Sharon Ginter v. Steven Anthony Cox ( 2021 )

RENDERED: APRIL 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0606-MR
SHARON GINTER
and JOHN GINTER APPELLANTS
APPEAL FROM FLEMING CIRCUIT COURT
v. HONORABLE STOCKTON WOOD, JUDGE
ACTION NO. 19-CI-00077
STEVEN ANTHONY COX
and MIRANDA ALLISON COX APPELLEES
OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: Appellants John and Sharon Ginter are respectively the
stepfather and mother of appellee, Steven Cox; and they are the grandparents of
Steven’s two adopted sons, D.C. (age 9) and P.C. (age 7). 1 Beginning in January
2019, Steven decided to prohibit John and Sharon from visiting with D.C. and P.C.
Consequently, John and Sharon petitioned the Fleming Circuit Court for
grandparent visitation rights regarding D.C. and P.C. pursuant to KRS2 405.021.
After the parties presented their positions and evidence in support thereof at a
hearing, the circuit court ultimately entered a final judgment denying John’s and
Sharon’s petition. This appeal followed. Upon review, we affirm.
For the sake of context, we will discuss the applicable legal
framework before delving into the facts. As indicated, the overarching issue in this
matter involves the right of grandparents to visit with their grandchildren against
the wishes of the grandchildren’s parents. In the seminal case of Troxel v.
Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States
Supreme Court considered grandparent visitation and the federal constitutional
implications of state statutes that permit courts to grant non-parent visitation with
children over the objections of their parents. The Court noted that the Due Process
Clause of the Fourteenth Amendment gives parents a fundamental liberty interest
in the care, custody, and control of their children. Id., 530 U.S. at 66, 120 S. Ct. at
1
Miranda Allison Cox is Steven’s ex-wife and the adoptive mother of D.C. She has no parental
rights regarding P.C., who currently has no legal mother. As her status as an appellee tends to
indicate, Miranda does not contest the circuit court’s disposition of this matter.
2
Kentucky Revised Statute.
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2060. Further, the Court recognized “a presumption that fit parents act in the best
interests of their children[,]” and as such,
so long as a parent adequately cares for his or her
children (i.e., is fit), there will normally be no reason for
the State to inject itself into the private realm of the
family to further question the ability of that parent to
make the best decisions concerning the rearing of that
parent’s children.
Id. at 68-69, 120 S. Ct. at 2061 (citing Reno v. Flores, 507 U.S. 292, 113 S. Ct.
1439, 123 L. Ed. 2d 1 (1993)).
In Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), our Supreme Court
discussed the impact of Troxel on Kentucky’s grandparent visitation statute, KRS
405.021(1), which states in pertinent part, “The Circuit Court may grant reasonable
visitation rights to either the paternal or maternal grandparents of a child and issue
any necessary orders to enforce the decree if it determines that it is in the best
interest of the child to do so.” The Walker Court upheld the constitutionality of the
statute, but emphasized that for the statute to comport with Troxel, courts must
presume that a fit parent acts in his or her child’s best interest:
When considering a petition for grandparent visitation,
the court must presume that a fit parent is making
decisions that are in the child’s best interest. “[T]he Due
Process Clause does not permit a [s]tate to infringe on the
fundamental right of parents to make child rearing
decisions simply because a state judge believes a ‘better’
decision could be made.” So long as a parent is fit,
“there will normally be no reason for the [s]tate to inject
itself into the private realm of the family to further
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question the ability of that parent to make the best
decisions concerning the rearing of that parent’s
children.” So a fit parent’s wishes are not just a factor to
consider in determining what is in the child’s best
interest. The constitutional presumption that a fit parent
acts in the child’s best interest is the starting point for a
trial court’s analysis under KRS 405.021(1).
Walker, 382 S.W.3d at 870-71 (footnotes omitted).
Essentially, in a grandparent visitation dispute, a parent and
grandparent are not on equal footing, and a parent’s decision to deny visitation is
given special weight. Furthermore, the Walker Court explained that because a fit
parent is presumed to act in the best interest of the child, a grandparent seeking
visitation against a parent’s wishes must overcome the presumption by clear and
convincing evidence. Thus, for a court to grant visitation over the wishes of the
parents, the grandparents must establish compelling evidence, that is, clear and
convincing, that visitation is in the child’s best interest. Id. at 871. In other words,
the grandparent must show that “the fit parent is clearly mistaken in the belief that
grandparent visitation is not in the child’s best interest. If the grandparent fails to
present such evidence to the court, then parental opposition alone is sufficient to
deny the grandparent visitation.” Id. “Given that these cases involve the
fundamental right of parents to raise their children as they see fit without undue
interference from the state, the use of the [clear and convincing] heightened
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standard of proof is required.” Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. App.
