Shelton v. Atkinson
| Decision Date | 24 June 2022 |
| Docket Number | 2021-CA-0397-MR |
| Parties | TRAVIS SHELTON AND CHELSEA SHELTON APPELLANTS v. RICHIE ATKINSON AND MALISSA ATKINSON APPELLEES |
| Court | Court of Appeals of Kentucky |
NOT TO BE PUBLISHED
BRIEF FOR APPELLANTS: Frank V. Phillips, Monticello, Kentucky.
BRIEF FOR APPELLEES: Lee Whittenburg Monticello, Kentucky.
BEFORE: CALDWELL, CETRULO, AND MAZE, JUDGES.
Travis and Chelsea Shelton (hereinafter "the Sheltons") appeal from the Wayne Family Court order granting hourly monthly visits with their children to Richie and Malissa Atkinson (hereafter "the Atkinsons" or "Chelsea's parents"), who are Chelsea Shelton's parents and the children's grandparents. Having reviewed the order of the family court, the proceedings below, and the briefs of the parties, we reverse and remand this matter to the family court for further proceedings consistent with this Opinion.
Chelsea and Travis Shelton have two children, a boy born in 2012, and a girl born in 2016. Chelsea's parents, Malissa and Richie Atkinson, were involved grandparents and enjoyed spending time with their daughter and their grandchildren. However, after several years, and after the relationship between the Sheltons and Chelsea's parents deteriorated, the Sheltons decided it was not in their children's best interests to allow Chelsea's parents to continue to see the children. The Sheltons stopped interacting with Chelsea's parents and the children did not see their grandparents any longer. In November of 2018, the Atkinsons filed the underlying action seeking visitation with their grandchildren. Following unsuccessful mediation and subsequent COVID-19 delays, a hearing on the motion was finally held in August of 2020.
The court took the matter under advisement and later issued an order granting the Atkinsons hourly monthly visitations with their grandchildren. The family court held that the Atkinsons had not ever placed the children in danger in any way. It was further found that the children could benefit from the love, support, and affection of two additional grandparents and extended maternal family members.
The court found the primary reason offered by the Sheltons in ceasing contact with Chelsea's parents was their concern with the Atkinsons' interference with their roles as parents, and the Sheltons' belief that the grandparents were overbearing and unwilling to step back and allow the Sheltons to parent as they saw fit. Both parents admitted in their testimony the possibility of resuming contact at some point, provided the Atkinsons would respect their boundaries as parents. However, both expressed doubts that the Atkinsons would ever do so. The court further found that, otherwise, the children's home and school environments with their parents are stable and appropriate.
The Sheltons filed a motion to alter, amend, or vacate and a second hearing was held. At the hearing, the Sheltons argued that the COVID-19 pandemic, the fact that their son had an autoimmune disorder, and that Richie Atkinson was a postal contractor who had contact with people throughout his day, all should have been considered by the court. The family court upheld the visitation order, amending the order only to require that visits occur out of doors when the weather permits such. It is from this order that the Sheltons appeal.
On review, we accept the findings of fact of the family court unless we find them to be clearly erroneous. Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986).
The review of the application of the law to the found facts is conducted de novo. Keeney v. Keeney, 223 S.W.3d 843 (Ky. App. 2007).
First we cannot ignore the deficiencies in the Appellants' brief; specifically, the failure to comply with the minimal requirements of Kentucky Rule of Civil Procedure ("CR") 76.12(4)(c)(4), in that the Statement of the Case contains not one citation to the record on appeal, though the Procedural History does contain citations to the record. Such is a failure to comply with the Civil Rules.
Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990).
Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
The rules of appellate procedure are necessary to the efficiency and fairness of the system of justice and are not mere formalities. We will ignore the deficiency and proceed with the review in this matter as the facts below are not voluminous and are not the result of multiple hearings or a weeks' long trial. But again, we caution counsel to be cognizant of the Civil Rules and endeavor to follow their requirements lest the outcome of a subsequent failure demands a different response from this Court.
As to the heart of this matter, there is perhaps no more fundamental constitutional right than that of a parent to raise his or her child in the manner that a parent believes is best.[1] Different parents with different life experiences, varying belief systems, and disparate basic, fundamental mores would likely not make the same parenting decisions; there is no "one size fits all." It is only when parenting decisions impact the safety, health, or welfare of the child that the government can and shall intervene.
The relationship between a child and a grandparent can be, and often is, the most nurturing and valued of all relationships. Parents must discipline their children, they must make their children do things that the children often do not want to do, they must guide their children in making choices that are not always fun or preferred. Such is the work of parenting. Grandparents, however, when not providing primary care for their grandchildren, often enjoy a relationship which is more about enjoyment of time spent together and less about character development. Such is the glory of grandparenting.
Unfortunately, sometimes parents and grandparents disagree or do not have a relationship between themselves which is without tumult. And, as is unfortunately often the case, when such occurs, the child loses out on an opportunity to have healthy relationships with both parents and grandparents. When parents and grandparents have contentious relationships, where it is not possible for those differences to be put aside in the interests of the child enjoying interactions with all who love him or her, a choice must be made. On this the law is clear - that choice belongs to the parents when they are found to be fit.
In Walker v. Blair, the Kentucky Supreme Court held that a fit parent is presumed to act in their child's best interest. Given the right of a person to parent one's own children as one sees fit, this presumption can only be overcome by clear and convincing evidence.[2] The family court correctly identified this standard in its order. In Walker, the Kentucky Supreme Court instructed that "[i]f the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation." 382 S.W.3d at 871. We must determine whether the family court's order pointed to evidence which overcame this presumption. We find it did not.
In Walker, the Court provided factors for courts to consider in determining whether the petitioning grandparent or grandparents had overcome this very strong presumption in favor of the wishes of the parent or parents.
A trial court can look at several factors to determine whether visitation is clearly in the child's best interest. The Vibbert court laid out many of these factors, including:
First, we acknowledge that a child's interests are best served when a child's parents enjoy a healthy, mutually respectful relationship between themselves, thus providing the child not only with stability, but an example for the future of a healthy adult relationship. See Obergefell v. Hodges, 576 U.S. 644, 668, 135 S.Ct. 2584, 2600, 192 L.Ed.2d 609 (2015).[3] We note that the facts establish that the Sheltons only excluded the Atkinsons after a tumultuous time in their marriage and because they believed that the Atkinsons would add to that tumult should they be involved in the family.
In Massie v. Navy, the Kentucky Supreme Court clearly indicated that the trial court should consider the Walker factors relevant to the case.[4] We find that the reason for the estrangement here - the Sheltons' belief that the involvement of the Atkinsons would have a negative effect on their family unit by potentially bringing harm to the marriage and interference with the parenting decisions of the Sheltons - was not just a relevant factor in the decision, but was the relevant factor for the court to consider and its failure to give due consideration to the parents' judgment on this matter...
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