Mary Wilson-Hinson v. Jesse Hinson (Appeal from Lee Circuit Court: DR-20-900026). ( 2024 )

Rel: April 19, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
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________________________
Mary Wilson-Hinson
v.
Jesse Hinson
Appeal from Lee Circuit Court
(DR-20-900026)
MOORE, Presiding Judge.
Mary Wilson-Hinson ("the mother") appeals from a judgment
entered by the Lee Circuit Court ("the trial court") awarding Jesse
Hinson ("the father") visitation with the parties' minor child, with the
right to delegate his visitation rights to George David Hinson and
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Tommie W. Hinson ("the paternal grandparents"). We reverse the trial
court's judgment and remand the case with instructions.
Background
In pertinent part, the record shows that the child was born in
September 2018 during the marriage of the parties. In October 2019, the
parties separated after the father was incarcerated for crimes involving
the unlawful sale of securities. In January 2020, the mother filed a
complaint seeking a divorce from the father; the trial court subsequently
granted the parties a divorce but reserved ruling on any child-custody
matters. In April 2021, the paternal grandparents filed a motion to
intervene to request visitation with the child. In May 2021, the trial
court entered a pendente lite order allowing the paternal grandparents
to intervene and awarding them supervised visitation with the child for
three hours each month. In November 2021, after the father had been
released from incarceration, the trial court vacated that part of the
pendente lite order awarding the paternal grandparents visitation with
the child and entered a new pendente lite order awarding the father
visitation with the child. The new pendente lite order stated that "the
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father may assign his visitation to [the paternal grandparents] as he sees
fit."
On April 30, 2022, the father was again incarcerated following his
conviction for other crimes relating to the unlawful sale of securities. As
part of his sentence, he was ordered to be imprisoned for three years. The
case proceeded to a final hearing on July 28, 2022. Three days before the
hearing, the paternal grandparents filed a second motion to intervene to
again request visitation with the child; however, the paternal
grandparents had remained parties to the case and the trial court
therefore denied the motion to intervene as moot. The paternal
grandmother was allowed to testify in support of the paternal
grandparents' request for visitation.
At the time of the July 2022 hearing, the father was serving his
sentence at the Kilby Correctional Facility ("Kilby"). No party offered
any evidence regarding whether Kilby allowed prisoners to visit with
their children or the schedule followed at Kilby for such visitation. At
trial, the father testified as follows:
"[Counsel for the father]: Are you wanting [the trial
court] to give you visitation?
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"[The father]: I'm asking [the trial court] to give [the
paternal grandparents] visitation.
"[Counsel for the father]: While you're incarcerated?
"[The father]: While I'm incarcerated, yes.
"[Counsel for the father]: When you get out, you would
like to be able to petition [the trial court] to have visitation,
personally?
"[The father]: Absolutely."
The paternal grandmother testified that she would like to have visitation
with the child one weekend a month "while [the father] is incarcerated."
On October 27, 2022, the trial court entered a final judgment
awarding the mother sole legal and sole physical custody of the child and
child support, awarding the father visitation with the child, and denying
all other requests for relief. The judgment provides, in pertinent part:
"Visitation with the father shall be the 3rd Saturday of each month from
9:00 a.m. until 6:00 p.m. He may delegate those visits to his parents, but
if he does so, they must confirm their intent to exercise his visitation by
the 2nd Saturday of each month." The mother timely filed a
postjudgment motion challenging the visitation provision, which was
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denied by operation of law. See Rule 59.1, Ala. R. Civ. P. On March 20,
2023, the mother timely filed a notice of appeal to this court.
Issues
On appeal, the mother argues, as she did in her postjudgment
motion, that the trial court abused its discretion in awarding the father
visitation with the child and in allowing the father to delegate his
visitation rights to the paternal grandparents. The mother maintains
that the trial court did not receive sufficient evidence to support its award
of visitation to the father and that the trial court, in substance, awarded
visitation to the paternal grandparents without complying with the
Alabama Grandparent Visitation Act ("the GVA"), § 30-3-4.2, Ala. Code
1975, in violation of her due-process rights.
