Bomgardner, In re

Bomgardner, In re
1985 OK 59
711 P.2d 92
Case Number: 61329
Decided: 07/16/1985
Modified: 02/25/1986
Supreme Court of Oklahoma

IN RE CHERIE ANNE BOMGARDNER.

Appeal from the District Court, Cormanche County, William M. Roberts, Judge.

¶0 Relief was denied in a suit by grandparents for access to their deceased daughter's underage offspring then in the custody of the natural father.

REVERSED AND REMANDED.

Robert G. Perrine, Messrs. Talley, Perrine & Smith, Norman, for appellants.

Warren H. Crane, Lawton, for appellee.

OPALA, Justice.

[711 P.2d 93]

¶1 The dispositive issue for review is whether a grandparent's claim for access and companionship of their deceased daughter's offspring, which arose before it became remediable under 10 O.S. 1981 § 5 ,

¶2 The grandparents' daughter, killed by her husband, was survived by a one-year old child. After the mother's death the child's father refused to allow them access to her. The grandparents brought this suit, asserting that they had a statutory claim to the companionship of their grandchild under 10 O.S. 1981 § 5 . The father demurred to the petition. He asserted, and now argues here, that the grandparents' claim is governed by the provisions of 10 O.S.Supp. 1978 § 5 ,

¶3 Extant case law has confined grandparental claims of access to those conferred by statute.

I

HISTORY OF 10 O.S. 1971 § 5

¶4 With the 1971 amendment of § 5, grandparents were given standing to assert a claim for access to their offspring only when one or both parents is deceased.

¶5 This court interpreted § 5 in the Matter of Fox,

¶6 To remove the textual impediments found to be present in Fox, the legislature amended § 5 in 1978 to provide for grandparental claim of access when "both parents are deceased or if they are divorced". Paragraph 3 of the 1978 version authorized grandparental access if one natural parent is deceased and the surviving natural parent remarries, with the added proviso that any subsequent adoption proceeding will not terminate the grandparental rights of the decedent's parents unless so ordered by the trial court.

[711 P.2d 95]

¶7 In 1981 this court promulgated Julien v. Gardner,

¶8 Lastly, in 1982, we held in Matter of K.S., T.W. & G.S.

¶9 As expressed by the First Circuit Court of Appeals, "it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before".

II

REMEDIABILITY OF CONDITIONS IN EXISTENCE BEFORE A REMEDY FOR THEIR CORRECTION CAME TO BE ENACTED

¶10 Although statutes are generally presumed to operate prospectively and not retroactively,

¶11 According to the father, the relief affordable by § 5 must be confined to grandparental complaints which arose after they became remediable by that section; claims that owe their existence to an event which occurred before a remedy for its correction came to be enacted into law are to remain nonactionable. In essence, the father maintains that because at the time of the mother's death - the critical remedy-triggering event - the grandparents had no recognized statutory claim to access, he now has a "vested right" in the continued state of his child's alienation from its grandparents. The constitutional shield from impairment or invasion of a person's "accrued, acquired or established" interest by after-enacted legislation is extended to "a matured cause of action or some legal authority to demand redress".

¶12 Given the history of 10 O.S. 1971 § 5 , we conclude that the legislative purpose and design will be accomplished if the 1981 version is applied to situations in existence at the time of its enactment. This view is also consistent with extant case law in which the statute has been so applied.

III

PRIOR APPLICATION OF THE § 5 AMENDMENTS

¶13 Extant case law has interpreted the § 5 amendments to govern grandparental quests in existence at the time of enactment. In the Matter of K.S., T.W. & G.S.

¶14 In Application of Grover

¶15 Lastly, in Looper v. McManus,

IV

THE CHILD'S BEST INTEREST

¶16 The phrase "best interest of the child" is commonly used by the legislature and this court as a test for granting or withholding visitation.

¶17 Court supervision over the welfare of children is equitable in character.

¶18 We hold that the maternal grandparents do have standing - both under the statute and in equity - to assert a claim for access and companionship of their offspring.

¶19 The trial court's refusal to entertain the claim is reversed; the cause is remanded with directions to allow the grandparents to prosecute their quest for visitation. The merits of their claim are to be gauged by application of time-honored equitable considerations.

¶20 DOOLIN, V.C.J., and HODGES, LAVENDER, HARGRAVE, WILSON, KAUGER and SUMMERS, JJ., concur.

¶21 SIMMS, C.J., dissents.

Footnotes:

1 See footnote 13, infra.

2 See footnote 10, infra.

3 Okl., 628 P.2d 1165, 1167 [1981].

4 Julien v. Gardner, supra note 3 at 1166.

5 Arbitrariness is minimized and the goal of impartiality furthered by harmony and consistency which represent "positive values in a legal system". J. Sutherland, Statutes and Statutory Construction § 53.01 [Sands 4th ed. 1972].

6 Okla.Sess.L. 1971, c. 82 § 1. The terms of 10 O.S. 1971 § 5 provided in pertinent part:

". . . [W]hen one or both parents are deceased, any grandparent, who is the parent of the child's deceased parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child. The district courts are vested with jurisdiction to enforce such visitation rights and make orders relative thereto, upon the filing of a verified application for such visitation rights . . ."

