Stacy v. Ross, No. 1999-CA-00579-SCT
| Decision Date | 31 October 2001 |
| Docket Number | No. 1999-CA-00579-SCT, No. 1999-CA-01725-SCT. |
| Citation | 798 So.2d 1275 |
| Parties | Delaine STACY and Sandy R. Stacy v. Williard Kenneth ROSS and Sue M. Ross. |
| Court | Mississippi Supreme Court |
Walter E. Wood, Ridgeland, Attorney for Appellants.
Phil R. Hinton, Corinth, Attorney for Appellees.
EN BANC.
¶ 1. Here we are faced with a question concerning grandparent visitation where there is a dispute between the natural parents whose marriage is intact and who have custody, and the maternal grandparents. We conclude that the trial court applied an erroneous standard in deciding the issue. We reverse the judgment and render as to visitation, affirm as to contempt and remand for determination of attorney's fees to the parents.
¶ 2. On October 29, 1997, William Kenneth Ross and Sue Ross ("Grandparents"), the natural parents of Sandy Stacy, brought action in Alcorn County Chancery Court for grandparent visitation with Kevin Stacy, age 7 and the natural child of Delaine Stacy and Sandy Stacy ("Parents"). The chancery court granted visitation rights to the grandparents after finding there was a "deteriorated relationship" between the grandparents and the parents.
¶ 3. Kenneth Ross, Kevin's grandfather, suffered several medical problems after being severely burned in 1962. He spent a total of 105 days in the hospital and within two years after returning to work, twice underwent surgery for ruptured disks and also underwent a heart bypass surgery. After Kenneth began drawing his social security disability, he stayed at home taking care of the house, a small farm and horses that he kept there.
¶ 4. The Rosses' daughter, Sandy, was married to Delaine Stacy and living with him in Jackson, Mississippi, at the time that their son Kevin was born. When Kevin was approximately six weeks old, the Stacys moved to her parents' farm and built a home on approximately two acres of land given them by Sue and Kenneth. From then, until Kevin was six years of age, the Stacys lived next door to the Rosses. The remaining facts are in dispute.
¶ 5. Sandy described having only a limited relationship with her parents, leaving home at the age of 16 due to many years of great conflicts. Her parents, she said, insisted that she and her husband build a house on their property and though concerned that the arrangement would lead to trouble in the future, as she knew her parents to be forceful, controlling, and extremely dominating when she was a child, Sandy agreed.
¶ 6. From 1992 until 1997, the Stacys lived close to the Rosses, and Kevin spent a good deal of time with his grandparents, especially with his grandfather Kenneth. Over the years, the Rosses helped provide for Kevin, buying him clothes and toys. Several times a week, Kenneth says he picked up Kevin from kindergarten and when his parents were out of town, they would keep Kevin. The Rosses argue they put $3,500.00 in a savings account for Kevin in the names of Sandy and Delaine, but the Stacys deny there was any savings account.
¶ 7. It is unnecessary to discuss the different versions of the details of the deteriorated relationship between the parents and the grandparents. It should suffice to say that the deterioration resulted in at least one physical altercation. The altercation resulted in charges and counter charges of assault which were later dropped. Eventually, the parents denied the grandparents access to the child, and this action ensued.
¶ 8. On September 2, 1998, after a hearing on the matter, the court entered an interim order finding the conflict so severe that it placed the child in the middle. It also found that the grandparents had established a viable relationship with Kevin pursuant to the "appropriate statutes" and that the primary goal was to reestablish visitation with the grandparents. Because it determined the relationship between the Rosses and the Stacys had deteriorated, however, and the conflict was so severe that it placed the minor child in the middle, such was not possible without remedial steps.
¶ 9. In the first of three judgments addressing visitation, the court ordered all parties to participate in a court-established counseling program with a court-appointed counselor. In an order dated December 21 and filed on January 11, 1999, the court ordered the parties to cease all conflicts from past disagreements and the Stacys to make Kevin available for visitation with the Rosses, under the supervision of the counselor. The court held all other matters in abeyance and provided for further reports and review at any time prior to March 5, 1999. It did not find visitation was in Kevin's best interest nor did it find that the Stacys had unreasonably withheld visitation.
