Stanley R. Bolivar v. Joyce Waltman , 2016 Miss. App. LEXIS 371 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00352-COA
STANLEY R. BOLIVAR AND CINDY BOLIVAR APPELLANTS
v.
JOYCE WALTMAN APPELLEE
DATE OF JUDGMENT: 02/12/2013
TRIAL JUDGE: HON. FRANKLIN C. MCKENZIE JR.
COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANTS: DEBRA LYNN ALLEN
ATTORNEY FOR APPELLEE: SAMUEL S. CREEL JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: VISITATION GRANTED TO APPELLEE
DISPOSITION: AFFIRMED - 06/07/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
BARNES, J., FOR THE COURT:
¶1. This appeal originates from an order by the Chancery Court of Jones County,
awarding visitation of two minor children – Jason “Blake” Waltman, born October 25, 2003,
and Kaylee Waltman, born October 5, 2005 – to their paternal grandmother, Joyce Waltman.
Both children are wards of their maternal grandparents, Stanley and Cindy Bolivar, who were
appointed by the chancery court as the children’s co-guardians on May 18, 2008. The
children’s natural parents, Jason Waltman and Karen Clark, have a history of prolonged
substance abuse and consented to the appointment of the Bolivars as the co-guardians.1
1
A final judgment of divorce for Jason and Karen was entered on August 24, 2006.
¶2. Initially, the Bolivars allowed Joyce visitation with the grandchildren in accordance
with the visitation awarded to Jason in the couple’s 2006 divorce decree. But, in early 2010,
the Bolivars began limiting the visitation with Joyce, decreasing it from every other weekend
to every other Saturday between 8 a.m. and 5 p.m. As a result, Joyce filed a petition for
visitation privileges on April 9, 2010. The chancery court entered an order on May 24, 2010,
awarding certain visitation rights to Joyce, which was termed to be the “same visitation”
previously awarded to her son, Jason. The Bolivars appealed that decision to this Court, and
on April 3, 2012, we vacated the judgment and remanded for further proceedings because the
natural parents, whose parental rights had not been terminated, were not joined as necessary
parties to the action. Bolivar v. Waltman, 85 So. 3d 335, 337 (¶¶8-9) (Miss. Ct. App. 2012).
¶3. On June 22, 2012, Joyce, along with her son, Jason, filed a joint amended petition for
grandparent-visitation privileges. The chancery court granted temporary relief on August 13,
2012, allowing her visitation with the children on the second weekend of every month. A
hearing was held on November 14, 2012, where Joyce and Stanley presented testimony.2 The
chancery court entered its order and findings of fact on February 5, 2013. After considering
the statutory requirements for awarding grandparent visitation3and the appropriate factors set
forth in Martin v. Coop, 693 So. 2d 912 (Miss. 1997), the chancellor awarded Joyce
2
Jason attended the hearing. The chancellor noted in his order granting visitation that
Karen “was appropriately noticed regarding the hearing,” but she was not present, nor did
she file any responsive pleadings.
3
See Miss. Code Ann. § 93-16-3 (Rev. 2013).
2
visitation of: (1) the second weekend of every month; (2) Thanksgiving weekend of every
year from Friday at noon until the following Saturday at 5 p.m.; (3) December 18 through
December 24 on even-numbered years; and December 26 through January 1 on odd-
numbered years, which is to take the place of the regular weekend visitation. She was also
granted a period of visitation of one week during the summer, the timing of which is to be
agreed upon by the parties. If the parties cannot agree, the weekly visitation is to begin on
the Sunday afternoon of the June weekend of visitation and continue until the following
Sunday at 5 p.m. The chancery court also set forth several conditions or rules for both sets
of grandparents to abide by, including (1) not smoking, drinking alcohol, or cursing around
the children, (2) providing only age-appropriate games, and (3) supervising any visitation
with the children’s natural parents.
¶4. The Bolivars filed a motion for a new trial or, in the alternative, to alter or amend the
judgment on February 22, 2013, alleging several errors in the chancery court’s findings. On
February 5, 2015, the chancery court denied the motion, and the Bolivars now appeal the
court’s decision.4 Joyce has not filed an appellee brief. Generally, “the failure of an appellee
to file a brief is tantamount to a confession of error and ordinarily would be accepted as such
and the judgment of the court below would be reversed.” N.E. v. L.H., 761 So. 2d 956, 962
4
The two-year delay in addressing the motion appears to be related to various
motions filed by both parties, including a motion by the Bolivars to depose the children’s
counselor, which was re-noticed several times, and to introduce additional evidence.
Additionally, Joyce’s counsel withdrew (retired), and she was awarded time to hire new
counsel.