2004).
While “best interest” is a broad term, the Walker Court adopted a
nonexclusive list of factors, which initially were delineated by this Court in
Vibbert, for a trial court to consider when grandparent visitation is sought. Those
factors are:
1) the nature and stability of the relationship between the
child and the grandparent seeking visitation;
2) the amount of time the grandparent and child spent
together;
3) the potential detriments and benefits to the child from
granting visitation;
4) the effect granting visitation would have on the child’s
relationship with the parents;
5) the physical and emotional health of all the adults
involved, parents and grandparents alike;
6) the stability of the child’s living and schooling
arrangements; and
7) the wishes and preferences of the child.
Walker, 382 S.W.3d at 871. Moreover, Walker added an additional factor: “the
motivation of the adults participating in the grandparent visitation proceedings.”
Id.
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 Chief among these factors is a consideration of the effect that granting
non-parent visitation would have on the child’s relationship with his parents. In
Troxel, the Court noted that “[t]he extension of statutory rights in this area to
persons other than a child’s parents . . . comes with an obvious cost. For example,
the [s]tate’s recognition of an independent third-party interest in a child can place a
substantial burden on the traditional parent-child relationship.” Id., 530 U.S. at 64,
120 S. Ct. at 2059. The Kentucky Supreme Court has recognized that this
reasoning is especially true where animosity exists between the parent and
grandparent. Walker, 382 S.W.3d at 872. “Grandparent visitation should not be
granted if it is clearly detrimental to the parent-child relationship.” Id. In Grayson
v. Grayson, 319 S.W.3d 426 (Ky. App. 2010), a trial court granted limited
grandparent visitation over the vehement objection of the parents. The paternal
grandmother therein had exhibited extreme vitriol toward her daughter-in-law and,
perhaps to a lesser degree, toward her son. In reversing the decision of the trial
court, this Court held,
[T]he state of discord prevailing here is far more than a
“trivial disagreement” and exceeds the bounds of a
“family quarrel of little significance.” Requiring a child
to have visitation with a grandparent who has extreme
animosity toward the child’s parent would be inherently
unhealthy for the child and would potentially undermine
the relationship between the child and its parent. . . .
We respect the views of the distinguished trial court. If
this case were governed by an abuse of discretion
standard, we might be inclined to uphold the judgment of
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very limited visitation between Appellee and her
grandchildren. We discern an endeavor by the trial court
to preserve a thread in the torn fabric of this family. But
this was not a discretionary ruling by the trial court. The
court was required to apply KRS 405.021 and determine
whether visitation was affirmatively proven by clear and
convincing evidence to be in the children’s best interest.
Applying this standard, we can reach no conclusion other
than that the trial court erred as a matter of law in its
conclusions and judgment upon the evidence.
Id. at 432 (quoting King v. King, 828 S.W.2d 630 (Ky. 1992), overruled by Walker,
382 S.W.3d at 870).
The Court in Walker further answered the question as to whether clear
and convincing proof of a loving relationship between a grandparent and
grandchild alone is enough to overcome the parental presumption:
Except in special circumstances, it is not enough. . . . If
the only proof that a grandparent can present is that they
spent time with the child and attended holidays and
special occasions, this alone cannot overcome the
presumption that the parent is acting in the child’s best
interest. The grandparent must show something more—
that the grandparent and child shared such a close bond
that to sever contact would cause distress to the child.
Again, these determinations are fact-intensive. To allow
visitation on a lesser showing would put fit grandparents
on equal footing as fit parents, which violates the Due
Process Clause.
Walker, 382 S.W.3d at 872 (footnote omitted); see also Goodlett v. Brittain, 544
S.W.3d 656, 662 (Ky. App. 2018) (explaining that in making this determination,
“the mere existence of a close relationship between the grandparents and the
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children, or the fact that the children lived in the grandparents’ home for a time,
will not always be sufficient to overcome the parental presumption.” (Citation
omitted.)).
