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In re Cathey

August 24, 2007

IN THE MATTER OF THE MINOR CHILD REBECCA A. CATHEY.
VIKKI SPENCER AND ELLIS SPENCER, APPELLANTS,
v.
STEVEN E. CATHEY, APPELLEE.



Appeal from Johnson district court; THOMAS E. FOSTER, judge.

SYLLABUS BY THE COURT

1. Before granting grandparent visitation, the trial court is required to find that it is in the best interests of the child and that a substantial relationship exists between the child and the grandparents.

2. The burden of proof in granting grandparent visitation is upon the grandparents.

3. A trial court should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for that of the parent, absent a finding of unreasonableness.

4. When deciding the reasonableness of grandparent visitation with a child whose parent is deceased, the trial court must consider the totality of the circumstances, the child's best interests, and whether there is a substantial relationship between the child and the grandparents.

5. The payment of costs and attorney fees in grandparent visitation actions is governed by K.S.A. 38-131.

The opinion of the court was delivered by: Marquardt, J.

Affirmed in part, reversed in part, and remanded with directions.

Before MALONE, P.J., GREEN and MARQUARDT, JJ.

Ellis and Vikki Spencer appeal the trial court's decision regarding visitation with their granddaughter, Rebecca A. Cathey. We affirm in part, reverse in part, and remand with directions.

Steven E. Cathey and Holli Spencer were married in January 1998. Rebecca was born to the Catheys in November 2001.

The Catheys' marriage was extremely tumultuous. Holli filed protection from abuse petitions in January 2002 and September 2003. Each time Holli filed a protection from abuse petition, she also filed a petition for divorce. A petition for divorce was pending when Holli was killed in a car accident in August 2005.

The record on appeal contains criminal complaints filed against Steven in September and October 2003. Steven violated the protection from abuse orders. He was convicted of violating the order and was placed on 12 months' probation. At least one motion to revoke his probation was filed because he had violated the terms of his probation. The affidavits filed by Holli in support of the protection from abuse petitions stated that Steven threatened to kill her, threw her down the stairs, tried to suffocate her, punched her in the head while nursing Rebecca, choked her until she lost consciousness, and threatened to leave the state with Rebecca. Steven was ordered to participate in anger management counseling.

After each protection from abuse hearing and the divorce filings, Holli and Rebecca lived with Holli's parents, Ellis and Vikki Spencer. This meant that Rebecca lived the majority of the 4 years of her life with the Spencers. Vikki cared for Rebecca during the summers while Holli was working, and helped a great deal with Rebecca's nightly bedtime routine. The Spencers paid for Holli's attorney fees, spent thousands of dollars for Holli and Rebecca's housing and food costs, paid the $5,000 down payment on Holli's home where Steven now lives, and paid a $1,000 judgment against Steven.

Rebecca and Holli had been living with the Spencers when Holli was killed. Even though a divorce was pending at that time, Steven testified that he and Holli were on "great terms." At this same time, Steven had a girlfriend, Katie, who was pregnant with his child. He was planning to marry Katie; however, that is no longer the plan.

Immediately after Holli died, Steven went to the Spencers' home. He allowed Rebecca to stay with the Spencers, stating that he needed to "make sure that we had--that I had her room ready to go . . . make sure the refrigerator was up-to-date, you know, medicine cabinet, toothbrushes, tooth paste, towels, bedding, I mean everything that she would need to be up there full time. And at the same time I was trying to transition her from being down there to being up here because she had been down there for an amount of time."

According to Steven, he had discussions with the Spencers concerning Rebecca living with him and visitation with the Spencers. Steven stayed with the Spencers in Fort Scott for 12 days during the month of September 2005. Vikki claimed that at that time, they had an agreement with Steven for Rebecca's visitation with them. Vikki testified that Steven proposed the plan and they were "thrilled" and "had not anticipated anything so generous." Vicki testified that Steven was to take Rebecca to Fort Scott for gymnastics through the end of the session on November 29th. They would have nightly phone calls with Rebecca. She would spend 2 or 3 weekends per month with the Spencers from Thursday at 11:30 a.m. when she got out of preschool until Sunday around 6 p.m. She would spend 1 or 2 weeks at a time with the Spencers in the summer, and they would have extended visits when Vikki was out of school for Thanksgiving, Christmas, spring break, and other holidays. She was to spend Halloween in 2005 with them. Steven and Rebecca planned to spend Christmas with the Spencers.

Vikki testified that the plan worked for a couple of weeks, but then the phone calls began to diminish by the week of October 10. Vikki testified:

"He [Steven] had previously said instead of his being down there on the 31st for Halloween, as he had originally intended, he was not going to be doing that, but she could be there for the weekend as planned. And then he called Friday night and said to bring her back Saturday afternoon, which we did. And the next weekend was a weekend she should have been coming to Fort Scott, according to the plan. He called at 9:30 that morning to tell me he had changed his mind and we couldn't pick her up."

Steven testified that the visitation started with "two weekends, because I was working every other Saturday." He stated that "we had originally discussed, you know, the Halloween, Thanksgiving and Christmas, but life happens. Things changed. The circumstances have changed and so--I mean, what was said didn't end up happening through no fault of anybody."

The Spencers tried to discuss a visitation schedule with Steven to no avail. Steven admits that he refused to talk with them. Steven would not answer the phone when they called. When the Spencers left messages for him to return their calls, he refused to do so. Steven testified that he cut off all communication with the Spencers in November because "she [Rebecca] needs to know where her home is and so I needed to give her and me that time in order to form that bond." Steven allowed Rebecca to telephone her grandparents during this time.

Because Steven had stopped all communication with the Spencers, in early December 2005 the Spencers filed a petition for grandparent visitation. While the motion was pending, the trial court ordered that the Spencers could visit with Rebecca in Steven's Kansas City home on every other Sunday from 1 to 3 p.m., which meant a 170-mile round trip from Fort Scott to Kansas City for a 2-hour visit with Rebecca. They were also allowed visitation from 10 a.m. to 2 p.m. on Christmas Eve, and telephone calls on Sundays and Wednesdays between 5 to 8 p.m., with calls to be initiated by Steven. Ellis testified that Steven allowed the Spencers, cousins, and great grandparents to go to Steven's house to visit with Rebecca for 4 hours on Christmas Eve so long as they brought their own lunch. An order for mediation was entered on February 17, 2006, which was unsuccessful.

At trial, the Spencers proposed visitation for one weekend per month, with "weekend" defined as Friday through Sunday evening, one weekend per month with "weekend" defined as Saturday at 9 a.m. through Sunday at noon, a few "non-consecutive" weeks in the summer, one phone call per week at minimum, and additional time around holidays and Rebecca's birthday if those events did not coincide with a regularly scheduled visit.

At trial, Steven proposed, and the trial court ordered, that the Spencers have unsupervised contact with Rebecca for a period of 7 hours every other month, plus a telephone call between 5 p.m. and 7 p.m. on Thursdays with the calls initiated by Steven. If the Spencers missed the call for any reason, they forfeited the right to the call. The Spencers were allowed "visitation with the minor child within ten (10) days, for a four (4) hour period, before or after the minor child's birthday and the Christmas, Thanksgiving and Easter holidays so long as that month is not a regularly scheduled month." The order included the following list of restrictions for Rebecca's grandparent visits:

"a. The minor child shall not be asked to call any child or children of Respondent 'step' or ...


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