Malinowski v Farnam

Malinowski v Farnam (2001-165); 174 Vt. 527; 811 A.2d 177

[Filed 27-Aug-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-165

                             JANUARY TERM, 2002


  Andrea Malinowski	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Bennington Family Court
                                       }
  William Farnam, Jr. and	       }
  Luella and William Farnam, Sr.       }	DOCKET NO. 276-10-00 Bndm

                                                Trial Judge: David Howard

             In the above-entitled cause, the Clerk will enter:

       Andrea Malinowski, mother of two children, ages eleven and nine,
  appeals from an order of the Bennington Family Court, modifying but not
  eliminating a grandparent visitation order in favor of the paternal
  grandparents, Luella and William Farnam, Sr.  Mother challenges the
  constitutionality of Vermont's grandparent visitation statutes, 15 V.S.A.
  §§ 1011-1016.  We decline to reach the constitutional challenge and affirm.

       Mother and William Farnam, Jr., were married in 1990, and they were
  divorced in 1996 in New York, with mother receiving primary custody of
  their two children subject to father's visitation.  In October of 1997, the
  paternal grandparents petitioned for a visitation order pursuant to the New
  York grandparent visitation law.  At the time, mother lived with the
  children in Vermont, and father and the grandparents resided in New York. 
  In June 1998, all the parties settled the grandparent visitation proceeding
  by allowing the grandparents one week of visitation during each summer and
  one day of visitation during the father's weekend visitation on two
  weekends of each month.  The settlement was embodied in an order of the
  Rensselaer New York Family Court.

       Visitation occurred under the New York order until September 28, 2000,
  when mother filed a motion in the Bennington Family Court seeking to end
  grandparent visitation under the New York order.  Mother alleged that the
  grandparents were interfering with her parental decisions and that they
  failed to follow notification provisions in the order.  She further alleged
  that circumstances had changed since the time of the original order, in
  that at that time the father had not been communicating with the
  grandparents, while at the time of the motion the relationship was good and
  the grandparents could see the children during the father's scheduled
  weekend visits; that the schedule of visitation was difficult for the
  children; and that she had recently had a child of a new marriage and
  wanted the children subject to the order to spend more time with their new
  brother.  She never suggested that the grandparent visitation laws of
  Vermont or New York were unconstitutional.

 
     
       The court held hearings on the motion on February 28 and March 5,
  2001; the witnesses were mother, father and grandmother.  Following the
  evidence, the trial judge indicated that he was unsure of the standard for
  modification of a grandparent visitation order and invited the parties to
  address that question and any other by oral and written argument.  During
  the closing argument, mother's counsel made the following statement:

     Generally, regarding the best interest standard, your honor, and
    regarding the standards in this case, I think there is clearly,
    pursuant to the 14th Amendment due process clause, a component
    that provides heightened protection against governmental intrusion
    with certain fundamental rights, and I think this includes a
    parent's fundamental right to make decisions regarding the care
    and custody and control of their children.  This is not a
    grandparent's right but it's a parent's right.

     Andrea testified that she feels that this is no longer in the best
    interests of the children, and I think this court should place
    great weight on this testimony.  As it is - as I guess, first off,
    Andrea is fit to make that decision.  She is a parent that's fit
    to make - there's been no testimony that she's an unfit parent; so
    therefore, she's fit to make the decision as to what is in the
    best interest of her children

     And I would like the court [to] . . . have a case. . . .

     . . . .

     This is a United States Supreme Court case that was decided in
    June.  It is not on all fours with this case.  This is a State of
    Washington case, but in some ways, it's even more of an extreme
    situation than we have here. . . .

     . . . .

     [The Supreme Court] held that the [grandparent visitation] statute
    in question is - unconstitutionally it infringes on a parent's
    fundamental right to rear their children.

     And some of the arguments they made earlier are the arguments that
    the court made; that is, that it violated the mother's right to
    make decisions regarding concerning the care, custody, control of
    her daughter.  It cited the 14th Amendment's due process clause
    which includes a parent's fundamental right to make decisions
    concerning the care, custody and control of their children.  And I
    believe that this court must consider that right when considering
    the criteria set out in our statute.
   
 

     Because any friction between the grandparents and the parents -
    and there seems to be friction both with Mrs. Malinowski and her
    ex-husband, with his parents.  Any infringement by the
    grandparents into their zone is an infringement of their
    fundamental right, my client's fundamental right, and it can only
    lead to the conclusion that it's not in the best interests of the
    children.

  The case that mother's counsel provided the court was Troxel v. Granville,
  530 U.S. 57 (2000).

       The court granted the motion in part and denied it in part.  It cut
  the weekend grandparent visitation to one day per month and maintained the
  summer visitation.  Generally, the court rejected the mother's primary
  concern that the grandparents were interfering with her parental decision
  making and rights by allowing the children to watch certain television
  shows or by giving them items she did not want them to have.  The court
  found that the mother had not communicated her concerns to the
  grandparents.  The court did find, however, that changes in the children's
  activities made the Saturday grandparent visitation schedule inconvenient
  and that the good relationship between the grandparents and the father made
  it far more likely that the grandparents would see the children through the
  father.  These factors led to the modification decision.

       Mother makes two arguments on appeal: (1) Vermont's grandparent
  visitation statute is unconstitutional because it denies mother due process
  of law as set out in Troxel; (2) Vermont's grandparent visitation statute
  is unconstitutional as applied to this case.  For four interrelated
  reasons, we do not reach the issues briefed by mother and affirm.