With that said, we now turn to the case at hand. When Steven decided
to prohibit John and Sharon from visiting with D.C. and P.C. in January 2019, it
was several months after Sharon had accused him of allowing the “women in [his]
life to drag [him] around by the penis.” Her comment was overheard by Steven’s
wife, Brandis, who became upset; and when Steven repeatedly asked Sharon to
apologize for the comment over the course of the following months, Sharon
repeatedly refused. What prompted Sharon’s comment was a text Sharon had
received from Steven’s ex-wife, Miranda, complaining about plans Steven had
made to remove D.C. and P.C. from their current school district, and to instead
place them in the school district where Steven’s current wife, Brandis, was
employed as a teacher, and where Brandis’s children (e.g., D.C.’s and P.C.’s step-
siblings) were enrolled.
In the fall of 2018, Sharon’s continued refusal to apologize for her
comment culminated into an argument between herself, John, Steven, and Brandis
at Steven’s and Brandis’s home. In sum, Steven accused Sharon of disrespecting
Brandis and not having “his back” in his relations with his ex-wife. Sharon
reiterated her refusal to apologize for her earlier comment and further accused
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Brandis of being a liar. John chastised Steven for yelling and for what he
perceived as Steven’s disrespect for Sharon. John and Sharon abruptly left
afterward. And, evidently, their argument was loud enough to cause one of
Brandis’s children to take D.C. and P.C. to another room in the house, shut the
door, and raise the volume on a television set to drown out the sound of it. There
is no indication D.C. and P.C. overheard the specifics of the argument. But,
according to the testimony of the Friend of the Court, both D.C. and P.C.
nevertheless heard the sound of the argument and, thereafter, understood they were
no longer seeing Sharon and John because, in their words, “Nanna said something
that hurt Daddy.”
As indicated, after Steven later prohibited Sharon and John from
visiting D.C. and P.C., Sharon and John sought to override his wishes by suing him
in Fleming Circuit Court for visitation rights. Both sides of this dispute later
provided evidence and testimony on this subject at a hearing before a domestic
relations commissioner (DRC) of the Fleming Circuit Court. And, considering that
evidence, the DRC made the following recommended findings relevant to Walker,
supra:
A. The nature and stability of the relationship
between the children and the grandparents seeking
visitation: By all testimony the children were close and
bonded to the grandparents. They saw the grandparents
on a very regular basis. There was no testimony from
Steven that the children’s and the grandparents’
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relationship was not good – only that his relationship
with his mother was not good.
B. The amount of time the grandparent and children
spent together: Although there is some discrepancy
between the Petitioners and Steven as to the amount of
time the children spent with the Petitioners, it was still
apparent that the children had spent a great deal of time
with the Petitioners.
C. The potential detriments and benefits to the
children from granting visitation: The DRC did not
hear any testimony of a detriment to the children
continuing their relationship with the grandparents.
Steven claimed that his mother was toxic and that he
needed to get away from her (and thus wanted the
children away from her), but his actual testimony only
describes a difference in what he believes she should be
commenting upon and what she actually comments on.
Granted Sharon used some terminology that most persons
would find offensive and she has continued to refuse to
apologize. However, this only affects her relationship
with her son and his new wife – it should not affect her
relationship with the children as it was not said to them
nor is there any testimony that they heard this statement.
There are obvious benefits for continuing the grandparent
relationship and the relationship as described was normal
and healthy. Even Steven in his text message to John
acknowledged that it was not fair to the children to be
without their grandparents and that the children should be
in Petitioners’ lives.
D. The effect granting visitation would have on the
children’s relationship with the parents: As long as
Steven does not chastise his children for seeing their
grandparents (and there is no testimony that would lead
to that conclusion), there should be no effect on his
relationship with the boys other than a loss of available
time to spend with them (which is always the case in any
visitation by another with a child).
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E. The physical and emotional health of all the adults
involved, parents and grandparents alike: There was
some testimony of Sharon having a health issue in
summer of 2018, but nothing that would interfere with
her ability to care for the children during any visitations.
The DRC believes that Sharon and Steven have both
acted immaturely in the situation. A simple apology
from Sharon would likely have prevented this entire
Court proceedings. Steven withholding the children,
because he is upset with his mother, is equally immature.
F. The stability of the children’s living and schooling
arrangements: Any visitations by the Petitioners will
not affect the children’s living arrangements or
schooling.
G. The wishes and preferences of the children: Per
the Friend of the Court the children desire to see their
grandparents. The fact that D.C. snuck a text to his
grandmother on her birthday is equally telling that he
misses the relationship.
