Horton v. Freeman

2014 Ark. App. 166, 433 S.W.3d 280, 2014 WL 960893, 2014 Ark. App. LEXIS 221
CourtCourt of Appeals of Arkansas
DecidedMarch 12, 2014
DocketNo. CV-13-952
StatusPublished
Cited by2 cases

This text of 2014 Ark. App. 166 (Horton v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horton v. Freeman, 2014 Ark. App. 166, 433 S.W.3d 280, 2014 WL 960893, 2014 Ark. App. LEXIS 221 (Ark. Ct. App. 2014).

Opinion

ROBIN F. WYNNE, Judge.

111n this one-brief appeal, Kassandra Horton appeals from the circuit court’s order awarding grandparent visitation to appellee Rhonda Freeman, the mother of the minor child’s deceased father. She argues that (1) the trial court erred in awarding grandparent visitation over the objections of the parent; (2) even if the award of grandparent visitation is affirmed, granting appellee the same visitation as a non-custodial parent is excessive; and (8) the trial court “lacked subject matter or statutory jurisdiction” to make any determination concerning grandparent visitation because paternity had not been established by a court of competent jurisdiction. We affirm the award of grandparent visitation and reject the jurisdictional argument, but we reverse the amount of grandparent visitation and remand for the circuit court to reconsider the amount of visitation under the proper standards.

|p,On October 26, 2012, appellee filed a petition for paternity and for grandparent visitation with D.F., born July 23, 2009.1 In her response, appellant admitted that Dustin had acknowledged paternity of D.F. and that she had admitted under oath that Dustin was the biological father and received Social Security payments on behalf of D.F. A hearing was held on May 29, 2018. Appellee testified regarding her relationship with D.F. She stated that her son Dustin, appellant, and D.F. lived with her and her ex-husband at their home in Osceola from the end of September 2009 until they moved to Hot Springs in April 2010; they moved back in with her in June 2010 and stayed until December 2010. During the times that they lived with her, appellee cared for D.F. consistently. She stated that D.F. did not sleep upstairs with his parents because of the stairs, and she often cared for him when he awoke during the night or when his parents were out. During the day, appellee shared child-care responsibilities with appellant and Dustin. Appellee introduced numerous pictures of her and her family with D.F. She testified that appellant stopped letting her see D.F. in September 2012 after she and appellant got into an argument. Appellee described her frequent visits with D.F. after her son’s death and testified that she loved D.F. and he loved her; that she had the capacity to give D.F. love, affection, and guidance; and that if awarded visitation she would be cooperative. She testified that she was taking the prescription drug Xanax three times a day, that she had gotten a DUI in September 2011, that she spent the night at the hospital on her son’s birthday after his death because she took her medication and then drank four beers, and that she had paid a fine after being convicted of “laying |shands” on her ex-husband; however, she testified that appellant had never raised any of these as concerns prior to cutting off her visits with D.F.

Appellee’s son Justin testified to the close relationship between D.F. and his mother, as well as the rest of the family. He also testified that his brother and appellant lived at a house on Cherry Drive before moving to Hot Springs; he testified that they moved in with his mother when they returned to Osceola and lived with her six to nine months over different periods of time. Denise Ferguson, a close friend of appellee, and Peggy Clark, appel-lee’s sister, testified that appellant, Dustin, and D.F. lived with appellee during the times that appellee had testified to. Ap-pellee’s witnesses all echoed appellee’s testimony that she and D.F. had a close, loving relationship prior to that relationship being cut off by appellant.

Appellant and her uncle, John Horton; her mother, April Lamb; and her cousin, Dana Herriman all testified that appellant and D.F. had never lived with appellee. Appellant testified that D.F. is Dustin’s child and that she and Dustin broke up in June 2010. She stated that she would allow appellee back in D.F.’s life if she ever became stable again. She also testified regarding the reasons she did not think it was right for D.F. to be “constan-dy preached about his daddy.”

In an order entered June 3, 2013, the court granted appellee grandparent visitation and awarded her “visitation with the minor child consistent with the visitation chart currently in use in the Second Judicial District.” The court found that appel-lee had proved a significant and viable relationship with the child (crediting the testimony of appellee and her witnesses over that of appellant and her witnesses) and that it was in the child’s best interest to have visitation with appellee. The court addressed the allegations by appellant that appellee’s | Judgment was questionable due to her use of a prescription drug, a 2011 conviction for DWI, a misdemeanor conviction for battering a former boyfriend, and joking that she smoked marijuana; the court found that, while “[tjhese are not good things, ... these instances of bad behavior would not, of themselves, be a bar to the grant of [appellee’s] statutory right.”

Several posttrial motions were filed in this case. On June 17, 2013, appellant filed a motion for new trial under Rule 59, rehearing/amendment of findings under Rule 52, or to rule on all pending claims and/or to enter a certification under Rule 54(b). Appellee responded. Appellant filed a supplemental motion, which included an emergency motion to suspend visitation on the grounds that the child had been in the custody of appellee’s sister on a family vacation that appellee did not go on and that appellee had left the child in a vehicle unattended.

The court held a hearing on June 26, 2013, and entered an order on July 8, 2013. In the order, the court ruled on appellant’s jurisdictional claim but expressly reserved the remaining issues for a future hearing.2 Regarding appellant’s claim that the court lacked jurisdiction because paternity had not been established prior to the filing of the petition for grandparent visitation, the court ruled that appellee did not have to prove paternity because appellant had conceded it in her pleadings and in her testimony: Appellant filed a notice of appeal on August 7, 2013, in which she abandoned any pending but unresolved claims.

|BI. Award of Grandparent Visitation

First, appellant argues that the circuit court erred in finding that appellee overcame the statutory presumption that her (appellant’s) decision denying visitation was in the best interest of the child. She challenges both the court’s significant-and-viable-relationship finding and the best-interest finding.

Arkansas’s grandparent visitation statute, Arkansas Code Annotated section 9-13-103 (Repl.2009), provides in part:

(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation -with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:

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Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. App. 166, 433 S.W.3d 280, 2014 WL 960893, 2014 Ark. App. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horton-v-freeman-arkctapp-2014.