¶ 10. On February 23, 1999, the court entered a new judgment setting out unsupervised visitation for the Rosses. This judgment did not indicate that further action of the court was contemplated. On March 24, 1999, the Stacys filed a notice of appeal from that judgment.
¶ 11. In the meantime, however, the Stacys did not abide by the court's unsupervised judgment and the Rosses moved to enforce the visitation schedule, complaining of the Stacys' presence during visitations with Kevin. The Stacys moved for relief under Miss. R. Civ. P. 60 complaining that full compliance was not possible due to Sandy Stacy's high-risk pregnancy and asserting further that the judgment was void because the chancellor had not found that grandparent visitation was in Kevin's best interest.
¶ 12. On June 23,1999, the chancellor entered judgment denying the Stacys' motion and held them in contempt of court. The chancellor further found the Stacys were unreasonably denying visitation to the Rosses with Kevin, but made no finding that visitation with the Rosses was in Kevin's best interest. On June 23, 1999, the Rosses moved for contempt against the Stacys, asserting they were again denied visitation scheduled for June 19-21, 1999. The Stacys responded that they had not received an executed judgment from which the contempt was alleged until July 7, 1999,1 after the visitation was to occur. They filed a motion to stay and charged that the Grandparents Visitation Rights Act, Miss.Code Ann. §§ 93-16-1 to -7 (1994), was unconstitutional. The court heard testimony on the matter and rendered judgment against the Stacys finding them in contempt and denying them the requested relief on September 17, 1999. From that judgment, the Stacys file a second appeal which has been consolidated with the first.
¶ 13. A limited standard of review is employed by this Court in reviewing decisions of a chancellor. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). Findings will not be disturbed on review unless the chancellor abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss. 1992). The Court reviews questions of law, however, under a de novo standard. Zeman v. Stanford, 789 So.2d 798, 802 (Miss.2001).
¶ 14. The Rosses assert that the Stacys are procedurally barred from raising the constitutionality of our grandparents visitation law. We pretermit discussion of the procedural bar and address the statute with a view toward construing it in a manner which comports with its intent and the Constitution. We also reject the Rosses' contention that the merits of the determination that visitation should be ordered is not properly before the Court. Their contention is that the Stacys should have appealed from the September 2, 1998, order. That order however was clearly an interim order in both style and content. The order entered on January 11, 1999, while styled as a "judgment of the court" was likewise interim in nature. This Court has jurisdiction of the merits of the visitation decision.
¶ 15. The Stacys argue the Mississippi Grandparents' Visitation Act is unconstitutional as written because it allows the trial court "to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision filed a visitation petition, based solely on the judge's determination of the child's best interest in violation of the Fourteenth Amendment's Due Process Clause," citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2056, 147 L.Ed.2d 49 (2000). We disagree.
¶ 16. In Troxel the U.S. Supreme Court held that Washington Rev.Code, § 26.10.160(3) was unconstitutional because it permitted "any person" to petition for visitation rights "at any time" and authorizes state superior courts to grant such rights whenever visitation may serve a child's best interest. The Washington statute formerly read in relevant part:
Washington Rev.Code § 26.10.160(3).
¶ 17. Unlike the "breathtakingly broad" "any person" language in Washington's statute, as characterized by Justice O'Connor writing for the majority in Troxel, 120 S.Ct. at 2061, Mississippi Grandparents' Visitation Act expressly permits state courts to grant visitation to grandparents. But before doing so, the court must find that (1) the grandparent has established a viable relationship with the grandchild, (2) that the custodial parents have unreasonably denied grandparent visitation, and (3) visitation between the grandparent and the grandchild would be in the best interest of the child. Miss.Code Ann. § 93-16-1(2). The Washington statute did not enumerate the same or even similar limitations and, significantly, the Supreme Court distinguished Mississippi as being among those states which expressly provide limitations (that Mississippi courts may not award visitation unless a parent has unreasonably...
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