Ingram v. Ingram , 62 O.B.A.J. 2684 ( 1991 )

MEMORANDUM OPINION

HANSEN, Judge:

Appellant brings this appeal challenging the trial court’s denial of her application for grandparental visitation with her deceased son’s minor children. In 1987, Ap-pellee intitiated divorce proceedings against her husband and father of the minor children of the parties, Halloka Ingram. Pursuant to pre-trial proceedings, the trial court initially denied visitation with the minor children by the father; however, upon motion and after hearing, the trial court issued an order allowing visitation with the minor children by Appellant, the paternal grandmother.

During the pendency of the divorce, Hal-loka Ingram died. Appellant continued regular visitation with the minor children for the ensuing nine months until such time as Appellee refused to allow further visitation. Thereafter, Appellant filed application in the original divorce action seeking to enforce grandparental visitation privileges. After full hearing, the trial court denied Appellant’s application on the grounds such visitation was not in the best interests of the minor children. The trial court further ordered Appellee’s allegations of child abuse by Appellant reported to and investigated by the Department of Human Services.

Pursuant to this order, DHS conducted its investigation over the next several months, interviewing the minor children, Appellee and Appellant, and completing a home study on Appellant. Appellant also commissioned a private home study in addition to voluntarily undergoing psychological testing and evaluation. Thereafter, Appellant filed an additional application for visitation to which Appellee responded with a motion to dismiss on the grounds Appellant’s request for visitation had previously been adjudicated and denied. The trial court granted Appellee’s motion to dismiss, finding the application was barred based on the doctrine of res judicata. This appeal results.

The order which gives rise to this appeal notes, in pertinent part, that the trial court had previously conducted a full hearing on Appellant’s application for visitation but specifically found it was not in the best interests of the children to allow such visitation due to the relationship between Appellant and Appellee which was “so acrimonious- as to be detrimental to the children” and was unlikely to improve in the future. The trial court then noted Appellant had filed the additional application for visitation, alleging in support thereof her desire for the trial court to consider proffered new evidence; e.g., the results of the private home study, psychological tests on Appellant, and investigation conducted by DHS. The trial court, however, found as follows:

[Appellant’s] proposed evidence, even if received by the Court, would not show changed circumstances warranting relief, because the original finding of this Court was based upon the detrimental effect the parties’ acrimonious relationship had upon the children. To show a material change in circumstances, [Appellant] must show the relationship between the parties had changed significantly and can no longer have a detrimental effect upon the children. Evidence pertaining to allegations of child abuse would not show a change in the parties’ relationship warranting the vacation or modification of this Court’s prior order.

The trial court then held that because Appellant’s latest application for visitation involved the same action and parties, and made the same demands, it was “barred by the principle of res judicata”; that Appellant had received full and fair opportunity to litigate the issues concerning visitation vis-a-vis the best interests of the minor children, and, accordingly, would not be permitted to try the issue a second time.

Appellant maintains the trial court abused its discretion in granting Appellee’s motion to dismiss without considering the new evidence or testimony proffered by Appellant, citing In Re Bomgardner, 711 P.2d 92, 97 (Okla.1985) and Guardianship of Sherle, 683 P.2d 78, 80 (Okla.App.1984), for the proposition that court supervision over the welfare of children is equitable in character. As the Bomgardner Court determined, the Legislature has “never statutorily declared a grandparent’s access to the grandchild to be nonactionable ... All impediments to the cognizance of a grandparents’ claim have been self-imposed. Equity recognizes — independent of statute— the grandparents’ claim to the companionship of their grandchild.” The Court then held grandparents have standing, pursuant to statute and in equity, to assert a claim for access to and companionship of their offspring. 711 P.2d at 97.

Title 10 O.S.Supp.1990 § 5 specifically mandates the right of a grandparent to reasonable visitation with a minor grandchild provided such visitation is in the best interest of the minor, and the district courts are specifically vested with the requisite jurisdiction to issue orders granting visitation and enforcing such rights. We find no reference in this statute prohibiting the filing of more than one application for grandparental visitation; rather, the prohibition to the granting of such application is if visitation is not in the best interest of the minor children. Nor do we find any indicia, in the statute or otherwise, that the best interests of minor children are fixed and immutable. On the contrary, § 5 even provides for the possibility of grandparental visitation subsequent to termination of parental rights and/or adoption of the minor child. The trial court has continuing jurisdiction over matters of child custody and visitation. We therefore find no legal impediment to the bringing of an additional application for grandparental visitation subsequent to previous denial of application for visitation.

Having so held, we turn to the facts of the case at bar. Herein, the trial court specifically stated in the most recent order that its denial of Appellant’s application for visitation was based on res judicata inasmuch as Appellant failed to show any change of the circumstance which led to the trial court’s original denial of visitation; i.e., the relationship between Appellant and Appellee was so acrimonious as to be detrimental to the best interests of the minor children.¹ However, the determinative issue is whether the best interests of the children would be served by visitation. By granting Appellee’s motion to dismiss, the trial court denied Appellant the right and ability to demonstrate to the trial court her new evidence would establish the best interests of the minor children would be served by allowing visitation.

The test to modify a previous custody or visitation order is “change of circumstances”, and this requirement is an “attempt to accord some degree of finality to factual and legal determinations made in such matters which, if absent, would lead to constant relitigation of matters already determined.” Boatsman v. Boatsman, 697 P.2d 516, 519 (Okla.1984). However, an applicant for modification of an order of visitation must be allowed the opportunity to demonstrate the requisite change of circumstance which would warrant modification.

We view Appellant’s application for visitation and proffered evidence in support thereof as necessitating judicial inquiry into whether, based on new evidence, visitation with Appellant would be in the best interests of the minor children. By precluding the hearing of any evidence, the trial court erroneously and prematurely terminated trial of an issue of equitable cognizance. See Bomgardner, 711 P.2d at 92. We thus find the trial court abused its discretion in granting Appellee’s motion to dismiss.

REVERSED AND REMANDED for further proceedings not inconsistent with this opinion.

GARRETT, P.J., concurs. HUNTER, C.J., dissents with separate opinion.

1 . As an aside, we note that as a general rule if a certain amount of acrimony is not present in a relationship between a custodial parent and the child’s grandparent, visitation would be effected without resort to court proceedings.