Standard of Review
"The trial court has broad discretion in determining the visitation
rights of a noncustodial parent, and its decision in this regard will not be
reversed absent an abuse of discretion." Carr v. Broyles, 652 So. 2d 299,
303 (Ala. Civ. App. 1994). Every case involving a visitation issue must
be decided on its own facts and circumstances, but the primary
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consideration in establishing the visitation rights accorded a
noncustodial parent is always the best interests and welfare of the child.
Watson v. Watson, 555 So. 2d 1115, 1116 (Ala. Civ. App. 1989).
Analysis
Alabama law provides a noncustodial parent with reasonable
visitation rights if that visitation is in the best interests of his or her
child. Naylor v. Oden, 415 So. 2d 1118, 1120 (Ala. Civ. App. 1982). In
assessing whether it is in the best interests of a child to visit with an
incarcerated parent, the trial court should consider, among other factors,
the age of the child, the relationship between the parent and the child,
the reason for the incarceration, the length of the incarceration, the
visitation environment, the potential psychological impact on the child of
in-prison visits, and the feasibility of the visitation. See, e.g., Robert SS.
v. Ashley TT., 143 A.D.3d 1193, 1194, 40 N.Y.S.3d 245, 246 (2016); D.R.C.
v. J.A.Z., 612 Pa. 519, 536, 31 A.3d 677, 687 (2011); Harmon v. Harmon,
943 P.2d 599, 605 (Okla. 1997). Another factor to be considered is the
willingness of the incarcerated parent to visit with the child under the
conditions of his or her imprisonment.
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In this case, the father testified that he would not be seeking to
exercise any visitation with the child until he was released from prison.
The father had evidently determined that it would not be in the best
interests of the child for him to visit with the child in a prison
environment. Consequently, the father did not even attempt to make a
case that he should be awarded visitation with the child during his
incarceration. We agree with the mother that the trial court did not
receive any evidence showing that it would be in the best interests of the
child, who was three years old at the time of trial, to visit with the father
while he was incarcerated. Accordingly, the trial court should not have
awarded the father visitation with the child.
Likewise, the trial court should not have awarded the father the
right to delegate any visitation rights to the paternal grandparents. The
paternal grandparents asserted their own claim to visitation with the
child, but the trial court denied that claim in the final judgment when it
ordered that all motions and requests not specifically granted were
denied. The judgment nevertheless affords the paternal grandparents
the right to exercise visitation with the child as designees of the father so
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long as all conditions of the visitation provision are satisfied. As the
mother argues, the visitation provision circumvents the GVA.
Ordinarily, a fit noncustodial parent who has been awarded
reasonable visitation rights with a child may authorize a family member
to visit with the child during the noncustodial parent's visitation period.
In at least one plurality opinion, this court has also recognized that,
under appropriate circumstances, a noncustodial parent who is unable to
exercise his or her visitation rights may delegate those rights to a family
member until parental visitation can be resumed. See McQuinn v.
McQuinn, 866 So. 2d 570 (Ala. Civ. App. 2003) (plurality opinion).
However, as will be shown, the plurality opinion in McQuinn does not
support the trial court's decision in this case to empower the father to
delegate his visitation rights to the paternal grandparents.
In McQuinn, a Tennessee court entered a judgment divorcing Scott
McQuinn and Jamie McQuinn. The Tennessee court found that it was in
the best interests of the McQuinns' minor children for Scott to have
visitation with them every other Saturday from 9:00 a.m. to 6:00 p.m.,
and it awarded Scott visitation accordingly. Jamie and the children
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subsequently moved to Guntersville. A little over a year after the divorce
judgment was entered, Scott filed a petition to modify the visitation
provisions of the divorce judgment because he had joined the United
States Navy and was stationed in Washington state, making the
visitation as outlined in the divorce judgment impracticable. The
Marshall Circuit Court modified the visitation provision to, among other
things, allow certain members of Scott's family to have access to the
children during Scott's visitation periods in his stead; however, after
considering a postjudgment motion filed by the mother, the Marshall
Circuit Court amended the modification judgment to only allow their
paternal grandfather to transport the children to visitations with Scott.
