Weathers v. Compton
| Citation | 723 So.2d 1284 |
| Parties | Julian WEATHERS and Louie Weathers v. Paula Gay McCrary Weathers COMPTON. |
| Decision Date | 06 November 1998 |
| Court | Alabama Court of Civil Appeals |
Michael L. Weathers, Florence, for appellants.
No brief filed for appellee.
On September 9, 1994, Julian Weathers and Louie Weathers ("the paternal grandparents") filed a petition in the Circuit Court of Limestone County to modify the divorce judgment between their son, Joseph Edward Weathers ("the natural father"), and their former daughter-in-law, Paula Gay McCrary Weathers Compton ("the mother"). In that petition, the paternal grandparents asked the trial court to award them visitation rights with their grandchild, born during the marriage of the mother and the natural father. Following an ore tenus hearing, the trial court entered an order on April 8, 1998, denying the paternal grandparents' request for visitation rights. The paternal grandparents appealed.
The record reflects that the natural father and the mother of the minor child were married on September 6, 1988, and were divorced by the Circuit Court of Limestone County on September 12, 1989. In its divorce judgment, the trial court awarded the mother the care, custody, and control of the child and granted the natural father visitation rights. The child was approximately six months old when the court entered the divorce judgment.
The natural father's visits with the child routinely took place at the paternal grandparents' home. During these visits, which occurred on alternate weekends, the paternal grandparents picked the child up at the mother's home and took him to their home.
The mother remarried on June 6, 1992. On November 16, 1993, with the consent of the natural father, the mother's new husband adopted the child. However, even after the adoption, the paternal grandparents continued to visit the child for about six hours every two weeks, usually on Saturdays. The paternal grandparents' last visit with the child took place on January 1, 1994. Soon after that date, the mother and the adoptive father notified the paternal grandparents that they would no longer permit the paternal grandparents to visit with the child.
On appeal, the paternal grandparents argue that the trial court erred when it held, "as a matter of law," that it would not be in the best interest of the child to grant them visitation rights because the mother and the adoptive father objected to the grandparents' visiting the child. Instead, the paternal grandparents argue, the trial court should have made a factual determination as to whether granting them visitation rights would serve the best interest of the child.
When the trial court hears evidence presented ore tenus, its findings of fact are presumed correct; however, no presumption of correctness exists when the trial court improperly applies the law to the facts. Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996); and Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993). Because there are no disputed material facts and this appeal focuses on the application of the law to the facts, no presumption of correctness attaches to the trial court's judgment. See Allstate, supra. Therefore, we review de novo the application of the law to the facts of this case. See id.; Beavers v. County of Walker, 645 So.2d 1365, 1373 (Ala. 1994)
; Lake Forest Property Owners' Ass'n v. Smith, 571 So.2d 1047, 1049 (Ala.1990).
Under the principles of the common law, grandparents possessed no legal right of visitation with their grandchildren if the parents forbade such visitation. Ex parte Bronstein, 434 So.2d 780, 782 (Ala.1983); Loftin v. Smith, 590 So.2d 323, 325-26 (Ala.Civ.App. 1991); and Clark v. Leslie, 537 So.2d 25, 26 (Ala.Civ.App.1988).
In 1980, the Alabama legislature enacted § 30-3-3, Ala.Code 1975, which abrogated this common-law proposition and created a right of visitation for grandparents under limited circumstances when the parents divorce. Section 30-3-3, Ala.Code 1975, provided that "[t]he presiding judge in a divorce case involving custody of children, may award, at his discretion, visitation rights to the grandparents of such children."
In 1983, the Alabama legislature repealed § 30-3-3 and enacted § 30-3-4, Ala.Code 1975. One aspect of the intent of the legislature in enacting the 1983 statute was to expand "grandparental rights to visitation to include the situation involving the death of one of the grandchild's parents." Mills v. Parker, 549 So.2d 97, 98 (Ala.Civ.App.1989).
In 1989, the Alabama legislature amended § 30-3-4, Ala.Code 1975, to give grandparents the right to intervene in any divorce action and to file a motion to modify the original divorce judgment solely for visitation rights, the right to move for a finding of contempt when the parents of the child have denied visitation rights, and the right to visitation when the parents of a child unreasonably deny grandparents visitation for a period exceeding 90 days.
In 1995, the Alabama legislature again amended § 30-3-4, Ala.Code 1975. The Alabama legislature made the applicability of the 1995 amendment retroactive to January 1, 1989. 1995 Ala. Acts, Act No. 95-584. Therefore, the 1995 version of § 30-3-4, Ala. Code 1975, applies in this case. The 1995 version of § 30-3-4 states:
(Emphasis added.)
The legislature's intent in enacting the 1995 version of § 30-3-4 was "to provide visitation privileges for grandparents, those privileges presumed to be in the best interest of the child, but the presumption being rebuttable upon the consideration of the court of what is in the best interest of the child." Act No. 95-584.
In Ex parte Bronstein, 434 So.2d 780 (Ala. 1983), our Supreme Court first considered the issue whether natural grandparents who desire to visit their grandchildren may obtain visitation rights when the children's natural mother has subsequently remarried and the natural father has consented to the stepfather's adoption of the children. The supreme court held that the former § 30-3-3 applied only in situations where the court was considering custody matters in a divorce case. Ex parte Bronstein, 434 So.2d at 783. The Supreme Court further stated:
Ex parte Bronstein, 434 So.2d at 783-84.
In 1984, the year after our supreme court issued its opinion in Bronstein, the legislature amended § 26-10-5, Ala.Code 1975, to acknowledge an exception to the general rule that an adoption order that terminates the rights of the natural parents also terminates the rights of the natural grandparents. 1984 Ala. Acts, Act No. 84-254. Through the enactment of this statute, the legislature carved out specific circumstances under which the trial court, at its discretion, could award visitation rights to natural grandparents. See Loftin v. Smith, 590 So.2d 323, 326 (Ala.Civ.App.1991); Snipes v. Carr, 526 So.2d 591, 593 (Ala.Civ.App.1988).
In 1990, § 26-10A-30, Ala.Code 1975, replaced § 26-10-5. 1990 Ala. Acts, Act No. 90-554. Section 26-10A-30 states:
(Emphasis added.)
In the present case, the trial court stated in its order:
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Ex Parte E.R.G. And D.W.G.
...natural, custodial parent is only of a recent origin, appearing for the first time in this state in 1980. See Weathers v. Compton, 723 So. 2d 1284, 1286 (Ala. Civ. App. 1998). That right hardly stands as an enduring tradition of Western civilization on equal footing with the parental right ......
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