3
(¶14) (Miss. Ct. App. 2000) (quoting Green v. Green, 317 So. 2d 392, 393 (Miss. 1975)).
“However, when matters on appeal touch the welfare of a minor child, then regardless of
whether a party filed a brief, this Court will ‘reach the merits of the issues in this appeal,
though we proceed unaided by a brief from the appellee.’” Id. (quoting Allred v. Allred, 735
So. 2d 1064, 1067 (¶9) (Miss. Ct. App. 1999)).
¶5. Finding no error, we affirm.
STANDARD OF REVIEW
¶6. Unless we find that a chancery court’s determination regarding visitation and its
restrictions is manifestly wrong or constitutes an abuse of discretion, we are bound to accept
its findings. Lofton v. Lofton, 176 So. 3d 1184, 1186 (¶5) (Miss. Ct. App. 2015) (citation
omitted). “Chancellors are afforded wide latitude in fashioning equitable remedies in
domestic relations matters, and their decisions will not be reversed if the findings of fact are
supported by substantial credible evidence in the record.” Id. (quoting Walley v. Pierce, 86
So. 3d 918, 920 (¶8) (Miss. Ct. App. 2011)). Questions of law, however, are reviewed de
novo. Id.
DISCUSSION
I. Whether the chancery court erroneously shifted the burden of
proof to the Bolivars to prove why they opposed the visitation
demanded by Joyce.
¶7. The Bolivars contend that the chancellor “erred as a matter of law by not requiring
Joyce to produce evidence that she was entitled to have court[-]ordered visitation with the
4
children.” Mississippi Code Annotated section 93-16-3 establishes the statutory guidelines
for determining grandparent visitation. The first guideline, set forth in subsection (1) is not
relevant to the present case, as it concerns “when a grandparent can show his or her own
child has not been awarded custody of the grandchild, has had parental rights terminated, or
has died.” Aydelott v. Quartaro, 124 So. 3d 97, 100 (¶9) (Miss. Ct. App. 2013) (citing Miss.
Code Ann. § 93-16-3(1)). Subsection (2) provides that a grandparent may petition for
visitation “when a grandparent has shown: (1) that a ‘viable relationship’ with his or her
grandchild has been established, (2) that visitation with the grandchild has been unreasonably
denied by the grandchild’s parent, and (3) that visitation is in the best interest of the
grandchild.” Id. (citing Miss. Code Ann. § 93-16-3(2)).
¶8. In its findings of fact, the chancery court recited the appropriate statutory requirements
and concluded that Joyce had supported the children financially and “has had frequent
visitation including overnight visitation for a period of time beyond that prescribed by
statute.” The Bolivars argue that Joyce was not required by the court to prove that she had
established a viable relationship with the children, that the Bolivars had “unreasonably
denied” her visitation, or that the visitation would be in the children’s best interest.
A. Whether Joyce established she had a viable relationship with the
children.
¶9. A “viable relationship” is defined by section 93-16-3(3) as follows:
[T]he term “viable relationship” means a relationship in which the
grandparents or either of them have voluntarily and in good faith supported the
child financially in whole or in part for a period of not less than six (6) months
5
before filing any petition for visitation rights with the child, the grandparents
have had frequent visitation including occasional overnight visitation with said
child for a period of not less than one (1) year, or the child has been cared for
by the grandparents or either of them over a significant period of time during
the time the parent has been in jail or on military duty that necessitates the
absence of the parent from the home.
The chancellor noted that at the hearing on the prior action in 2010, Joyce testified she had
paid Jason’s child support until 2010, when the Bolivars “began to restrict Joyce’s
visitation.” Joyce also testified that she bought the children clothes, food and games when
they visited her. The Bolivars contend there is no evidence that she voluntarily supported the
children, but admit that she “may have given [the Bolivars] some money.” They argue that
it was unclear whether she was paying child support.
¶10. We find that the reason for any financial contributions made by Joyce to support her
grandchildren does not matter. Section 93-16-3(3) makes no distinction – it merely states
that the grandparent “ha[s] voluntarily and in good faith supported the child financially in
whole or in part for a period of not less than six (6) months before filing any petition for
visitation rights with the child.” (Emphasis added). The chancellor found that Joyce met this
requirement, and we find no abuse of discretion in his finding.
¶11. The Bolivars also argue that Joyce only procured her visitation with the children
through her erroneous representation to them that she was entitled to it under the law.
Regardless of how she obtained visitation, we find that Joyce met the requirement that she
have frequent, including overnight, visitation with the children for more than one year. This
issue is without merit.
6
B. Whether Joyce failed to present proof that the Bolivars unreasonably
denied her visitation.
