X.P.E.L. v. J.L.L.

• Decision Date: 08 June 2021
• Docket Number: No. ED 108748,ED 108748
• Citation: 627 S.W.3d 592
• Court: Missouri Court of Appeals
• Parties: X.P.E.L., BY His NEXT FRIEND, C.T., and C.T., Individually, Appellants, v. J.L.L., Respondent.

627 S.W.3d 592

X.P.E.L., BY His NEXT FRIEND, C.T., and C.T., Individually, Appellants,

v.J.L.L., Respondent.

No. ED 108748

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: June 8, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 2021

Application for Transfer Denied August 31, 2021

For Appellants: Jay R. Anielak, 308 E. High St., Ste. 106, Jefferson City, MO 65101.

For Respondent: Kathleen N. Aubuchon, 116 W. Liberty St., Farmington, MO 63640, Lawrence G. Gillespie, 120 S. Central Ave., Ste. 650, Clayton, MO 63105.

Guardian Ad Litem: Brad Van Zee, 104 N. Mine St., Potosi, MO 63664.

KURT S. ODENWALD, Judge

Introduction

C.T. ("Grandmother") appeals from the trial court's judgment denying her amended petition seeking visitation, which she filed following J.L.L.’s ("Father's") action for paternity and custody over X.P.E.L. ("Child") against M.H. ("Mother"). Grandmother raises two points on appeal. First, Grandmother alleges the trial court erred in denying visitation under Section 452.402.1¹ by incorrectly applying a ninety-day rather than a sixty-day period for unreasonable denial of visitation and by measuring the denial period from the date she filed her pleadings rather than from the date judgment was entered. In her second point, Grandmother contends the trial court erred in denying visitation because she satisfied Section 452.402.1's two-prong test in that (1) Father unreasonably denied Grandmother visitation for sixty days and (2) she qualified under one of the three subdivisions. Specifically, Grandmother maintains she qualified to seek grandparent visitation under Section 452.402.1(1) ("Subdivision (1)") because she was permitted to intervene in Father's paternity and custody action. However, the plain language of Subdivision (1) allows grandparents to seek visitation only in the context of dissolution proceedings, not paternity or custody proceedings. Because this case does not involve a dissolution proceeding, the statute does not allow Grandmother the opportunity to seek visitation under Subdivision (1), and we deny Point Two. Further, because the record shows that Grandmother does not qualify to request grandparent visitation under the remaining two subdivisions of Section 452.402.1, any error in the trial court's application of the denial period under the first prong of Section 452.402.1 would not afford Grandmother relief, and we deny Point One. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

Father and Mother had Child together and did not marry. On May 21, 2018, Father petitioned for a declaration of paternity and custody over Child. Grandmother, Father's mother, filed a petition seeking third-party custody under Section 452.375.5(5). The trial court consolidated the actions, and the case proceeded to trial. During trial, Grandmother abandoned her pursuit of third-party custody and supported awarding custody to Father. In its judgment issued February 21, 2019, the trial court denied Grandmother custody, determined Father's paternity and awarded Father custody. The trial court made findings under Section 452.375 that Father was a fit and suitable candidate for sole legal and physical custody and that Father's parenting plan was in Child's best interests.

The trial court then granted Grandmother leave to amend her pleadings to seek visitation, and Grandmother thereafter filed an amended petition ("Amended Petition") seeking visitation.² In her Amended Petition Grandmother alleged that Child resided in Grandmother's home for at least six months within the twenty-four-month period immediately preceding the filing of the Amended Petition, that she was unreasonably denied visitation with Child for a period exceeding ninety days, and that visitation was in Child's best interests.

The trial court conducted a bench trial on Grandmother's Amended Petition for visitation. Following the trial, the parties filed proposed judgments. In her suggestions in support of her proposed judgment, Grandmother alleged that she satisfied the requirements of Subdivision (1) by having intervened in Father's paternity and custody proceeding. Subsequently, the trial court denied Grandmother's Amended Petition for visitation in a final judgment issued January 20, 2020 (the "Judgment"). The trial court rejected Grandmother's allegation that Child resided with her for at least six months within the twenty-four-month period immediately preceding the filing of the original petition or the Amended Petition. Based on Grandmother's testimony and daycare records introduced by Father, the trial court found Child resided with Father during the timeframe Grandmother alleged Child resided with her. Upon cross-examination, Grandmother acknowledged that the daycare records were correct and that Child did not reside with her during the relevant timeframe. The trial court rejected Grandmother's allegation that she was unreasonably denied visitation with Child for a period exceeding ninety days because Grandmother admitted at trial that she was afforded visitation "each and every month ... for the ninety days before she filed her pleadings[.]"

