Austin, they had a good relationship, and she felt that it would be in his best interest for them to be able to continue that relationship.

Karen admitted that she took Austin to her new residence and let him pick out a room before she told Gerald that she was moving out; however, she explained that she did not want Austin to think that she had "skipped town or abandoned him." She agreed that it might be confusing for Austin to possibly end up having three mothers, but she also said that she thought it would be confusing for him not to have the person whom he called mother for over six years in his life anymore. She said that Gerald had told her that they were a package deal—if she did not want him then she could not have Austin.

Tommye Jo Ford, Karen's mother, testified that Karen and Austin had a very close relationship and that Karen had immediately fallen in love with Austin when she met him. She said that the two of them really bonded as mother and son. She stated that Austin began referring to Karen very early in the relationship as Mommy. She said that Karen was Austin's mother in every sense of the word for over six years, and that she believed that Austin would benefit from any visitation he had with Karen. She said that Austin was one of her grandchildren. She stated that she believed Gerald's resistance to Austin seeing her or Karen came from the fact that his mother had remarried somewhere around sixteen times, from what she had been told. However, she said that she was not saying that Gerald was an unfit father; in fact, she stated that she had nothing negative to say about Gerald's parenting ability.

Martha Wiley, an assistant director at Sylvan Hills Learning Center, testified that Austin was enrolled at the center and was a happy kid. She said that she did not know that Karen was his mother until Karen showed up at the center with cookies after she and Gerald had divorced. Wiley said that she had never seen Karen before, that Austin was not enthused to see her, and that he did not accept the cookies.

Linda Johnson, Gerald's mother, testified that Austin was worried about his daddy being by himself and did not understand why his mother was "doing this" to his daddy. She said that she had never seen Austin cry because he missed his mother.

Serena Dempsey, Austin's babysitter once or twice a month, said that she had not seen him cry because he missed his mother. She said that he did not ask about Karen, and once, when she asked him if he missed Karen, he told her, "no, not really."

Domestic relations cases are reviewed de novo, and the trial judge's findings will not be disturbed unless they are clearly against the preponderance of the evidence. Golden v. Golden, 57 Ark.App. 143, 942 S.W.2d 282 (1997). On appeal, Gerald argues that the trial court erred in granting Karen visitation with Austin. Specifically, he argues that the trial court erred in relying on Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), and Golden v. Golden, supra, because those rulings were overturned by Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). We disagree.

We hold that the present case is distinguishable from Troxel and Linder, both of which concern grandparent visitation. Specifically, Troxel involved a statute from the State of Washington that allowed any person to petition the court for visitation rights at any time, and a trial court could grant visitation when it was determined that such visitation would serve the best interest of the child. In that case, the paternal grandparents petitioned for visitation with their two granddaughters after their son's death and after the girls' mother limited their visitation to one daytime visit per month. The superior court granted grandparent visitation one weekend per month, one week during the summer, and four hours on each of the grandparent's birthdays. The Washington Court of Appeals reversed the visitation order and dismissed the case, and the Washington Supreme Court affirmed that decision. The United States Supreme Court granted certiorari and affirmed the denial of visitation in a plurality opinion.

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