H. The motivation of the adults participating in the
grandparent visitation proceedings: It appears that
Steven’s motivation is to control the parenting of the
children without the input into his decisions by his
mother. It appears that the Petitioners’ motivation is to
continue a loving close bond with their grandchildren. It
does not appear that either side in the proceeding is being
malicious or inappropriate.
In light of its findings, the DRC’s recommendation was for the circuit
court to grant Sharon and John visitation rights, which it further specified in detail.
Subsequently, Steven filed a bill of exceptions and contested the DRC’s
recommendations. And, after further considering this matter, the circuit court
entered an order on December 16, 2019, denying Sharon’s and John’s petition.
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To summarize, the circuit court agreed after reviewing the evidence
that it “appears that feelings got hurt and needed apologies, from both sides, never
materialized only leading to a fostering of hard feelings.” However, the circuit
court emphasized that Steven was a legally fit parent – a determination no party
disputes – and as such he was entitled to the presumption that his decision to deny
visitation to John and Sharon was consistent with his children’s best interests. See
Walker, 382 S.W.3d at 870-71. Accordingly, as the circuit court correctly
determined, the dispositive issue was whether Sharon and John – who bore the
burden of proof and risk of non-persuasion in this matter – had rebutted that
presumption through clear and convincing evidence. In that respect, the circuit
court held in relevant part as follows:
I. Findings of Fact
...
3. . . . There was no testimony by the Friend of the Court
that the children were unduly harmed by having no
contact with their grandparents. According to the Friend
of the Court, the children wished to see their
grandparents. The Court agrees with the Friend of the
Court and the DRC that visitation would be better if it did
occur; however, the Petitioner[s] ha[ve] not met [their]
heavy burden of showing by substantial evidence that the
minor children are severely affected by the withdrawal of
grandparent visitation by Respondent. The Court
believes “[T]he state of discord prevailing here is far
more than a ‘trivial quarrel of little significance,’”[FN]
where the grandmother was openly critical of Father and
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Stepmother in the presence of the children, and especially
when grandmother has refused to apologize.
[FN] Grayson v. Grayson, 319 S.W.3d 426,
432 (Ky. App. 2010); citing King v. King,
828 S.W.2d 630 (Ky. 1992).
4. This Court believes that the family quarrel in the
present case is not as offensive as in the Grayson case.
This Court agrees with the DRC that the relationship
between the parties will mend over time. The Court also
believes that the comment made by grandparent to the
parent was not proper, but not so egregious or outrageous
to completely break off the minor children’s relationship
with their grandmother. The Court also believes that the
argument between grandparent and parent that occurred
late last year was inappropriate to occur in front of the
minor children. However, with no apology forthcoming
from grandmother, the father’s authority and respect is
undermined in the eyes of the children.
...
III. Judgment
...
2. The Court finds that because the Respondent Father is
a fit parent, this Court will not order him to send the
minor children for visitation with their paternal
grandparents at this time.
3. The Court directs that if substantial evidence is
presented to the Court that the Respondent Father’s
refusal to allow grandparent visitation shows substantial
mental or emotional harm to the minor children, this
Court will revisit this issue.
4. The Court orders that the Respondent Father,
Respondent’s wife, and Petitioners shall negotiate and
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determine under which circumstance and conditions that
parties may agree that grandparents are permitted to have
contact with the minor children. Such conditions would
have to include, at a minimum, a sincere
acknowledgement and apology to the father and children
that open criticism and ridicule of Father was
inappropriate.
As the final paragraphs of what is set forth above tend to indicate, the
circuit court, in its wise discernment, intended for the December 16, 2019 order to
remain non-final to permit Sharon and John to either adduce evidence supporting
that Steven’s “refusal to allow grandparent visitation shows substantial mental or
emotional harm to the minor children,” or to privately negotiate a resolution to this
matter with Steven, prefaced with a “sincere acknowledgement and apology to the
father and children that open criticism and ridicule of Father was inappropriate.”
Rather than doing so, however, Sharon and John filed a motion for the circuit court
to make its order final and appealable. On April 14, 2020, the circuit court granted
their motion, for the following reasons:
The Court requested the parties meet and if no agreement
could be reached, the parties were to appear in front of
Judge Wood. The Court has been advised that the parties
could not agree on a meeting place; the relationships
have deteriorated; there has been no movement toward a
reconciliation; the Petitioners/grandparents do not wish
to attempt a settlement conference; and that
Petitioners/grandparents wish to make the Court’s ruling
in its December 16, 2019 order final and appealable.