       First, mother did not raise the issues she seeks to raise here in the
  family court.  See Jakab v. Jakab, 163 Vt. 575, 581-83, 664 A.2d 261,
  264-65 (1995); Varnum v. Varnum, 155 Vt. 376, 382-83, 586 A.2d 1107,
  1110-11 (1990).  At best mother's counsel argued that as a result of
  Troxel, the family court had to consider mother's due process right to make
  parenting choices "when considering the criteria set out in our statute,"
  (emphasis supplied), and "[a]ny infringement by the grandparents into [the
  parents'] zone is an infringement of their fundamental right, my client's
  fundamental right, and it can only lead to the conclusion that it's not in
  the best interests of the children."  Counsel declined the court's offer to
  submit a written memorandum of law to explain mother's legal position with
  respect to Troxel.  Counsel did not argue that the Vermont grandparent
  visitation statute was unconstitutional on its face, or even that it would
  be unconstitutional as applied if the court did not grant mother's motion. 
  Not surprisingly, the family court never ruled on the issues presented on
  appeal, likely because the judge never thought they were before him.
   
       Mother makes much of the fact that grandparents offered no evidence
  that she was unfit to make the decision to terminate and "no evidence was
  presented to overcome the presumption in favor of [mother's] fundamental
  right to make parenting decisions regarding her children's visits with a
  non-parent."  In fact, assuming the truth of this assertion, grandparents
  had no opportunity to offer such evidence because mother's counsel
  introduced the Troxel issue in closing argument only after the evidence was
  closed.  Mother's argument about lack of evidence only heightens our 

 

  sense that this record is inadequate to address the serious issues raised
  by Troxel, see Jakab, 163 Vt. at 582, 664 A.2d  at 265, and it would be
  unfair to the grandparents to do so.

       Second, mother attacks the Vermont grandparent visitation statute even
  though the order was issued in New York under a different statutory scheme. 
  The only relevance of the Vermont statute is that mother invoked it to
  support a termination of the New York order and now attacks its
  constitutionality to obtain relief.  The parties and the children reside in
  the same locations as they did when the New York grandparent visitation
  order was issued - mother and the children in Vermont, father and
  grandparents in New York. (FN1)  While the Vermont Family Court had
  jurisdiction to hear mother's motion, we believe her attack is more
  properly directed to the New York order and law, New York Domestic
  Relations Law § 72.  See Strouse v. Olson, 397 N.W.2d 651, 655 (S.D. 1986)
  (the law of Iowa, the state which issued the grandparent visitation order
  under its statute, controls in determining the validity of the order after
  Iowa law has changed).  We note that the New York courts have so far found
  the New York grandparent visitation statute constitutional under Troxel. 
  See Hertz v. Hertz, 738 N.Y.S.2d 62, 65 (N.Y. App. Div. 2002); Morgan v.
  Grzesik, 732 N.Y.S.2d 773, 776 (N.Y. App. Div. 2001).

       Third, the New York order resulted from a voluntary stipulation among
  the parties, and there were no findings initially.  See Buehrer v. Lambert,
  2002 WL 1371062 at *2 (Ohio Ct. App. 2002) (application of Troxel is
  different where parent seeks to rely on it to terminate a preexisting
  grandparent visitation order, entered by stipulation of the parties). 
  Although Troxel had not been decided at that time, the arguments on which
  the Troxel decision is based were clearly available then.  We recognize
  that a voluntary order can be modified but reliance interests and bonding
  issues are likely to arise over the years of compliance with the visitation
  order.  See id.; In the Interest of T.A., 38 P.3d 140, 143 (Kan. Ct. App.
  2001) (grandparents can rebut presumption required by Troxel by showing
  "that a substantial relationship has been established between the child and
  the grandparents" and that grandparent visitation is in the best interests
  of the child).  These factors were not explored because mother failed to
  raise the constitutional question before the evidence was submitted.  We
  note, however, that the family court found that one of the reasons the
  grandparents sought visitation in the first instance is that the children
  lived with the grandparents "[d]uring some of the early years of the
  marriage," and the grandparents often cared for the children while the
  parents worked.
   
       Finally, the family court's order attempted to respond to the mother's
  interests as the family 

 

  court understood them.  The court found that if the grandparents were
  interfering with mother's parenting decisions, they were doing so
  unintentionally because mother failed to communicate those decisions to
  grandparents.

       It is important to recognize the limits of mother's interests in this
  case.  She concedes that father can lawfully allow the grandparents to use
  part of his visitation time.  Yet, the grandparent visitation in issue
  appears to come entirely from father's visitation time.  Almost all the
  evidence was about the two Saturdays per month, now reduced to one Saturday
  per month, in which the grandparents exercised visitation.  Father
  otherwise had visitation for those weekends, and the grandparent visitation
  came from his visitation.  The week of grandparent visitation in the summer
  also apparently came from father's time because it defaulted to father if
  the grandparents failed to exercise it.

       Although father testified that it would be preferable if grandparent
  visitation were not governed by a court order, he never joined the motion
  to modify and has not entered this appeal.  Mother cannot rely on his
  rights to obtain the relief she desires.

       The day will come when we must judge the constitutionality of
  Vermont's grandparent visitation statute under Troxel v. Granville.  This
  is not that day.

       Affirmed.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

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                                  Footnotes


FN1.  The situation is different from that which we encountered in Cavallari
  v. Martin, 169 Vt. 210, 732 A.2d 739 (1999), where all parties subject to a
  child support order had moved from New York to Vermont, and the issue was
  whether the order terminated when the child reached 18 (the Vermont rule)
  or 21 (the New York rule).  We held that "[w]hen the parties, including the
  child, all move to this state, Vermont's courts are responsible for the
  welfare of the child, and New York no longer has a legitimate interest in
  the relationship."  Id. at 215, 732 A.2d  at 743.  Here, the grandparents
  and father remained in New York.