Shelida McKinney v. Harold McKinney , 175 So. 3d 590 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00614-COA
SHELIDA MCKINNEY APPELLANT
v.
HAROLD MCKINNEY AND KIM MCKINNEY APPELLEES
DATE OF JUDGMENT: 01/15/2014
TRIAL JUDGE: HON. TALMADGE D. LITTLEJOHN
COURT FROM WHICH APPEALED: PRENTISS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: DUNCAN L. LOT
ATTORNEY FOR APPELLEE: GREG E. BEARD
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED VISITATION TO APPELLEES
DISPOSITION: AFFIRMED – 09/29/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND FAIR, JJ.
IRVING, P.J., FOR THE COURT:
¶1. Shelida McKinney appeals from the decision of the Prentiss County Chancery Court
that granted Harold and Kim McKinney, the paternal grandparents of her minor children,
visitation with the children. Shelida argues that the chancellor erred in granting visitation
and in determining the extent of visitation.
¶2. Finding no error, we affirm.
FACTS
¶3. Harold and Kim are the parents of Shelida’s late husband, Jason McKinney, who died
in an automobile accident on August 22, 2012. Jason is survived by Shelida and their three
minor children: Kaylee, born on June 24, 2003; Zachary, born on April 10, 2005; and Kara,
born on July 23, 2009. On April 8, 2013, the grandparents filed a complaint against Shelida
to establish reasonable grandparent-visitation rights under Mississippi Code Annotated
section 93-16-3(1) (Rev. 2013). In Shelida’s answer, she denied the grandparents’ allegation
that she had denied them reasonable visitation with their grandchildren since Jason’s death
and asked the chancery court to dismiss the complaint. However, pending a hearing on the
grandparents’ complaint, the parties agreed to a temporary order allowing the grandparents
visitation on the first, third, and fifth Saturday of each month from 12:00 p.m. to 5:00 p.m.,
beginning August 17, 2013, and ending upon the chancery court’s final determination of
visitation.
¶4. When the matter was heard, Shelida testified that she had allowed the grandparents
to visit with the children when there was no conflict with the children’s schedule. She
testified that Monday was often the best day to schedule a visit because the rest of the week
was busy with after school activities, homework, and visits with friends. Shelida also
testified that when Jason was alive, the grandparents were not very involved with the
children, other than visits on special occasions and when she needed their help. Shelida
agreed that “it was a good idea for the kids to have a relationship with the [grandparents]”
but testified that the grandparents disrespected her authority as a parent. Shelida explained
that, on one occasion, the grandparents brought the children home past the time she had
asked for the children to be returned. She further explained that on a couple of occasions,
while the children were with their grandparents, the children were allowed to go “with
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[other] people without [her] permission . . . . [She did not] know where they [had gone].”
¶5. Harold testified that, while Shelida allowed them to see their grandchildren, they were
not allowed a “reasonable” amount of visitation. Harold further testified that, prior to Jason’s
death, they would see their grandchildren three or four times a week and that they all had a
close relationship. Harold stated that he and Kim lived about two miles from Shelida and the
grandchildren. He also stated that when they would attempt to visit after Jason’s death,
Shelida would turn them away because “[the children were] busy or doing something all the
time.]” Harold further stated that he was willing to take the children to their Saturday
activities if he and his wife were allowed visitation on that day. He could not recall ever
interfering with Shelida’s raising or disciplining of the children.
¶6. Kim testified that if she and Harold were awarded visitation, the children’s lives
would not be disrupted. She stated that she had a place where the children could sleep if
overnight visitation was granted. Kim acknowledged that she smoked, but stated that she
would not do so in front of the children. Kim further testified that Shelida offered Monday
afternoons for visitation with the grandchildren, but Kim did not get home from work until
6:00 p.m. on Mondays, making it difficult for her to see the children. She believed that
Shelida purposefully asked for that day, knowing that Kim would not be there. Kim also
testified that she once took care of her grandchildren for several days in a row when
Shelida’s job required her to be out of town. She agreed to respect Shelida’s wishes
regarding the disciplining of the children. Kim testified that Zach texted her until Shelida
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took his phone away. Kim acknowledged that the church she and Harold attended was
different from Shelida’s church, but she pointed out that the churches were affiliated and
provided the same message. Kim believed that it was in the best interest of the children for
the children “to spend a few days with them each month” so that the children could spend
some time with their cousins.
¶7. On cross-examination, Kim acknowledged that she had visited with the children after
Jason’s death. For example, she admitted taking Kaylee to a pumpkin patch and Kara to
church twice. Kim also acknowledged the children’s busy schedule and conceded that
Monday was the day they did not have any school-related activities. Upon further cross-
examination, Kim clarified—her contention was not that she and Harold were not getting to
see their grandchildren following Jason’s death but that the time with them was not quality
time. Kim also stated that the relationship between her and Shelida had deteriorated since
Jason’s death but that they had “never had a cross word.”
¶8. Several witnesses testified that the McKinneys were a tight-knit family. After the
hearing, the chancery court granted visitation to the grandparents every Monday afternoon
from 3:30 p.m. until 7:00 p.m.; the third weekend of every month from Saturday at 8:00 a.m.
until Sunday 4:00 p.m.; and one week during the summer, beginning on Monday at 8:00 a.m.
of the second week of July until the following Saturday at 8:00 p.m. The judgment also
prohibited all parties from smoking in the presence of the children. Following the issuance
of a supplemental order by the chancery court to clarify a transportation issue regarding the
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grandparents’ visitation, Shelida appealed.
