Brice v. Brice

SONNER, Judge. Appellant, Lisa Brice (“Lisa”), brings this appeal from an Order of the Circuit Court for Washington County granting visitation to the grandparents of Lisa’s minor child, Kayla Brice. On appeal, Lisa raises three issues: 1. Did the trial court err by denying appellant’s Motion to Dismiss or for Summary Judgment based on the unconstitutionality of § 9-102 of the Family Law Article? 2.

Did the trial court err by awarding visitation to appellees after granting appellant’s Motion for Judgment? 3. Did the trial court err by granting visitation pendente lite after the hearing on exceptions to the Master’s findings and recommendations? ³⁰⁴ Based on the United States Supreme Court’s recent decision in Troxel v. Granville, — U.S. -, 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), we hold that the application of the Maryland Code, Family Law § 9-102 unconstitutionally violated Lisa’s due process rights. Therefore, we reverse the judgment of the lower court. Kayla Brice was born on January 8, 1997, and is the only child of Lisa and James Brice.

James died in an automobile accident on October 2, 1997. Shortly after James’s death, Susan Brice, James’s mother, was on psychiatric leave from her employment 1 and asked Lisa if she could provide daycare for Kayla, which Lisa declined. On November 5, 1997, James’s parents, Larry and Susan Brice (“the Brices”), appellees, and Susan Brice’s mother, Dorothy Long, filed Civil Complaints in the Magistrate Court of Berkley County, West Virginia, alleging that Lisa would not return their property. 2 On December 9, 1997, the Brices filed a Complaint to Establish Grandparent Visitation Rights, alleging that Lisa denied them visitation with Kayla since James’s .death. Lisa’s Answer to the Complaint denied that she had refused the Brices visitation with Kayla, and stated that she “has continually encouraged reasonable and appropriate visitation by the [Brices] with their granddaughter, Kayla____” At the hearing before a Family Law Master on June 1, 1998, Susan testified that from the time of James’s death on October 2, 1997, until the end of 1997, she “would get to see ³⁰⁵ [Kayla] maybe once a week for a little bit but after that it was less and less.” She further testified that a visitation schedule was set up in January 1998 that allowed the Brices to see Kayla every other Wednesday from 6:00 p.m. to 8:00 p.m. and every other Sunday from 1:00 p.m. to 4:00 p.m. 3 However, Susan testified that this was not enough time and that she would like to see Kayla “every week ... at least for a few hours” and “maybe a weekend visit now and then” so that the Brices could take Kayla up to their cabin over a hundred miles away in Western Maryland.

Susan also testified that, during the visits, as long as Kayla could see her mother, she would fuss and cry to be with her mother. Lisa testified that she told the Brices they could visit Kayla anytime and has never denied them the right to see Kayla. She testified that she wanted to be present during the visits because Kayla was experiencing separation anxiety, “crying when Susan takes her out the door,” and sleeping restlessly after the visits. Lisa also testified that she is not comfortable with Kayla spending the night with someone other than herself, that she has a “very strained” relationship with the Brices, and that she learned the Brices might file a grandparent visitation suit against her just four days after James’s funeral.

She stated that she did not believe it was in Kayla’s best interest for there to be court-ordered visitation and that she was willing to continue visitation without a court order. At the conclusion of the hearing, the Master recommended: Visitation every other Sunday from 1 p.m. to 4 p.m. in [the] presence of [Lisa]. Review if requested by parties no sooner than 6 months. No smoking in proximity of child.

Both parties filed exceptions to the recommendations. In addition, Lisa filed a Motion to Dismiss or for Summary Judgment, arguing that § 9-102 of the Family Law Article, the grandparent visitation statute, is facially unconstitutional as an unwarranted infringement of her rights under the Ninth and Fourteenth Amendments to the United States Constitu ³⁰⁶ tion and the Maryland Declaration of Rights. Specifically, she argued that the statute unconstitutionally permits visitation to be awarded absent a showing of potential harm to the child and absent a denial of visitation. The court held a hearing on the exceptions on August 21, 1998, granted visitation as outlined by the Master, and ordered the parties to participate in mediation. .

The court held a trial on the merits on September 17,1999, granted Lisa’s Motion for Judgment, and found that the Brices: failed to meet their burden of producing affirmative evidence that the schedule of visitation proposed would be detrimental to the interests of the child, which is the Court’s only focus in a case such as this. So the Court will adopt the schedule of visitation proposed by the mother and grant the motion for judgment. The schedule will be, once again, alternating Sundays for three hours, with Lisa slowly removing herself from the location of visitation; two or three times per month, as agreed upon by the parties, in addition, including the Plaintiffs and the holiday plans of the child, as agreed upon by the parties for grandparental contact and access; reasonable telephone contact; and exchanging information with the grandparents relating to the child’s activities, to allow the grandparents to attend those activities. The court asked Lisa’s counsel to prepare an Order, and counsel submitted an Order dismissing the Brices’ Complaint.

Instead of entering the proposed Order dismissing the Complaint, the court issued an Order “establish[ing] a schedule of visitation proposed by [Lisa]” as set forth above. 4 This appeal followed. ³⁰⁷ We find that this case falls squarely under the Supreme Court’s decision in Troxel v. Granville. In Troxel , Tommie Granville and Brad Troxel had two daughters. In May 1993, Brad committed suicide. In December 1993, Brad’s parents, Jenifer and Gary Troxel, petitioned the Washington Superior Court for Skagit County for the right to visit their two granddaughters, pursuant to § 26.10.160(3) of the Revised Code of Washington, which stated: Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings.

The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances. The Troxels requested two weekends of overnight visitation per month and two weeks of visitation during the summers. Granville did not oppose visitation and conceded that grandparent visitation was in the best interests of the children, but, instead, asked the court to order one day of visitation per month with no overnight stay. The Superior Court granted the Troxels visitation one weekend per month, one week ³⁰⁸ during the summer, and four hours on the Troxels’ birthdays.

Granville appealed to the Washington Court of Appeals, which reversed the lower court’s decision and dismissed the petition, holding that the Troxels lacked standing. The Troxels appealed to the Washington Supreme Court, which held that, although the Troxels had standing to seek