¶12. The Bolivars argue that Joyce “never met her burden of proof to show that she had
been unreasonably denied visitation.” The Bolivars reason that since Joyce was never
entitled to the same visitation awarded to Jason, any restricting of visitation with the children
was not “unreasonable,” and they were merely “exercis[ing] their rights and perform[ing]
their duties as lawfully appointed guardians” by limiting the visitation. However, the
Bolivars acknowledge that they tried to “cut back contact between the children and Joyce”
and “sought to limit [visitation] to every other Saturday from 8:00 a.m. until 5:00 p.m.” This
was due to their “desire that the children attend church on Sunday mornings, in light of the
fact that Joyce . . . was not . . . home on Friday nights, and in light of Joyce[’s] clearly
directing the children, by her own admission, to withhold information from Cindy and
Stanley[.]”
¶13. The chancellor made no detailed findings in this regard, except to note that the
Bolivars began to restrict Joyce’s visitation in 2010. The chancellor further noted that
Stanley “likes to be in control” and “wishes to micro-manage” how the children spend their
time with Joyce. Stanley provided no specific testimony as to why the visitation was
decreased in 2010, but simply acknowledged that he did not like the children to spend more
than a couple of nights with Joyce because “she don’t have the same . . . rules that we have.”
It is apparent that Stanley was restricting visitation simply because he felt it disrupted the
family’s schedule, and he did not approve of Joyce’s failure to take the children to church
7
every Sunday that she had them. Furthermore, as Joyce noted at the hearing, in order to get
the visitation that she had enjoyed prior to 2010, she had to file the action and “go through
a lot.” She also noted that the Bolivars will occasionally not answer the phone and fail to
return her calls.
¶14. We conclude the evidence supports a finding that the Bolivars unreasonably denied
visitation to Joyce.
C. Whether granting visitation with Joyce was in the children’s best
interest and the chancery court erred in its application of the Martin
factors.
¶15. The chancery court concluded that “because of the close relationship the children have
previously enjoyed with Joyce, the [c]ourt finds that it is in the best interest of the children
that such visitation occur[.]” The Bolivars argue that “ample evidence was presented as to
why it is not in the best interest of the children to have such unfettered, frequent and lengthy
contact with Joyce.”
¶16. In determining whether grandparent visitation is in a child’s best interests, the
chancery court must consider the factors set forth by Martin, 693 So. 2d at 916. These
factors include, but are not limited to:
1. The amount of disruption that extensive visitation will have on the
child’s life. This includes disruption of school activities, summer
activities, as well as any disruption that might take place between the
natural parent and the child as a result of the child being away from
home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of
supervision received by the child.
8
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated
with that employment.
10. The willingness of the grandparents to accept that the rearing of the
child is the responsibility of the parent, and that the parent’s manner of
child rearing is not to be interfered with by the grandparents.
Id.
¶17. The Bolivars refute the chancellor’s finding that visitation with Joyce “[did] not
appear to have become a disruption until this litigation began.” Their argument mainly
centers around their desire for the children to attend the Bolivars’ regular church every
Sunday, asking Joyce to bring the children to the church on the weekends that she has them.
Joyce, who lives seventeen miles away, attends a different church, although she
acknowledged that she does not take the children to her church “all the time.” The only other
purported disruption is that Cindy cancelled the children’s doctor appointment in the summer
to accommodate Joyce’s visitation. Upon review, although the Bolivars claim that the record
is full of examples of the disruptive nature of the visitation, we must agree with the
chancellor’s assessment that these instances are “minor.”
9
¶18. As to the other applicable factors, the chancery court noted that, at the time of the
hearing, Joyce was fifty-seven years old, and reported no physical or mental issues or any
criminal history. In regard to the suitability of Joyce’s home, she testified that she has lived
in a two-bedroom mobile home for the last several years, and the court was satisfied that the
children had suitable accommodations. Although Joyce is a smoker, she testified that she
tried not to smoke when the children were visiting. Joyce said that she does not drink
alcohol. Her home is located only seventeen miles from the Bolivars’ home, so distance is
not an issue. The court also noted that while Joyce is employed at Bumpers Drive-In as a
manager five to six days week, she testified that she is able to schedule her work around
visitation with the children, earning three weeks of vacation a year.
¶19. The Bolivars argue that Joyce had encouraged the children to lie to them, although the
only specific instance they could refer to was the fact that Joyce bought Blake a cell phone
and did not “ask[ ]their permission” or tell them. Stanley insisted that the children would tell
lies to him upon returning home from Joyce’s, but he provided no details except to assert that
“I can look at their eyes and kinda tell” when the children are not telling the truth. Stanley
also noted that Blake telling lies was “an ongoing issue.”
