Herbst v. Sayre

OP ALA, Justice,

dissenting from Part IV of the court’s opinion and concurring in judgment.

¶ 1 The court holds today that the provisions of 10 O.S.Supp.1996 § 5(A)(1)1 violate fundamental law when they are invoked for application to an intact nuclear family in which grandparental visitation is opposed by both parents. I am unable to join the court in declaring that the critical statute, when applied to this controversy, is infirm.2

I

THE ANATOMY OF CONTROVERSY

¶ 2 Invoking the terms of 10 O.S.Supp. 1996 § 5(A)(1), Christopher Herbst sought a district court decree affording him access to his daughter’s child. His daughter and her husband, living as an intact nuclear family, object to any contact with the petitioning grandparent. The precise reasons for their opposition are unknown, but the relationship between Herbst and his family has been severely strained. Herbst seems to have failed in cultivating important family ties. He is divorced from his wife. Both of his daughters, who are alienated from him, refuse to accede to his plea for access to their children. Herbst is a complete stranger to the grandchild with whom he seeks visitation.

¶ 3 The trial court “dismissed ” Herbst’s application, stating that, absent a showing of “harm to the minor,” the court has no authority to interfere with the parental rights to custody and control. The trial judge viewed the terms of 10 O.S. § 5(A)(1) as preventing him from “judicially legislating” any parameters of grandparental visitation based upon some notion of equity. The Court of Civil Appeals affirmed, declaring the invoked statute to be unconstitutional as applied to an intact nuclear family in which grandparental visitation in contest is opposed by both parents.

II

THE BAR OF PRUDENTIAL RULE

¶ 4 The court today offends the time-honored prudential rule of state and federal *401jurisprudence by casting on the grandparen-tal visitation statute an unwarranted cloud of constitutional infirmity. According to the prudential rule, constitutional issues must never be reached in advance of strict necessity. It is imprudent to shape decisional law in terms broader than those dictated by the precise facts to which a legislative act is to be applied. Where the relief sought may be afforded (or withheld) upon alternative grounds, consideration of constitutional challenges should be avoided as inappropriate. This is the essence of the judiciary’s self-erected “prudential bar” of restraint.3

Ill

THE PROVISIONS OF 10 O.S.1996 § 5(A)(1), AS THEY ARE SOUGHT TO BE APPLIED TO THE FACTS OF THIS CASE, ARE NOT CONSTITUTIONALLY INFIRM.

¶ 5 The statute in contest does not operate in this case as an impediment to a denial of grandparental visitation. Available to grandparents are both statutory and equitable claims for visitation with grandchildren.4 A nisi prius denial of Herbst’s quest for access is supported in this case by the weight of the evidence. The trial court’s decree is not clearly contrary to the weight of adduced proof. Herbst has no equities in his favor. Though related to them by blood, he is a total stranger to his immediate family and to the grandchild in contest.

¶ 6 As the court declares today, the relationship between parent and child must indeed be treated as paramount. It warrants judicial protection. This can be accomplished in the case before us without violating the prudential bar of restraint. We simply need to apply the time-honored notions of equity jurisprudence. A correct decree will be affirmed although the reasons given for the decision are incorrect.5

IV

SUMMARY

¶ 7 Because Herbst’s claim for access can be denied on grounds consistent with the principles of chancery jurisprudence, consideration of § 5(A)(l)’s constitutional validity is clearly unnecessary and hence inappropriate. In short, I do not share the court’s view that the critical statute in question, when invoked for application to this case, offends any part of either federal or state fundamental law.

¶ 8 I hence dissent from Part IV of the court’s opinion and concur in its judgment.

. The provisions of 10 O.S.Supp.1996 § 5(A)(1) are:

Pursuant to the provisions of this section, any grandparent of an unmarried minor child shall have reasonable rights of visitation to the child if the district court deems it to be in the best interest of the child. The right of visitation to any grandparent of an unmarried minor child shall be granted only so far as that right is authorized and provided by order of the district court.

This is the version of the statute that was in force when the claim came before the court. The present version, adopted in 1997, differs slightly from that which was invoked in this case. See 10 O.S.Supp. 1997 § 5(A)(1).

. While I am expressing no opinion about the facial infirmity of the section in contest or about its constitutional validity in the context of other scenarios, I am unable to conclude, as the court appears to have done, that the statute commands courts either to afford grandparents access to an intact nuclear family or in any other familial setting.

. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); I.N.S. v. Chadha, 462 U.S. 919, 975, 103 S.Ct. 2764, 2796, 77 L.Ed.2d 317 (1983) (White, J., dissenting); Clay v. Independent School District No. 1 of Tulsa County, 1997 OK 13, 935 P.2d 294, 318 (Opala, J., dissenting); In re Initiative Petition No. 347 State Question No. 639, 1991 OK 55, 813 P.2d 1019, 1037 (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., 1987 OK 3, 732 P.2d 466, 467 n. 3; Schwartz v. Diehl, 1977 OK 115, 568 P.2d 280, 283; Dablemont v. State Dept. of Public Safety, 1975 OK 162, 543 P.2d 563, 564.

. See In re Bomgardner, 1985 OK 59, 711 P.2d 92, 97.

. See Price v. Walters, 1996 OK 63, 918 P.2d 1370, 1385 n. 14; Willis v. Nowata Land and Cattle Co., 1989 OK 169, 789 P.2d 1282, 1286-87; Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, 685 n. 23; Utica Nat'l Bank and Trust v. Associated Prod. Co., 1980 OK 172, 622 P.2d 1061, 1066; Holloway v. Ward, 84 Okl. 247, 203 P.217, 219 (1922).