7 Okla.Sess.L. 1975, c. 185 § 1. The terms of 10 O.S.Supp. 1975 provided in pertinent part:

"* * * When one or both parents are deceased or if they are divorced, any grandparent, who is the parent of the child's deceased or divorced parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child . . ."

8 Okl., 567 P.2d 985, 987 [1977].

9 Matter of Fox, supra note 8 at 986.

10 Okla.Sess.L. 1978, c. 71 § 1. It was provided by 10 O.S.Supp. 1978 § 5 in pertinent part:

"* * * When both parents are deceased or if they are divorced, any grandparent, who is the parent of the child's deceased or divorced parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child . . .

When one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any grandparental rights belonging to the parents of the deceased natural parent unless ordered by the court and after opportunity to be heard, provided the district court deems it is in the best interest of the child."

11 Julien v. Gardner, supra note 3.

12 Julien v. Gardner, supra note 3 at 1167.

13 Okla.Sess.L. 1981, c. 273 § 1. It was provided by 10 O.S. 1981 § 5 in pertinent part:

"* * * When one or both parents are deceased or if they are divorced, any grandparent, who is the parent of the child's deceased or divorced parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child."

14 Okl., 654 P.2d 1050, 1052 [1982].

15 Okla.Sess.L. 1984, c. 82 § 1. It is provided by 10 O.S.Supp. 1984 § 5 (C) in pertinent part:

"C. If the parental rights of one parent have been terminated and the child is in the custody of the other natural parent, any person who is the parent of the person whose parental rights have been terminated may be given reasonable rights of visitation where the court determines that a previous grandparental relationship has existed between the grandparents and the child and the district court determines it to be in the best interest of the child . . ."

16 Johnson v. United States, 163 Fed. 30 [1st Cir. 1908].

17 Bohn v. Divine, Okl.App., 544 P.2d 916, 919 [1975]; Becknell v. State Industrial Court, Okl., 512 P.2d 1180, 1183 [1973].

18 Wickham v. Gulf Oil Corp., Okl., 623 P.2d 613, 616 [1981].

19 Wickham v. Gulf Oil Corp., supra note 18 at 616.

20 Wickham v. Gulf Oil Corp., supra note 18; In re Marriage of Bouquet, 16 Cal. 3d 583, 128 Cal. Rptr. 427, 429, 546 P.2d 1371, 1373 [1976].

21 Wickham v. Gulf Oil Corp., supra note 18.

22 Art. 5 § 54, Okla. Const. Accrued right, as used in § 54, Art. 5, Okla. Const., may be defined as a matured cause of action or some legal authority to demand redress. Mid-Continent Casualty Co. v. P & H Supply, Inc., Okl., 490 P.2d 1358, 1361 [1971]; Barry v. Board of County Commissioners, 173 Okl. 645, 49 P.2d 548, 549 [1935]. "A `vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right. It may be created either by common law, by statute or by contract. Once created, it becomes absolute, and is protected from legislative invasion by Art. 5, Secs. 52 and 54 of our Constitution." [emphasis supplied]. Oklahoma Water Resources Board v. Central Oklahoma Master Conservancy District, Okl., 464 P.2d 748, 755 [1969].

23 [a] A parent's status vis-a-vis its child is not a property right in the general sense but more in the nature of a legal condition which is subject to contest and regulation by the state. Carignan v. State, Okl., 469 P.2d 656, 659 [1970]. [b] In a controversy to determine the effect of legislation changing the age of majority upon the support provisions in a divorce decree entered before the effective date of the enactment, the Arizona Supreme Court held that majority or minority is but a status - as distinguished from a vested right fixed at birth - which the legislature has full power to reshape or change. A claim to child support was deemed to be no more a vested right than the status upon which it depends. The legislative act - silent as to its effect on existing support orders - was held to be neither prospective nor retrospective. Rather, it was viewed as operating to affect all minors from and after its effective date. Stanley v. Stanley, 112 Ariz. 282, 541 P.2d 382, 383 [1975].

24 Supra note 14.

25 Okl., 681 P.2d 81, 83 [1984].

26 Application of Grover, supra note 25 at 83.

27 Julien v. Gardner, supra note 3.

28 Okl.App., 581 P.2d 487, 489 [1978].

29 See footnotes 6, 7, 10 and 13 supra. Johnson v. Johnson, Okl., 681 P.2d 78, 79-80 [1984].

30 Johnson v. Johnson, supra note 29 at 80.

31 Looper v. McManus, supra note 28 at 488.

32 Guardianship of Sherle, Okl.App., 683 P.2d 78, 80 [1984].

33 Looper v. McManus, supra note 28 at 488.

SIMMS, Chief Justice, dissenting:

¶1 The right of grandparents to visit their grandchildren exists only by reason of statute. There is no equitable claim or right to such visitation, and the Court, in my view, errs in stating otherwise.

¶2 The statute which governs this right of visitation, is, and must be, that statute which is in effect at the time grandparents file their application for visitation. To hold [711 P.2d 98] that the rights are fixed by the date parents die or become divorced would create arbitrary classes of grandparents. Also of course, the continuation of the right depends on the continuation of the statute. If the legislature repealed 10 O.S. 1981 § 5 , grandparents would no longer have a right to seek visitation, regardless of how the statute read at the time their child died or became divorced.