Schwartz v. Lobbs

Cite as 2016 Ark. App. 242

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-871

Opinion Delivered May 4, 2016
GREG SCHWARTZ AND ELIZABETH
SCHWARTZ APPEAL FROM THE SALINE
APPELLANTS COUNTY CIRCUIT COURT
[NO. DR-2015-225-1]
V.
HONORABLE BOBBY
McCALLISTER, JUDGE
RALPH LEE LOBBS
APPELLEE REVERSED AND REMANDED

M. MICHAEL KINARD, Judge

Greg and Elizabeth Schwartz appeal from an order denying their petition for

grandparent visitation with their thirteen-year-old grandson. They argue that the trial court’s

order is defective in that it failed to state the factors considered in reaching the decision and,

alternatively, that the court misapplied the appropriate factors and clearly erred in denying

their petition. We find merit in the first point and reverse and remand for a specific written

order. We do not address the second point.

Appellants are the maternal grandparents of thirteen-year-old J.L. Appellee is the

child’s father. J.L.’s parents divorced when the child was very young, and J.L. and his mother

soon moved into the same home with appellants. They stayed there for at least eight years,

between the time that J.L. was two and the time that he turned ten. By all accounts,

appellants were heavily involved in all aspects of J.L.’s daily life, and the relationship was a

close one. When J.L. was ten years old, his mother died, and his father, appellee, assumed
Cite as 2016 Ark. App. 242

custody of J.L. Appellants unsuccessfully sought an emergency guardianship of J.L. at that

time. For the next three years, J.L. and his father and stepmother lived about thirty minutes

away from appellants. Appellee allowed appellants to have regular visitation every other

weekend and for longer periods during summer vacations. J.L. and appellants texted or

spoke on the telephone daily.

In late 2014, appellee moved to Louisiana for his job but would come home to

Arkansas on the weekends. Over the next couple of months, tension between J.L. and his

stepmother began to rise, and J.L. would complain to appellants. In March 2015, appellants

filed a petition for emergency custody of J.L., alleging that he was the victim of physical,

verbal, and psychological abuse. In the alternative, appellants sought grandparent visitation

pursuant to Ark. Code Ann. § 9-13-103. Appellee then stopped allowing visitation with

appellants and moved J.L. to Louisiana with him. A short time later, the stepmother and her

teenaged daughter also moved to Louisiana.

After a preliminary hearing, the trial court found that no emergency existed and that

any alleged problems appeared to have been remedied. Therefore, the court denied the

petition for custody pending a final hearing.

A few months later, a full hearing was held. Appellants testified to the facts outlined

above. They further stated that they had not been allowed to see or talk to J.L. for about

four months and that appellee had not responded to their attempts to discuss with him the

possibility of renewed visitation. They also claimed that they were willing and able to

cooperate with appellee.

2
Cite as 2016 Ark. App. 242

Appellee testified that he did not deny appellants visitation until after they sued him

a second time. He stated that the family situation is much better since the move to

Louisiana. He testified that his hours and income have improved. He testified that J.L. is

happier, more confident, involved in activities at school, and making good grades. Appellee

further stated that J.L.’s relationship with his stepmother is much better since the move, and

he did not think that visitation was in J.L.’s best interest at this time.

J.L. testified that he missed his grandparents and would enjoy spending time with

them. However, he also indicated that appellants did not like his stepmother, and that he

did not like her “because of my grandparents.” He stated that appellants told him that they

did not like “the way [the stepmother] handled things and the kind of person she is.” J.L.

described himself as being “in the middle” when he was living in Arkansas and visiting

appellants on a regular basis. He admitted that he had exaggerated when he described to his

grandparents his problems with his stepmother. J.L. further testified that he liked his new

school, was making all As and Bs, and had made new friends. He also stated that, since the

move to Louisiana, he and his stepmother had worked out their differences and that their

relationship had improved.

After the hearing, the trial court made brief oral comments regarding the burden of

proof and the evidence. A written order was entered simply stating that the petition was

denied.

