Schillaci v. Gentry (Ex parte Gentry)

• Citation: 238 So.3d 66
• Decision Date: 05 May 2017
• Docket Number: 2160300
• Parties: EX PARTE Michael GENTRY (In re: Nancy Schillaci and Ben Schillaci v. Michael Gentry)
• Court: Alabama Court of Civil Appeals

238 So.3d 66

EX PARTE Michael GENTRY

(In re: Nancy Schillaci and Ben Schillaci

v.Michael Gentry)

2160300

Court of Civil Appeals of Alabama.

May 5, 2017

William K. Bradford and Amber L. Ladner of Bradford Ladner, LLP, Mountain Brook, for petitioner.

Wendy Brooks Crew and Christina Vice Vineyard of Crew Gentle Law, P.C., Birmingham, for respondents Nancy Schillaci and Ben Schillaci.

Luther Strange and Steve Marshall, attys. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lane, asst. atty. gen., Department of Human Resources, for the respondent, attorney general.

THOMAS, Judge.

This is the second time Michael Gentry ("the father") has sought review of an interlocutory order entered by the Jefferson Circuit Court ("the trial court") in the grandparent-visitation action filed by Nancy Schillaci ("the maternal grandmother") and Ben Schillaci ("the maternal stepgrandfather"). See Ex parte Gentry, 228 So.3d 1016 (Ala. Civ. App. 2017). The procedural history was set out in Ex parte Gentry, 228 So.3d at 1018–19 :

"The father and his wife, Whitney Gentry, who died in February 2014, were the parents of three children. In August 2016, the maternal grandmother and the maternal stepgrandfather filed a complaint in the trial court seeking an award of visitation with the children pursuant to Ala. Code 1975, § 30–3–4.2, which became effective on August 1, 2016. See Act No. 2016–362, § 5, Ala. Acts 2016. That same day, [Eddie Raymond Gentry (‘the paternal grandfather’) and Robin Lynne Gentry (‘the paternal stepgrandmother’) ] filed a similar complaint.¹ The trial court consolidated the actions and appointed a guardian ad litem for the children.

"In September 2016, the father moved to dismiss the actions. One of the arguments the father asserted in his motion, as amended, was that the maternal stepgrandfather and the paternal stepgrandmother should be dismissed as parties to their respective actions because, he contended, neither is a ‘grandparent’ as that term is defined in § 30–3–4.2(a)(1) ; therefore, the father argued, they lacked ‘standing’ to bring the actions under § 30–3–4.2(b). The trial court denied the father's motion by order entered on October 3, 2016."

In his September 2016 motion to dismiss, the father also asserted that the Grandparent Visitation Act, codified at Ala. Code 1975, § 30–3–4.2 ("the GVA"), was both unconstitutional on its face and as applied. The certificate of service on the father's motion to dismiss listed counsel for the maternal grandmother and the maternal stepgrandfather, counsel for the paternal grandfather and the paternal stepgrandmother, and the guardian ad litem for the children. Nothing in the materials before this court on either of the father's mandamus petitions² indicate that the father had served the attorney general with his constitutional challenge to § 30–3–4.2 at that time.

The maternal grandmother and the maternal stepgrandfather had filed a motion seeking temporary visitation with the children. On October 3, 2016, the trial court entered an order stating that the parties had reached an agreement regarding temporary visitation. The order stated that, until the parties submitted a jointly proposed order with other specified visitation arrangements, the maternal grandmother and the maternal stepgrandfather would have visitation with the children for three hours every other Sunday afternoon or six hours every two weeks.

The father answered the maternal grandmother and the maternal stepgrandfather's complaint on October 25, 2016. He also asserted a counterclaim in which he sought a judgment declaring the GVA unconstitutional. The certificate of service of the father's answer and counterclaim indicates that he had sent a copy of the pleading to the attorney general via certified mail.

The trial court held a hearing on November 16, 2016, at which it heard arguments of counsel and, with the consent of the parties, held an in camera interview outside the presence of the parties and their attorneys with I.G. ("the eldest child"). The trial court specifically stated that it would not place the eldest child under oath.

