Ray v. Hannon

14 S.W.3d 270, 2000 Mo. App. LEXIS 388, 2000 WL 291416
CourtMissouri Court of Appeals
DecidedMarch 21, 2000
DocketNo. 56838
StatusPublished
Cited by10 cases

This text of 14 S.W.3d 270 (Ray v. Hannon) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ray v. Hannon, 14 S.W.3d 270, 2000 Mo. App. LEXIS 388, 2000 WL 291416 (Mo. Ct. App. 2000).

Opinions

HAROLD L. LOWENSTEIN, Judge.

Appellants Rich and Leea March appeal the judgment of the Circuit Court of Randolph County, awarding Kenneth and Rebecca Rogers grandparent visitation rights with Appellants’ daughter under the auspices of § 452.402, RSMo Cum.Supp. 1996.1 The court granted the Rogers grandparent visitation rights after finding the Appellants had unreasonably denied them visitation with their granddaughter for a period exceeding ninety days. On appeal, the Marches claim the trial court abused its discretion in granting visitation because (1) the visitation granted was excessive and not minimally intrusive and (2) there was no substantial evidence in the record to support the finding that grandparent visitation was in the best interest of the child. Affirmed.

STATEMENT OF FACTS

On March 25, 1993, Taylor Raebecca March (“Child”) was born to Appellants Leea March (“Mother”) and Rick March (“Father”) (collectively, “Parents”). The Child’s maternal grandparents are Re[272]*272spondents Rebecca Rogers (“Grandmother”) and Kenneth Rogers (“Grandfather”) (collectively, “Grandparents”). Parents, Child and Grandparents all reside in or around Cairo, Randolph County, Missouri.

Mother and Father were unmarried when their Child was born. Mother, age seventeen, was in high school at the time and was living with Grandparents. Child lived with Grandparents from the time of Child’s birth until May 12, 1997. It is undisputed that during this more than three-year time period, Grandparents were the primary care givers for the Child with Grandmother performing the majority of the parenting duties. Father never resided in the Grandparents’ home while his Child was there living. Mother did reside with Grandparents for part of the first three years of Child’s life. During the times Mother moved out of Grandparents’ home, the Child continued to reside with and be cared for by Grandparents.

In the spring of 1997, Mother and Father decided they would marry and attempt to raise Child themselves. On Mother’s Day, 1997, Father took the Child for a visit. Upon return to the Grandparents, Grandfather claims the Child told him of inappropriate contact between Father and Child. Thereafter, Grandmother made a “hotline call” to the Division of Family Services alleging abuse of Child by Father. The next day, Mother removed Child from the Grandparents’ home. Following an investigation, the hotline allegations were found to be unsubstantiated. However, the incident undoubtedly fueled family turmoil.

About a week after Parents removed Child from the Grandparents’ home, Mother and Father were married. After this time, Parents did not allow Grandmother any contact with the Child. Father felt Grandmother should not have access to the Child due to the hotline call Grandmother had made. Grandfather was allowed minimal contact with the Child during this time. On New Year’s Eve 1997, when Mother and Father were separated, Mother did allow Grandparents to visit with Child. Upon Father’s return, during the first week of January 1998, Father discontinued Grandparents’ visitation. Since January 1998, Grandparents have been denied all contact with the Child.

Grandparents filed their claim for visitation rights under § 452.402.1(3), the subdivision allowing a court to grant grandparent visitation rights when the grandparents have been unreasonably denied visitation with the child for a period exceeding ninety days. '

The court entered its judgment and decree granting Grandparents visitation rights as follows:

1. One weekend every other month from Friday at 6:00 p.m. to Sunday at 6:00 p.m., the weekend to be determined by Grandparents after 30 days notice to Parents.
2. One week of visitation during a summer month, the week to be selected by agreement, if possible, and if not, by Parents, taking into account Grandparents plans for the week of visitation.
3. Grandparents may visit with Child by telephone on the first Sunday of each month from 1:00 p.m. to 1:30 p.m.

Additionally, the court found it would be in the best interest of the Child to visit Grandparents while one or more of her cousins was also visiting.

STANDARD OF REVIEW

The judgment of the circuit court will not be reversed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Simpson v. Buck, 971 S.W.2d 856, 858-9 (Mo.App.1998) (cases cited therein omitted). “In matters pertaining to visitation rights, this Court gives deference to the trial court’s assessment of what serves the best interests of the child.” Id. at 858.

[273]*273ANALYSIS

As their first point on appeal, Parents assert the trial court abused its discretion in granting visitation rights to Grandparents because the visitation awarded was excessive and intrusive on the family in that it exceeded limitations recognized by applicable caselaw and was granted too frequently. Grandparents sought and were awarded visitation rights under § 452.402.1(3) which reads as follows:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when:
(3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days.

Parents claim under this statute, as analyzed by the Supreme Court of Missouri in Herndon v. Tuhey, 857 S.W.2d 203 (Mo. banc 1993), the visitation awarded Grandparents exceeded the statute’s limitations.

Herndon v. Tuhey was a grandparents visitation case brought under the same statutory section here at issue, § 452.402.1(3). The Herndon court upheld the constitutionality of § 452.402.1(3) while reversing the visitation awarded the Hern-dons as excessive. The Court determined the statute contemplated only a “minimal intrusion on the family relationship” and was “narrowly tailored.” Herndon, 857 S.W.2d at 210. Additionally, the Court wrote, “the ninety-day period of unreasonable denial of visitation that must elapse before a court may enter an order under section 452.402 indicates the legislature contemplated an allowance of minimal visitation subject to reasonable restrictions.” Id. Based on the limitations inherent in the statute, the Court found § 452.402.1(3) to be constitutional, as it adequately protected the family and was not overly intrusive.

Next, the Court examined the actual visitation granted the Herndons. Grandparents were awarded visitation of two Saturdays each month and later one Saturday and one overnight visit per month plus visitation around the Thanksgiving and Christmas holidays, a week during the summer and mandatory notification of all Grandchild’s school, social, and athletic activities. The Supreme Court of Missouri struck down this portion of the judgment as excessive. The Court interpreted § 452.402’s ninety day denial of visitation requirement prior to court involvement to mean the legislature contemplated visitation awards that were not excessive, were not on a par with parental visitation and were more limited than that granted the Herndons. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
14 S.W.3d 270, 2000 Mo. App. LEXIS 388, 2000 WL 291416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-hannon-moctapp-2000.