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Robison v. Pinto

Court of Appeals of Kentucky

September 27, 2019

VAN ROBISON AND VERIA ROBISON APPELLANTS
v.
JUSTIN PINTO; WILLIAM BROWN; AND ANDY BESHEAR, ATTORNEY GENERAL OF KENTUCKY APPELLEES

          APPEAL FROM PULASKI CIRCUIT COURT HON. JUDGE DAVID TAPP ACTION NO. 07-CI-00501.

          BRIEF FOR APPELLANT: Bruce W. Singleton Somerset, Kentucky

          BRIEF FOR APPELLEE: Ralph D. Gibson Somerset, Kentucky

          BEFORE: DIXON, MAZE, AND SPALDING, JUDGES.

          OPINION

          SPALDING, JUDGE.

         Lisa and Justin Pinto, the mother and father of I.P. and R.P., respectively, were divorced in 2006. As part of the divorce, Lisa and Justin executed a property settlement agreement, wherein it was agreed that Lisa would enjoy sole custody of their children. The property settlement agreement further provided that, in the event of either Lisa or Justin's death, the survivor would assume sole custody of the couple's children. Eventually, Lisa moved to North Carolina.

         In 2007, Lisa married William Brown. In 2016, Justin filed a motion to modify custody, essentially seeking to be awarded sole custody of the children. Lisa opposed any modification of custody. However, in July of 2016, Lisa died as a result of long-standing health complications.

         On June 10, 2016, Lisa's parents (the "Robisons"), along with Lisa's husband, appellee William Brown, filed a motion to intervene in the action. Subsequently, on May 24, 2018, William filed a motion for sole custody of the children. On August 1, 2018, the circuit court entered a final judgment. Justin's motion to modify was granted, but William's motion for sole custody was denied. Therefore, Justin was awarded sole custody of the children.

         On August 10, 2018, the Robisons filed a motion to amend the prior judgment to include grandparent visitation pursuant to KRS[1] 405.021(1). In their motion, the appellants did not specifically mention the revisions to the grandparent visitation statute, effective July 14, 2018. The circuit court[2] held a hearing on the matter on October 17, 2018. Although the circuit court found that the testimony had established, among other things, that the Robisons had kept in regular contact with the children, had maintained a relationship with them throughout their life, and had regularly assisted their daughter with the children, the court nonetheless dismissed the Robisons' motion for grandparent visitation. The court's dismissal was based upon its reading of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), which led to its determination that KRS 405.021(1)(b) and (c) are unconstitutional. We disagree that Troxel and Walker mandate that result and, therefore, reverse the judgment.

         This case has a rather convoluted procedural history. After appellee Brown[3] lost in his quest to be granted sole custody of the children, the appellants herein filed a last-second motion for grandparents' visitation, citing KRS 405.021(1). Essentially, the court below allowed the motion to be heard because it was within the ten-day time period upon which judgments can be modified by the issuing court. It then held an evidentiary hearing.

         After holding an evidentiary hearing, the circuit court issued an order requiring that a notice of this motion be served pursuant to KRS 418.075 on the Attorney General's office because the appellee was contending that a statute was unconstitutional. That notice was filed by appellee. The Attorney General's office made no response to that notice. The trial court then entered an order denying the motion for grandparents' visitation on the grounds that a portion of the Kentucky grandparent visitation statute, KRS 405.021(1)(b) and (c), was unconstitutional. This appeal followed.

         Problematic in that decision is the fact the circuit court did not analyze the claims of the appellants pursuant to the provisions of KRS 405.021(1)(a). Walker did not hold grandparent visitation to be unconstitutional, per se, but provided an evidentiary process by which the statute was constitutional. The court's order did not evaluate the evidence under Walker's interpretation of that portion of statute. It assumed its denial of the claims of the appellants in the constitutional arguments made therein resolved the case in total and dismissed the claim.

         However, in their appeal, the appellants do not raise the issue of whether the Pulaski Circuit Court erred in not reviewing the evidence for this petition under the standards of Walker. Questions "not argued in the briefs, will not be considered by the Court of Appeals." Service Financial Company v. Ware, 473 S.W.3d 98, 103 (Ky. App. 2015). Because the appellants have not asserted that the trial court was in error for the above-stated reason, we will not address that issue on this appeal. The appellants have in their brief argued that KRS 403.021(b) and (c) are constitutional. We will address that issue on this appeal.

         The Kentucky grandparent visitation statute, KRS 405.021, now provides what are essentially three avenues for a grandparent to seek visitation. First, subsection (1)(a) provides that the "Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so." Second, subsection (1)(b) states that a "rebuttable presumption [arises] that visitation with the grandparent is in the best interest of the child" if "the parent of the child who is the son or daughter of the grandparent is deceased" and the grandparent can show a "pre-existing significant and viable relationship with the child."[4] Finally, subsection (3) provides that a "Circuit Court may grant noncustodial parental visitation rights to the grandparent of a child if the ...


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