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Shores v. Lively

Court of Appeals of Arkansas, Division IV

May 4, 2016

KAYLA SHORES (now FITTS) APPELLANT
v.
MARILYN SUE LIVELY AND ROBERT ALAN LIVELY APPELLEES

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. DR-15-566] HONORABLE STACEY ZIMMERMAN, JUDGE

Elizabeth J. Finocchi, for appellant.

David Hogue, for appellees.

DAVID M. GLOVER, JUDGE

This is a grandparent-visitation case. Appellant Kayla Shores Fitts appeals the circuit court's decision to grant appellees Marilyn and Robert Lively visitation with their grandchildren, K.L.1 and K.L.2. Fitts argues the trial court erred (1) in finding the Livelys had established a significant and viable relationship with the children; (2) in finding it was in the best interest of the children to allow visitation; and (3) in allowing the children's father, Jonathan Lively, who was not a party to the visitation proceeding, to make a closing statement. We find merit in Fitts's argument on the second point; we reverse the trial court's grant of visitation.

Fitts and the Livelys' son, Jonathan, are the biological parents of K.L.1 and K.L.2. K.L.1 was born on September 3, 2010, and K.L.2 was born on February 28, 2012. In June 2014, while Jonathan was incarcerated, his parental rights were terminated by the Washington County Circuit Court. The termination decision was reversed and remanded by our court in Lively v. Arkansas Department of Human Services, 2015 Ark.App. 131, 456 S.W.3d 383.

Fitts and Jonathan divorced in August 2014. The Livelys filed their petition for grandparent visitation in April 2015; at that time, Jonathan was still incarcerated, and his parental-rights and visitation case was then pending. Fitts's motion to consolidate Jonathan's pending parental-rights and visitation case with the Livelys' grandparent-visitation case was granted. At the time of the hearing, Fitts's new husband, Colby Fitts, had an outstanding petition to adopt K.L.1 and K.L.2.

The circuit court initially heard the Livelys' petition for grandparent visitation on July 10, 2015, and determined the Livelys met the burden set out in the grandparent-visitation statute; however, the circuit court ordered family counseling to take place between the Livelys and the children in order to determine what type of visitation should occur between them and the children. The circuit court set a final hearing for September 2015 to determine if the counseling was beneficial. An order to this effect was filed on July 28, 2015.[1]

Fitts appealed the circuit court's grant of visitation on July 30, 2015. She also refused to set counseling appointments; in response, the Livelys filed a motion to hold her in contempt. The circuit court held a hearing on September 18, 2015. The Livelys argued the July 28 order was not a final order but merely a temporary order because it contemplated a final hearing in September 2015. Fitts argued the circuit court found that the Livelys had met their burden of proof for grandparent visitation in the July 2015 hearing and it was therefore a final order, which she was appealing. The circuit court agreed it had previously found that the Livelys met their burden of proof but also agreed no specific visitation had been set forth due to the order for counseling and the need to ease into visitation. The circuit court declined to hold Fitts in contempt; it set specific, supervised visitation for the first Saturday of every month from 1:00 p.m. to 3 p.m. An order to this effect was filed on September 18, 2015, and Fitts filed her notice of appeal on the same day.

Standard of Review

As a rule, when the setting of visitation is at issue, we will not reverse the trial court absent an abuse of discretion. Hollingsworth v. Hollingsworth, 2010 Ark.App. 101, 377 S.W.3d 313. Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Id. The "clearly erroneous" standard of review is applied to a trial court's findings of fact in domestic-relations cases; however, a trial court's conclusions of law are given no deference on appeal. Id. A trial court's finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire record, is left with a definite and firm conviction that a mistake has been committed. Painter v. Kerr, 2009 Ark.App. 580, 336 S.W.3d 425. Due deference is accorded to the superior position of the trial court to view and judge the credibility of the witnesses; this deference is even greater in cases involving children, as a heavier burden is placed on the judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.

The Livelys have standing to petition for grandparent visitation because the marital relationship between Fitts and Jonathan was severed by divorce. Ark. Code Ann. § 9-13-103(b)(1) (Repl. 2015). Our grandparent-visitation statute provides there is a rebuttable presumption that a custodian's decision to deny or limit the petitioners' visitation is in the best interest of the child. Ark. Code Ann. § 9-13-103(c)(1). Petitioners bear the burden of rebutting that presumption by a preponderance of the evidence; to do so, the petitioners must show that they have established a "significant and viable relationship" with the children and that visitation with petitioners is in the children's best interest. Ark. Code Ann. § 9-13-103(c)(2)(A)–(B) (emphasis added).

Significant and Viable Relationship

We must first discuss whether the Livelys had a significant and viable relationship with K.L.1 and K.L.2, because if there is no significant and viable relationship, it is not necessary to make a best-interest determination. See Bowen v. Bowen, 2012 Ark.App. 403, 421 S.W.3d 339 (to rebut the presumption that the custodian's denial or limitation of visitation is in the best interest of the child, the petitioners are first required to establish by ...


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