Appellants first contend that the trial court erred in failing to comply with the

requirement in Ark. Code Ann. § 9-13-103(f)(1) (Repl. 2015) that the order denying the

3
Cite as 2016 Ark. App. 242

request for grandparent visitation state in writing “any and all factors considered by the court

in its decision.” We agree.

Arkansas’s statute on grandparent visitation provides in pertinent part as follows:

(b) A grandparent or great-grandparent may petition a circuit court of this state for
reasonable visitation rights with respect to his or her grandchild or grandchildren or
great-grandchild or great-grandchildren under this section if:

(1) The marital relationship between the parents of the child has been severed by
death, divorce, or legal separation;

....

(c)(1) There is a rebuttable presumption that a custodian’s decision denying or
limiting visitation to the petitioner is in the best interest of the child.

(2) To rebut the presumption, the petitioner must prove by a preponderance of the
evidence the following:

(A) The petitioner has established a significant and viable relationship with the
child for whom he or she is requesting visitation; and

(B) Visitation with the petitioner is in the best interest of the child.

(d) To establish a significant and viable relationship with the child, the petitioner must
prove by a preponderance of the evidence the following:

(1)(A) The child resided with the petitioner for at least six (6) consecutive months
with or without the current custodian present;

(B) The petitioner was the caregiver to the child on a regular basis for at least
six (6) consecutive months; or

(2) Any other facts that establish that the loss of the relationship between the
petitioner and the child is likely to harm the child.

4
Cite as 2016 Ark. App. 242

(e) To establish that visitation with the petitioner is in the best interest of the child,
the petitioner must prove by a preponderance of the evidence the following:

(1) The petitioner has the capacity to give the child love, affection, and guidance;

(2) The loss of the relationship between the petitioner and the child is likely to
harm the child; and

(3) The petitioner is willing to cooperate with the custodian if visitation with the
child is allowed.

(f)(1) An order granting or denying visitation rights to grandparents and great-grandparents shall
be in writing and shall state any and all factors considered by the court in its decision to grant or
deny visitation under this section.

Ark. Code Ann. § 9-13-103 (emphasis added).

Aside from stating that a hearing was held at which the various parties appeared, the

order in this case simply states that appellants’ petition “is hereby denied.” We are aware that

our courts have addressed the merits of grandparent-visitation issues in Oldham v. Morgan, 372

Ark. 159, 271 S.W.3d 507 (2008), and Harrison v. Phillips, 2012 Ark. App. 474, 422 S.W.3d

188, despite the lack of proper written findings. However, in each of those cases, the

appellate court held that, given the lack of evidence in the record, there were no findings that

could have been made to support the trial court’s conclusion. Here, on the other hand, it is

not entirely clear that the case had to be decided only one way as a matter of law. Therefore,

as is the case when there is a lack of compliance with similar statutes or rules requiring specific

written findings or reasons for certain judicial actions, we conclude that the trial court’s failure

in this instance requires reversal and remand. See, e.g., Davenport v. State, 2011 Ark. 105

(failure to provide written findings conclusively showing petitioner entitled to no relief under

Ark. R. Crim. P. 37 where no hearing was held); Ryburn v. Ryburn, 2014 Ark. App. 108, 432

5
Cite as 2016 Ark. App. 242

S.W.3d 102 (order’s failure to state payor’s income, refer to child-support guidelines, and

recite whether award deviated from the family-support chart as required by Ark. Sup. Ct.

Admin. Order No. 10); Arkansas Department of Human Services v. A.M., 2012 Ark. App. 240,

423 S.W.3d 86 (failure to make written findings per Ark. Code Ann. § 9-12-333 regarding

certain issues in a family-in-need-of-services case); Wadley v. Wadley, 2012 Ark. App. 208,

395 S.W.3d 411 (failure to state reasons in decree, as required by Ark. Code Ann. § 9-12-315,

for not dividing marital property equally).

Reversed and remanded.

VIRDEN and HARRISON, JJ., agree.

Jones Law Firm, by: F. Parker Jones III, for appellant.

No response.