Scott appealed the amended modification judgment to this court,
primarily arguing that the Marshall Circuit Court had erred in removing
his right to delegate his visitation rights to his family members. A
plurality of the court agreed and reversed the judgment. The plurality
opinion proceeds from the concept that parents have a fundamental right
to control their children's companions and associations. A noncustodial
parent does not forfeit that right by divorcing the custodial parent and
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joining the armed forces. When a court awards reasonable rights of
visitation to a fit noncustodial parent, that award ordinarily carries with
it the right of the noncustodial parent to decide who may visit with the
child during his or her visitation periods, a decision that may not be
vetoed by the custodial parent.
As noted, McQuinn is a plurality opinion. Judge Crawley and
Judge Pittman concurred in the main opinion, Presiding Judge Yates,
Judge Thompson, and Judge Murdock concurred only in the result as to
the discussion regarding visitation. Plurality opinions have questionable
precedential value at best. Ex parte Discount Foods, Inc., 789 So. 2d 842,
845 (Ala. 2001). Thus, McQuinn should not be read as establishing any
rigid rule of law holding that a noncustodial parent may delegate his or
her visitation rights to family members regardless of the circumstances
at issue. In the main opinion, the plurality said:
"The present judgment, however, limits the father to
utilizing the aid of only the paternal grandfather to transport
the children during visitation. Such a restrictive limitation,
based on the specific facts of this case, is an abuse of the
[Marshall Circuit C]ourt's discretion because of the father's
employment and the considerable distances involved, both
between the father's home and the children's home and
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between the other family members' homes and the father's
and the children's homes."
McQuinn, 866 So. 2d at 574 (emphasis added). The plurality carefully
worded its opinion in McQuinn to explain that the terms of the judgment
restricting the father's parental rights were an abuse of discretion based
on the specific facts of that case.
Based on the circumstances of this case, we conclude that the trial
court abused its discretion in allowing the father to delegate his visitation
rights to the paternal grandparents. As we have already discussed, the
evidence shows that the father does not intend to visit with the child until
at least April 2025, after his release from prison; instead, the father
intends for the parental grandparents to exclusively exercise any
visitation rights to which he is entitled while he remains incarcerated.
The visitation provision, in effect, grants the father and the paternal
grandparents the visitation rights that they requested in their testimony
at trial.
In In re Huff, 158 N.H. 414, 969 A.2d 428 (2009), the New
Hampshire Supreme Court considered whether a trial court could
authorize an incarcerated parent to delegate part of his visitation time to
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his girlfriend and a third party. Lawrence Huff divorced Jamie Huff,
and, in a pendente lite order, he was allocated every-other-weekend
visitation with their child. Lawrence was subsequently incarcerated for
three to six years in a state penitentiary that allowed visitation only from
8:30 a.m. to 11:00 a.m. each Saturday. In the final divorce judgment, the
New Hampshire trial court nevertheless awarded Lawrence visitation
with his child a full weekend each month, authorizing Lawrence to
delegate the remainder of his visitation to his girlfriend and to a friend
in order to facilitate visitation between the child and his half siblings,
who resided with the girlfriend. The New Hampshire Supreme Court
reversed the judgment, reasoning that, "[w]here both parents are fit, the
trial court may only award the incarcerated parent that visitation time
which he can actually exercise." 158 N.H. at 419, 969 A.2d at 432. The
court concluded that "[t]ime allocated to the [incarcerated parent] beyond
that [to which he or she can actually exercise], which is then delegated to
a third party, is equivalent to awarding an unrelated third party
visitation rights." 158 N.H. at 420, 969 A.2d at 433.