¶20. Most of the Bolivars’ objections to Joyce are due to the fact that she allowed the
children contact with their father, Jason, who Stanley claims was not a good “role model”
because he “do[es not] believe in God.” We find nothing in the record to indicate that Jason
was prohibited from seeing the children. And although Joyce admitted that she let Jason and
10
his girlfriend stay at her home on one occasion when the children were there, she assured the
chancery court that situation would not occur in the future. Joyce also acknowledged that
when Stanley told her not to let Blake play video games one weekend as punishment, she did
not abide by that wish. But, again, she stated that was only one occasion, and she has
generally abided “by what [Stanley] said.” The chancellor concluded that it would be
difficult for Joyce to meet all the Bolivars’ requirements, as it is apparent from his testimony
that Stanley has very high expectations and likes “to micro-manage the time Joyce spends
with her grandchildren.”
¶21. The chancellor appropriately considered the applicable Martin factors in this case, and
we find no abuse of discretion in his finding that awarding visitation to Joyce was in the
children’s best interest.
II. Whether the chancery court’s award of visitation to Joyce was
excessive.
¶22. The Bolivars contend that the chancery court erred in awarding visitation to Joyce
equivalent to that a natural parent would receive. The Mississippi Supreme Court has held
that “visitation granted to grandparents should not be equivalent to that which would be
granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it
should be.” Martin, 693 So. 2d at 916.
¶23. Nonetheless, “when a chancellor finds that there are circumstances that
‘overwhelmingly dictate’ that a grandparent should be awarded equivalent visitation to that
of a parent, those findings must be fully discussed on the record.” Townes v. Manyfield, 883
11
So. 2d 93, 97 (¶29) (Miss. 2004). In Arrington v. Thrash, 122 So. 3d 144, 149 (¶¶20-21)
(Miss. Ct. App. 2013), this Court considered whether the chancery court abused its discretion
in awarding “liberal visitation” to the child’s paternal grandparents (“eighty days of weekend
and summertime vacation, plus extensive holiday visitation”), which was similar to that of
a custodial parent. The child’s father was deceased, and the grandparents had helped care
for the child since she was a baby. Id. at 146 (¶¶3, 5). We noted that Martin made it clear
that “‘equivalent visitation’ was not a starting point, but that it could be an ending point only
in appropriate cases.” Id. at 150 (¶22). We upheld the chancellor’s decision, noting the
unstable home environment provided by the natural mother and the grandparents’ extensive
participation in the child’s life. Id. at 150-51 (¶¶26-27).
¶24. In awarding visitation to Joyce, the chancery court recognized that it “may be close
to what is allowed a non-custodial parent.” After discussing the Martin factors, it concluded
that “because of the close relationship the children have previously enjoyed with Joyce, . .
. it is in the best interest of the children that such visitation occur and . . . it would be harmful
to the children not to grant it.” Until 2010, Joyce had enjoyed the same visitation as that
awarded to Jason. Although the Bolivars argue that she was not entitled to that much
visitation, it does not change the fact that she has maintained a close relationship with her
grandchildren. Furthermore, the children have minimal contact with their natural parents.
Accordingly, we find no abuse of discretion in the chancery court’s findings.
III. Whether the chancery court should have given deference to the
Bolivars to exercise their discretion as to how much visitation Joyce
12
should be allowed to have.
¶25. The Bolivars argue that, as the custodial guardians, they should have been entitled “to
some deference” by the chancellor “to determine how much visitation Joyce had with the
minor children.” However, the supreme court has addressed this issue in Woodell v. Parker,
860 So. 2d 781, 787-88 (¶¶22, 27) (Miss. 2003), holding:
There is no language in [section 93-16-3(2)] suggesting that the custodial
parent’s opinion with regard to what is “in the best interest of the child” is to
receive some sort of “deference” or that findings as to the fitness of a parent
are to be made. However, under applicable case law, we find that “deference”
is afforded to the opinion of a “natural parent” involved in a visitation dispute
under this nature.
....
Although we have deferred to the opinions and judgments of “natural parents”
when it concerns the amount of visitation to be afforded grandparents, we have
not provided that “custodial adoptive grandparents” . . . should be afforded the
same presumptions under the grandparents’ visitation rights statutes.
In the present case, the Bolivars are not the children’s parents; they are their court-appointed
guardians. The rights of neither natural parent have been terminated. Thus, we find no merit
to this argument, and we affirm the chancellor’s judgment.
¶26. THE JUDGMENT OF THE CHANCERY COURT OF JONES COUNTY,
SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANTS.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.
13