DISCUSSION
¶9. “Absent an abuse of discretion, this Court will not reverse the decision of the
[chancery court].” Solomon v. Solomon, 980 So. 2d 319, 321 (¶2) (Miss. Ct. App. 2008)
(citation omitted). “This Court will not disturb the factual findings of the [chancery court]
unless [they] are manifestly wrong or clearly erroneous.” Id.
¶10. Shelida admits that the grandparents had a statutory right to petition the chancery
court for grandparent visitation, but she argues the chancery court erred in awarding
visitation to the grandparents because she already was allowing them to visit their
grandchildren. According to Shelida, the grandparents were required to show that she was
unreasonably denying them visitation with their grandchildren, and without such a showing,
the grandparents were not entitled to court-ordered visitation. She further argues that even
if visitation was properly allowed, the scope of it should have been limited to the amount of
visitation that the grandparents enjoyed prior to Jason’s death. Understandably, the
grandparents say that the chancery court did not err in any respect. We address these issues
in turn.
1. Did the chancellor err in granting grandparent visitation?
¶11. Mississippi Code Annotated section 93-16-3(1) (Rev. 2013) provides that “whenever
one (1) of the parents of a minor child dies, either parent of the child’s parents may petition
the . . . chancery court in the county in which the child resides, and seek visitation rights with
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the child.” Section 93-16-3(2) provides:
Any grandparent who is not authorized to petition for visitation rights pursuant
to subsection (1) of this section may petition the chancery court and seek
visitation rights with his or her grandchild, and the court may grant visitation
rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable
relationship with the child and the parent or custodian of the
child unreasonably denied the grandparent visitation rights with
the child; and
(b) That visitation rights of the grandparent with the child would
be in the best interests of the child.
¶12. It is clear from even a casual reading of the statute that the statute recognizes two
different categories of grandparents. The first category includes the grandparent of a minor
child who has lost one of his or her parents, section 93-16-3, subsection (1), and the second
category is a grandparent not described in subsection (1). In other words, the grandparent
of a child who has both parents living falls under section 93-16-3, subsection (2). It is also
clear from a reading of the statute that a grandparent falling under subsection (2) may petition
a chancery court for visitation, and the visitation may be granted, provided the court finds
that the grandparent meets the requirements of subsections (a) and (b) of section 93-16-3(2)
– that is, the grandparent has established a viable relationship with the child, the parent or
custodian of the child has unreasonably denied the grandparent visitation rights, and
visitation would be in the best interests of the child.
¶13. What is not clear from a plain reading of the statute is what prerequisite or
prerequisites must be met before visitation may be granted to a grandparent who petitions the
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chancery court under section 93-16-3(1) for visitation. Here, it is clear that the grandparents
fall in the first category of grandparents discussed above, because of the death of their son,
Jason. So the question is: are the grandparents required, as Shelida argues, to show that they
have been unreasonably denied visitation with their grandchildren when the subsection of the
statute authorizing them to petition for visitation is silent as to the prerequisite(s) for
granting visitation? The grandparents point out that the argument that Shelida makes here
was made and rejected in Zeman v. Stanford, 789 So. 2d 798, 802 (¶15) (Miss. 2001). We
agree. The chancery court did not err in finding that since the grandparents’ petition for
visitation was properly brought under section 93-16-3(1), the grandparents were not required
to meet the requirements of section 93-16-3(2). This issue is without merit.
2. Did the chancellor err in awarding the grandparents visitation
greater than the amount of visitation enjoyed by the
grandparents prior to Jason’s death?
¶14. Shelida next argues that even if visitation was warranted, the chancery court erred in
granting the grandparents more visitation than they exercised prior to their son’s death. She
stresses that the grandchildren did not visit with their grandparents more than two or three
times a week while Jason was alive, and she takes issue with the chancery court granting
overnight visitation since the children had rarely spent the night at their grandparents’ house
during Jason’s lifetime.
¶15. The Mississippi Supreme Court in Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss.
1996) (internal citations omitted), in expressing concern over excessive grandparent
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visitation, stated:
Natural grandparents have no common-law “right” of visitation with their
grandchildren. Such a right must come from a legislative enactment.
Although the Mississippi Legislature created this right by enacting [section]
93-16-3, it is clear that natural grandparents do not have a right to visit their
grandchildren that is as comprehensive as the rights of a parent.
¶16. For guidance, our supreme court has listed ten factors that should be considered in
determining grandparent visitation. The factors are as follows:
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;
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.
Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In arriving at the decision to grant the
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grandparents visitation, the chancery court considered the best interests of the minor children
and each of the Martin factors and ultimately fashioned a visitation schedule that took into
consideration the grandchildren’s weekly schedule. And regarding the summer visitation,
the court noted that it would grant visitation to the grandparents the second week in July so
that Shelida would be able to celebrate the Fourth of July holiday with her children. We find
nothing excessive about the amount of visitation ordered, and certainly nothing as
comprehensive as would be awarded to a noncustodial parent. Therefore, we find no error
in the decision of the chancery court. This issue is without merit.
¶17. THE JUDGMENT OF THE CHANCERY COURT OF PRENTISS COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL, FAIR, JAMES AND
WILSON, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.
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