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In this case, the record is devoid of any evidence indicating that the
father can exercise his visitation rights on "the 3rd Saturday of each
month from 9:00 a.m. until 6:00 p.m.," and the evidence is clear that he
is unwilling to exercise that court-ordered visitation even if he could. For
the purposes of this opinion, we see no substantive distinction between
an incarcerated parent who is unable to visit with a child and an
incarcerated parent who is unwilling to visit with a child. In either case,
the visitation will not be exercised by the noncustodial parent due to his
or her current circumstances, so any visitation award that includes a
right to delegation necessarily inures to the benefit of third parties.
We conclude that this case is analogous to In re Huff, which we find
to be well reasoned and persuasive. Under the specific facts of this case,
the visitation provision allowing the father to delegate his visitation is
the equivalent of awarding the paternal grandparents visitation rights.
Unlike in McQuinn, in this case, the original award of visitation
specifically contemplates that the paternal grandparents shall be the
only parties exercising visitation because, as the evidence indicates, the
father will automatically delegate all visitation rights to them while he
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is incarcerated. As the mother correctly argues, the judgment indirectly
awards the paternal grandparents visitation with the child without
meeting the notice, evidentiary, and other standards set forth in the
GVA. See Ala. Code 1975, § 30-3-4.2(c), (d), (e), (l), and (m). McQuinn
did not envision a visitation provision like the one at issue in this case,
which does, in fact, run afoul of the GVA. We must therefore reverse the
judgment in this case.
Finally, we recognize that the visitation provision was generally
favorable to the paternal grandparents because it awarded the paternal
grandparents the visitation that they had sought via the delegation
provision. However, the judgment was unfavorable to the paternal
grandparents to the extent that it denied their independent claim for
visitation. The paternal grandparents could have filed a cross-appeal
challenging the denial of their independent claim for grandparent
visitation, but they did not. As a result, the denial of that claim has
become the law of the case. See Stocks v. Stocks, 49 So. 3d 1220, 1236
n.4 (Ala. Civ. App. 2010) (Moore, J., concurring in part and dissenting in
part) ("The custodians did not file a cross-appeal as to [the trial court's]
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finding, so it is now the law of the case that the mother did not voluntarily
forfeit her rights to custody of the children."); see also Norandal U.S.A.,
Inc. v. Graben, 18 So. 3d 405, 410 (Ala. Civ. App. 2009) (explaining that
failure to file cross-appeal made unchallenged portions of judgment the
law of the case); accord Segers v. Segers, 675 So. 2d 459, 460 (Ala. Civ.
App. 1996). Because the denial of their GVA claim is now the law of the
case, the paternal grandparents are not entitled to visitation with the
child through any theory that they had proven their case under the GVA.
Conclusion
Based on the foregoing, we conclude that the visitation provision
implemented by the trial court was improper. We therefore reverse the
judgment insofar as it awards the father visitation with the child and
allows him to delegate his visitation to the paternal grandparents. See
Raybon v. Hall, 17 So. 3d 673, 676 (Ala. Civ. App. 2009) (" 'The reversal
of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it
never existed.' " (quoting Shirley v. Shirley, 361 So. 2d 590, 591 (Ala. Civ.
App. 1978)). We remand the case with instructions for the trial court to
enter an order denying the father and the paternal grandparents
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visitation with the child. Because the paternal grandparents did not file
a cross-appeal, the trial court may not, on remand, reconsider the denial
of their independent claim for grandparent visitation. Although our
disposition precludes the father and the paternal grandparents from
currently visiting with the child, and does not allow the trial court to
amend its judgment to allow the father and the paternal grandparents to
visit with the child, nothing in this opinion shall be interpreted as
preventing the father or the paternal grandparents from petitioning the
trial court to modify the no-visitation order if the material circumstances
change and the paternal grandparents otherwise comply with the GVA.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Edwards, Fridy, and Lewis, JJ., concur.
Hanson, J., dissents, without opinion.
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