The trial court held an evidentiary hearing on pendente lite visitation on December 2, 2016. The father, the maternal grandmother, and the maternal stepgrandfather testified. The trial court found in its December 23, 2016, order that the testimony established that the maternal grandmother had cared for the children, primarily in the father's home, at least two days a week during most weeks between August 2013 and January 2015. The court determined that the father had informed the maternal grandmother in late December 2014 or early January 2015 that he had made other arrangements for the care of the children. The trial court found that the maternal grandmother had seen the children only six times between January 2015 and the filing of the complaint in August 2016.

Based on those findings, the trial court concluded that the maternal grandmother had proven that she had "established a significant and viable relationship with the children in two ways" because she had established that she had been "the caregiver to the children on a regular basis for at least six consecutive months within the three years preceding the filing" of her complaint, see §§ 30–3–4.2(d)(1) a. and 30–3–4.2(o )(2), and because she had "had frequent or regular contact with the children for at least 12 consecutive months ... within the three years preceding the filing of" her complaint. See §§ 30–3–4.2(d)(1) c. and 30–3–4.2(o )(4). The trial court then concluded that visitation with the maternal grandmother and the maternal stepgrandfather was in the best interest of the children, based on testimony and photographs indicating that the younger two children were happy during visits with the maternal grandmother and the maternal stepgrandfather. The trial court also noted that the children's guardian ad litem had stated his opinion that visitation would be in the best interest of the two younger children and that the guardian ad litem had stated that denial of that visitation "may[,] has been, or will be likely harmful to that relationship and the children." The trial court awarded pendente lite visitation to the maternal grandmother and the maternal stepgrandfather for five hours on alternating Sundays each month and, subject to further recommendations of the guardian ad litem or an agreement of the parties, for "either ... a substantial period every day for one week during the summer" or, "in addition to the regular monthly visits, the maternal grandparents shall have at least six (6) additional visits during the summer of at least five (5) hours each on the first and second Thursdays of the months of June, July, and August."

In the December 23, 2016, order, the trial court set the matter for a trial to be held on August 7, 2017. The trial court also stated:

"For purposes of this Order, the Court finds that the most recently Amended version of [the GVA], which became effective on August 1, 2016, to be constitutional. The father's Motion to Dismiss was based on the argument that the [GVA] as amended is not constitutional. The Court pretermits further analysis of this issue."

The father filed this petition for the writ of mandamus on February 3, 2017. In his petition, the father argues that the trial court's pendente lite grandparent-visitation order should be set aside because, he contends, the trial court failed to accord "special weight to the fundamental right of a fit parent to decide which associations are in the best interest of his or her child," as required by § 30–3–4.2(o ). He also complains that the trial court "conflates two requirements of the statute into one," that the trial court's finding that the maternal grandmother was "the caregiver" under § 30–3–4.2(o )(2) is not supported by the evidence presented, that the trial court erred by relying on "undisclosed nontestimonial information" from the guardian ad litem, and that the evidence does not support the conclusion that visitation is in the best interest of the children. In addition, the father contends that the trial court erred in awarding visitation to the maternal stepgrandfather, who, he says, is not entitled to visitation under the GVA because he is not a "grandparent" based on the definition set out in § 30–3–4.2(a)(1). Finally, the father argues that § 30–3–4.2(o ) is unconstitutional, both on its face and as applied in the present case.

We first consider the father's argument that the trial court erred in awarding pendente lite grandparent visitation to the maternal stepgrandfather because he does not fall within the definition of "grandparent" in § 30–3–4.2(a)(1).³ Section 30–3–4.2(a)(1) defines "grandparent" as "[t]he parent of a parent, whether the relationship is created biologically or by adoption." The language is plain, and we must "interpret [it] to mean exactly what it says." IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992). A stepgrandfather is not the biological or adoptive parent of either of the children's parents. Thus, the maternal stepgrandfather is not within the class of persons who may seek grandparent visitation under the GVA. To the extent that the trial court awarded the maternal stepgrandfather pendente lite visitation, it erred.

We next turn to the father's constitutional arguments. The attorney general has appeared as a respondent and argues that the trial court was, and this court is, without jurisdiction to consider the facial constitutionality of the GVA, or, more specifically, § 30–3–4.2(o ), because the attorney general was not properly served with the father's constitutional challenge, as required by Ala. Code 1975, § 6–6–227, which states, in pertinent part, that, "if the statute ... is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard." See Tucker v. Personnel Bd. of City of Dothan, 644...