Having rejected Grandmother's factual assertions, the trial court denied Grandmother's Amended Petition because she failed to satisfy the requirements for visitation under either Section 452.402.1 or Section 452.375.5(5). The trial court determined that Grandmother failed to qualify for visitation under Section 452.402.1. Specifically, Grandmother was not unreasonably denied visitation for a period exceeding ninety days, and Grandmother failed to qualify for visitation under 452.402.1(3) ("Subdivision (3)") because Child did not reside with Grandmother during a six-month period preceding the filing of either her original or her Amended Petition. The trial court also noted that Grandmother failed to satisfy the requirements for visitation pursuant to Section 452.375.5(5) because visitation under that provision should be entertained only after considering and denying parental custody. Here, in the underlying paternity and custody action, the trial court found Father fit for sole legal and physical custody. Grandmother now appeals.

Points on Appeal

Grandmother raises two points on appeal. First, Grandmother argues the trial court misapplied the law when denying Grandmother visitation because the trial court incorrectly measured and applied the sixty-day denial of visitation period in Section 452.402.1. In particular, Grandmother alleges the trial court incorrectly applied a ninety-day denial period from a prior version of the statute and incorrectly measured the denial period from the date Grandmother filed her Amended Petition rather than from the date the Judgment was issued. In her second point, Grandmother contends the trial court misapplied the law when denying Grandmother visitation because Grandmother satisfied the two-pronged requirements under Section 452.402.1. Specifically, Grandmother maintains she was unreasonably denied visitation for sixty days, and she qualified to seek grandparent visitation under Subdivision (1) because she successfully intervened in Father's paternity and custody action.

Standard of Review

We will affirm a trial court's judgment in a bench trial unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Clay v. Clay, 552 S.W.3d 692, 695 (Mo. App. E.D. 2018) (internal citation omitted). "We grant great deference to the trial court's ability to determine witness credibility; the trial court determines what portions of a witness's testimony to believe or disbelieve." Id. (internal citation omitted). However, while we defer to the trial court's findings of fact, we "do not defer to the trial court on questions regarding the declaration or application of the law." Id. (internal citation omitted). Further, we review questions of statutory interpretation de novo. D.E.G. v. Juv. Officer of Jackson Cnty., 601 S.W.3d 212, 216 (Mo. banc 2020).

Discussion

I. Point Two—Subdivision (1) of Section 452.402.1

Because Point Two raises a question of statutory interpretation relevant to our review of both points on appeal, we first will address Point Two. Grandmother maintains that because she was allowed to intervene in Father's paternity and custody action, the trial court erred in finding her ineligible to seek grandparent visitation under Subdivision (1) of Section 452.402.1. Father counters that the trial court properly denied visitation because Grandmother intervened in a paternity and custody action, and not in a dissolution action as required by the plain language of Subdivision (1).

A grandparent's right to visitation does not exist at common law and is a right granted exclusively by statute. In re J.D.S., 482 S.W.3d 431, 438 (Mo. App. W.D. 2016), distinguished on other grounds by Massman v. Massman, 505 S.W.3d 406 (Mo. App. E.D. 2016) (internal citation omitted). In Missouri, Section 452.402 governs grandparent visitation. Hanson v. Carroll, 527 S.W.3d 849, 852 (Mo. banc 2017). The legislature amended Section 452.402 in 2019. Preliminarily, we note the parties generally agree the amended statute applies to the case, because the amended version was in effect when the trial court entered the Judgment. See S.E.M. v. St. Louis Cnty., 590 S.W.3d 378, 381 (Mo. App. E.D. 2019) (citing State ex rel. D&D Distributors, LLC v. Mo. Comm'n on Hum. Rights, 579 S.W.3d 318, 325 (Mo. App. W.D. 2019) ) (noting "generally, changes to remedial or procedural statutes apply to all pending cases unless it would invalidate actions taken in a previous proceeding"). Further, as the following discussion makes clear, the most recent amendment does not impact the outcome of the appeal. Section 452.402.1 provides the following:

The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree

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