Due to the inability of the parties to agree on anything,
and due to Petitioners not being willing to participate in a
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settlement conference, the Court hereby designates its
December 16, 2019 order to be final and appealable, with
no just cause for delay.
This appeal followed. In their brief before this Court, Sharon and
John re-emphasize paragraphs “A” through “H” of the DRC’s findings, set forth
above, and assert those findings demonstrate they adduced substantial evidence in
support of their petition for visitations rights. Furthermore, they point out that the
DRC believed their evidence justified granting their petition. With respect to their
latter point, however, the DRC’s beliefs or conclusions based upon the evidence
are entitled to no weight whatsoever. See Eiland v. Ferrell, 937 S.W.2d 713, 716
(Ky. 1997) (explaining a circuit court has “the broadest possible discretion with
respect to the use it makes of reports” or recommendations of a DRC.” (Citations
omitted)).
And regarding their former point, it makes little difference whether
they did or did not adduce substantial evidence below; that has little bearing upon
our standard for reviewing this appeal. Because Sharon and John were
unsuccessful below, the applicable criterion is whether the circuit court’s findings
were manifestly against the weight of the evidence. See Frances v. Frances, 266
S.W.3d 754, 756 (Ky. 2008). To explain, a trial court’s factual findings are
reviewed for clear error. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986); CR3
3
Kentucky Rule of Civil Procedure.
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52.01. A finding supported by substantial evidence is not clearly erroneous.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is that
which is “sufficient to induce conviction in the mind of a reasonable person.”
Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009). Moreover, we must
give due regard to the family court’s opportunity “to judge the credibility of the
witnesses.” CR 52.01. On the other hand, statutory interpretation and application
of the appropriate standard to the facts are issues of law and, consequently, are
reviewed de novo. Hill v. Thompson, 297 S.W.3d 892, 895 (Ky. App. 2009).
This, in turn, leads to Sharon’s and John’s final argument, and the
primary thrust of their appeal. They do not contest the circuit court’s assessment
that no evidence was adduced which demonstrated Steven’s refusal to allow them
visitation of D.C. and P.C. resulted in “substantial mental or emotional harm to the
minor children.” But, they contend that no such evidence was necessary.
Sharon and John are incorrect. As discussed, the chief factor to be
considered in deciding a petition for non-parent visitation rights is the effect that
granting such rights would have upon the child’s relationship with his parents.
Troxel, 530 U.S. at 64, 120 S.Ct. at 2059. Here, Sharon and John do not contest
their relationship with Steven is currently acrimonious; indeed, from all indications
of the record, Sharon still has not apologized to Steven. Moreover, Sharon and
John do not dispute the circuit court’s determination in its December 16, 2019
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order—with which this Court fully agrees – that “with no apology forthcoming
from grandmother, [Steven’s] authority and respect is undermined in the eyes of
the children.”
In light of that, and also in light of Steven’s undisputed fitness as a
parent, Sharon and John were thus required to present more than evidence merely
demonstrating “they spent time with [D.C. and P.C.] and attended holidays and
special occasions,” Walker, 382 S.W.3d at 872; or that they had “a close
relationship” or lived with D.C. and P.C. for a time. See Goodlett, 544 S.W.3d at
662. To properly oppose Steven’s fundamental liberty interest in the care, custody,
and control of his children, their quantum of proof required them to demonstrate
“something more—that [they] shared such a close bond [with D.C. and P.C.] that
to sever contact would cause distress to the child[ren].” Walker, 382 S.W.3d at
872. And, taken objectively, the circuit court paraphrased this principle when it
denied Sharon’s and John’s petition based upon the dearth of evidence indicating
Sharon’s and John’s lack of visitation had resulted in “substantial mental or
emotional harm to the minor children.”
Absent any evidence that D.C. and P.C. have suffered distress from
Sharon’s and John’s lack of visitation – and Sharon and John cite none – the circuit
court’s denial of their petition cannot be considered manifestly against the weight
of the evidence or otherwise incorrect. Accordingly, we AFFIRM.
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ALL CONCUR.
BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE, STEVEN
ANTHONY COX:
Earl Rogers III
Morehead, Kentucky Darrell K. Ruark
Flemingsburg, Kentucky
BRIEF FOR APPELLEE, MIRANDA
ALLISON COX:
No brief filed.
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