Ward v. Dibble
| Decision Date | 06 December 1996 |
| Docket Number | No. 95-2480,95-2480 |
| Citation | 683 So.2d 666 |
| Parties | 21 Fla. L. Weekly D2587 Robert William WARD, Appellant, v. Shirley F. DIBBLE, Appellee. |
| Court | Florida District Court of Appeals |
Gary G. Graham, Inverness, for Appellant.
Charles P. Vaughn, Inverness, for Appellee.
Robert Ward ["the father"], a widower and the father of Tina Ward and Robert Ward, Jr. ["the children"], appeals an order of the circuit court awarding Shirley Dibble ["the grandmother"] visitation with his children. The father asserts that visitation was not shown to be in the best interests of the children, who are now 16 and 15 years old. The father also argues that the Florida statute 1 which authorizes the courts, upon petition, to order children to visit with their grandparents, over the objections of a parent, is unconstitutional. 2 On April 28, 1995, the grandmother filed a petition in the circuit court for an order allowing her specified visitation with the two minor children of her deceased daughter, Carol ("the mother"). At the hearing on the visitation petition, the father's counsel explained to the court that the father did not object to visitation by the grandmother at his home in Florida, but he did object to sending the children to the grandmother's home in New York, where they would also visit with other relatives besides the grandmother. The grandmother's counsel responded,
The evidence revealed that the grandmother and her husband 3 lived on a farm in midstate New York. She was retired, and most of their income was derived from his shearing sheep. The father and the mother, along with their children, formerly lived near the grandmother in New York. In 1986, the mother was killed in a car accident. Following this tragedy, the father and the children continued to live in New York until 1989, when the family moved to Florida. The father now works in Inverness.
There was no testimony concerning the grandmother's relationship with the children prior to the mother's death. She characterized her relationship with the children prior to their move to Florida as "fine." Once a year after their mother's death and before the move, the children would stay with the grandmother's family for a weekend. The grandmother stated that during that same period, the children were baby-sat at her house by her daughter Loretta. She explained that she still loved the children and wanted to visit with them. She testified, however, that she could not afford to travel to Florida to do so.
The grandmother acknowledged that she and the father had a poor relationship. The father testified that he did not want the children to go to New York with their grandmother because he was afraid that she would take them to live with her relatives in another state. He explained that, in 1983, he had been working as a truck driver and spent several days at a time away from home. He claimed that the mother was coaxed by her family into leaving him, and that she took the children and went to Florida without telling him. She stayed in Florida briefly, and then made her way to Montana, where she had relatives. Legal process instituted by the father returned the mother and the children to New York some five months after their disappearance. The father testified that during the incident the grandmother told him and his attorney that she would not allow the mother to bring the children back to New York.
The father also expressed concern over an incident in 1983 when he drove to the grandmother's property to look for his wife and the grandmother approached him with a gun. The grandmother testified that the mother did not want to see him. She admitted to carrying the weapon, but claimed that she pointed it only at the ground. Her attorney acknowledged to the court that she had threatened to shoot the father's tires.
The father explained that he raised the children alone during the nine years since the mother died. He testified that after his wife's death, he often asked the grandmother and her family to baby-sit the children, but they were always too busy to help. According to him, Loretta would watch the children only about once every other month.
The father declared that he did not like the grandmother's family and that he did not trust them. He believed that Elpha Dibble and Bruce Dibble were part of a group of people that took the children to Florida in 1983, and he did not want the children to see them. He also accused Becky Dibble, the children's maternal aunt, of instigating the visitation petition. According to the father, Becky visited Florida late in the summer of 1994, and a week before school orientation was to begin, she wanted to bring the children back with her to New York. The father would not allow her to do so; nor would he allow her to bring the children to an Orlando motel room with her boyfriend, to whom she was not married. Becky allegedly became upset and told the father that she and the grandmother would get a lawyer and sue him for custody of the children. The father testified that he wanted his children to have no contact with Becky Dibble.
During the five years since the father and the children moved to Florida, the grandmother saw the children once, when, apparently on vacation in Florida, the grandmother and her husband twice stopped by and went to dinner with the father and the children. During those five years, she did not write them any letters but she claimed to have sent them three or four cards.
Each of the children testified. Tina, who was 14 at the time of the hearing, stated that she did not want to go to New York to see her grandmother; nor did she want to leave her family or friends. Tina explained that she did not know her grandmother, and that she would be unhappy to be 1300 miles away from her father. The court inquired of her relationship with her paternal grandparents, and Tina responded that her relationship with them was good. The court then asked if she would like to have a good relationship with her grandparents in New York, and Tina answered, "I guess." She stated that she would not object to her grandmother visiting her at her house in Florida.
Robert, Jr., who was 13 at the time of the hearing, testified that he did not want to go to New York and that he was involved with activities in Florida which he did not want to leave. He had friends in Florida and was on a bowling team, and with his sister he took care of two dogs at home. He too had no objection to his grandmother visiting him at home and he summarized that he "just did not want to" visit with his grandmother.
In the appealed order, the trial court found that "the children [were] not dramatically opposed to visitation with their Grandmother." The court also concluded that section 752.01 was constitutional and that visitation was in the best interests of the children. The order provided for an eight-day visit each summer in New York, phone contact every other day between the father and the children, and that transportation costs were to be paid by the grandmother. The order additionally provided that, with the grandmother present, the children could visit with other people during their stay, including other family members. Because there is no competent evidence that the ordered visitation is in the children's best interests, we reverse.
For several years, by statute, Florida law has authorized grandparents, under certain conditions, to commence an action in the circuit courts for visitation with their grandchildren. See § 752.01, Fla.Stat. (Supp.1985). Certain triggering events confer grandparents standing to file a visitation petition, including the death of a parent. § 752.01(1)(a), Fla.Stat. (1993). The statute requires the trial judge to award "reasonable rights of visitation" to a grandparent with respect to a child when such is found to be in the child's best interests. Five specific factors and one catchall factor that the court is required to consider in making the best interests determination are enumerated in the statute:
(a) The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents.
(b) The length and quality of the prior relationship between the child and the grandparent or grandparents.
(c) The preference of the child if the child is determined to be of sufficient maturity to express a preference.
(d) The mental and physical health of the child.
(e) The mental and physical health of the grandparent or grandparents.
(f) Such other factors as are necessary in the particular circumstances.
§ 752.01(2), Fla.Stat. (1993). The statute offers no guidance as to how these factors should be applied, and there is no requirement that any written findings be made by the trial judge.
The father urges that the decision that visitation with the grandmother in New York was in the children's best interests was not supported by substantial, competent evidence. Because determinations of a child's "best interests" are properly left to the sound discretion of a trial judge, see Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Pridgeon v. Pridgeon, 632 So.2d 257, 261 (Fla. 1st DCA 1994), the lower court's "best interests" decision must be affirmed unless this court finds the determination to be unsupported by substantial, competent evidence. See Dinkel, 322 So.2d at 24.
We begin with the seemingly unremarkable conclusion that it was the grandmother who bore the burden of establishing by competent evidence that visitation with her was in the best interests of each of her grandchildren. See § 752.01(1); see also Weybright v. Puckett, 262 Ill.App.3d 605, 200 Ill.Dec. 18, 20, 635 N.E.2d 119, 121 (1994); Santaniello v. Santaniello, 18 Kan.App.2d 112, 850 P.2d 269, 271 ...
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