FRANK MANNING, ET AL.
AMY EMMITT MANNING
Session January 28, 2015.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded. Appeal from the Chancery Court for Maury County. No. 13567. Jim T. Hamilton, Judge.
Jennifer F. Franks, Columbia, Tennessee, for the appellant, Amy Emmitt Manning.
L. Samuel Patterson, Columbia, Tennessee, for the appellees, Frank Manning and Brenda Manning.
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B. GOLDIN, J., and KENNY ARMSTRONG, J., joined.
J. STEVEN STAFFORD, JUDGE.
In this grandparent visitation case, the trial court awarded grandparents visitation with the child at issue, finding that there was " some deprivation" of visitation by the child's mother. We vacate the judgment of the trial court and remand for further proceedings to determine whether the child's mother opposed visitation, as that phrase is defined in Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219 (Tenn. Ct.App. Oct. 22, 2008).
Frank Manning (" Grandfather" ) and Brenda Manning (" Grandmother," and together with Grandfather, " Grandparents" ) are the paternal grandparents of the child at issue. The child's mother, Amy Emmitt Manning (" Mother" ) and the child's father (" Father" ) were married after the child was born and subsequently divorced. Father was convicted of stalking Mother and has no visitation with the child. It is undisputed that Father has been in and out of jail throughout the child's life.
After the alleged deterioration of the relationship between Grandparents and Mother, Grandparents filed a petition for grandparent visitation on October 18, 2013. Grandparents' petition alleged that Mother opposed their once frequent visitation with the child and asked that the trial court award them visitation " on a monthly basis on the weekends, time during summer,
spring and fall breaks." Grandparents also requested a pendente lite hearing to determine if they should be awarded temporary visitation pending the final resolution of the case.
Mother filed an Answer on October 31, 2012, denying that Grandparents were entitled to court-ordered visitation. In her answer, Mother argued, inter alia, that Grandparents' petition was merely a subterfuge to allow Father to obtain visitation with the child, and that she had never opposed visitation solely with Grandparents. On November 8, 2013, Mother filed a motion to dismiss Grandparents' request to hold a pendente lite hearing, which was granted by the trial court by order of February 13, 2014.
A trial was held on April 4, 2014. The child was nearly six years old at the time of trial. The testimony as trial was undisputed that Mother, her older child, and the child at issue resided with Grandparents for approximately twelve months shortly after the child's birth, from August 2008 to August 2009. Father was incarcerated during much of this time. Even after Mother moved from Grandparents' home, however, Grandmother would baby sit the child three days a week. In addition, Mother would visit Grandparents frequently and often stay overnight with the child. Even after Mother stopped her frequent overnight visits with Grandparents, Grandparents enjoyed frequent visits with the child, and kept him overnight often. In addition, until the child began school, Grandmother kept the child for two days during the week while Mother worked. Grandmother also testified that Mother and the child resided with Grandparents from July 2010 to February 2011, but Mother disputed that this occurred.
A central issue in the case is whether Mother opposed visitation. It was undisputed that Grandparents have had no overnight visitation with the child since June 2012. Grandmother testified that she frequently requested visitation with the child, but that Mother always responded that the child had plans. In contrast, Mother testified that Grandparents called infrequently to request visitation, but that when Grandparents did request visitation, Mother and the child's schedule could not accommodate the visitation. In addition, Mother testified that Grandparents only requested overnight visitation with the child and when Mother would suggest visitation at a park or a restaurant, Grandparents declined.
Although Grandparents were no longer permitted overnight visitation with the child after June 2012, Grandparents enjoyed frequent trips to the child's school for lunch during the 2012--2013 school year. On September 23, 2013, however, the child's school sent a letter home that stated that only those individuals who were listed as the child's emergency contacts would be permitted to have lunch at school with the child. Because Mother refused to permit Grandparents to be listed as emergency contacts for the child, they were no longer allowed to eat lunch with him at school.
Mother testified that she refused to allow Grandparents to be listed as emergency contacts, because this privilege would allow Grandparents to remove the child from school. Mother testified to an incident in the previous school year in which Grandmother and Mother had a misunderstanding as to whether Grandmother would pick the child and his older sister up from school. As such, Grandmother picked the child up from school without Mother's knowledge, which Mother testified
caused her significant anxiety because, for a period of time, she was unaware of where the children were. Grandmother did not deny that this incident occurred, but characterized the incident as a minor mis-communication. According to Grandmother, she and Mother previously discussed that Grandmother would retrieve the children from school. While Grandmother was away from home during the day, Mother called and left a message that Grandmother should not retrieve the children. Grandmother testified that she did not receive the message and proceeded to pick up the children as previously requested. Once Grandmother learned that she was not supposed to pick up the children, Grandmother testified that she immediately returned the children to their Mother. Grandmother testified that as a result of this incident and Mother's refusal to name Grandparents as the child's emergency contacts, Grandparents were unable to have lunch with the child during the 2013--2014 school year. Grandmother further testified that she was informed by the school that Mother could designate that Grandparents could have lunch with the child even without naming Grandparents as emergency contacts. Mother denied that this was an option.
Finally, Mother testified that there have been no adverse effects to the child since the child has been spending less time with Grandparents. Specifically, Mother testified that the child's sleeping and eating habits were not altered after the reduction in visitation, that the child was performing well in school, and that the child was a happy, normal child. Further, testimony showed that Grandparents still have considerable contact with their son, who Mother testified is involved with illegal drugs. Accordingly, Mother testified that it frightened her for the child to be around Father. Grandmother testified that so long as the court orders that Father is not allowed visitation with the child, Grandparents will follow that order and will not permit Father to be around the child. Mother expressed no concerns about the child's safety exclusively with regard to Grandparents.
At the conclusion of trial, the trial court took the matter under advisement. The trial court entered a lengthy written order on May 8, 2014. In the order, the trial court found that Grandparents established that the child had resided with Grandparents for twelve consecutive months prior to the cessation of the relationship by Mother. As such, the trial court ruled that Grandparents were entitled to " a rebuttable presumption that denial of visitation may result in irreparable harm to the child." The trial court further concluded that no evidence was presented that rebutted the presumption. The trial court further concluded that Grandparents demonstrated that because of the central role that Grandparents played in the child's life, Grandparents had shown that the child would suffer substantial harm through the cessation of the relationship. Finally, the trial court, expressly considering the factors outlined in Tennessee Code Annotated Section 36-6-307, found that continued visitation with Grandparents was in the child's best interests. Accordingly, the trial court awarded Grandparents visitation with the child one Friday evening every month and one continuous five-day period during the summer.
Mother filed a motion to alter or amend the trial court's ruling on May 20, 2014. On the same day, Mother filed a motion to stay the trial court's judgment pending resolution of the pending motion to alter or amend. The trial court denied Mother's motion to alter or amend on June 4, 2014. However, the trial court held that Rule ...