IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00352-COA STANLEY R. BOLIVAR AND CINDY BOLIVAR APPELLANTS

v. JOYCE WALTMAN APPELLEE DATE OF JUDGMENT: 02/12/2013 TRIAL JUDGE: HON. FRANKLIN C. MCKENZIE JR. COURT FROM W HICH APPEALED: JONES COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: DEBRA LYNN ALLEN ATTORNEY FOR APPELLEE: SAMUEL S. CREEL JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: VISITATION GRANTED TO APPELLEE DISPOSITION: AFFIRMED - 06/07/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. BARNES, J., FOR THE COURT: ¶1. This appeal originates f rom a n order by the C h a n c e r y C o u r t o f J o n e s C ounty , awarding visitation of t wo m inor c hildren – Jason “Blake” W altm an, born O ctober 25, 2003, and Kay lee W altm an, born October 5, 2005 – to their paternal grandm other, J oy ce W altm an. Both children are w ards of their m aternal grandparents, Stanley and Cindy Bolivar, who were appointed by t h e c h a n cery court as the children’s co-guardians on May 18, 2008. The children’s natural p arents, Jason W altm an a n d Kare n C l a r k , have a history of prolonged substance abuse and consented to the appointm ent of the Bolivars as the co-guardians. 1

1 A f in a l j u d g m en t o f d iv o rce f o r Jaso n an d K aren w as en t ered o n A u g u st 2 4 , 2 0 0 6

.¶2. Initially , the Bolivars allowed Joy ce visitation w ith the g randchildren in accordance

with the v i sitation awarded to Jason in the couple’s 2006 divorce decree. B ut, in early 2010, the Bolivars began lim iting the visitation with Joy ce, decreasing it f rom every other weekend

to every other Saturday between 8 a.m . a n d 5 p .m . As a result, Joy c e f iled a petition f

or visitation privileges on April 9 , 2010. The chancery court entered an order on May 24, 2010,

aw a r d i ng certain visitation rights to Joy ce, which was term ed to be the “sam e visitation” previously awarded to her son, Jason. The B olivars appealed that decision to this Court, and

on April 3, 2012, we vacated the judgm e nt a nd rem anded f or f urther proceedings because the natural parents, whose parental rights had not b een t erm i nated, were not j oined as necessary parties to the action. Bolivar v. W altman , 85 So. 3d 335, 337 (¶¶8-9) (Miss. Ct. App. 2012). ¶3. On June 22, 2 0 12, Joy ce, along with her son, Jason, f iled a joint am ended petition f or grandparent-visitation priv i l e g e s . The chancery court granted tem porary relief on August 13, 2012, allowing her visitation with the children on the s econd w e e k e n d o f every m onth. A hearing was held on Novem ber 14, 2012, where Joy ce and Stanley presented testim ony . 2 The chancery court entered its order and f indings of f

act on February 5, 2013. Af ter considering the s tatutory requirem ents f or awarding g randparent visitation 3 and t h e a p p ropriate f

actors set f orth i n Martin v. Coop , 693 So. 2d 912 ( Miss. 1997), the chancellor a w a r d e d Joy ce

2 Jaso n atten d ed th e h e arin g . T h e ch an cello r n o ted in h is o rd er g ran tin g v isitatio n t h at K a ren “ w as ap p ro p riately n o ticed reg ard in g th e h earin g ,” b u t sh e w as n o t p resen t, n o r d id sh e f ile an y resp o n siv e p lead in g s.

3 S ee M iss. C o d e A n n . § 9 3 -1 6 -3 (R ev . 2 0 1 3 ). 2visitation of : ( 1) t he second weekend of every m onth; (2) Thanksgiving weekend of every
y ear f rom Friday at noon until the f ollowing Saturday at 5 p.m . ; (3) D ecem ber 18 through
Decem ber 24 on even-num

bered y ears; and Dece m b er 26 through J a nuary 1 on oddnum bered y ears, which is to take the place of the regular w eekend visitation. She was also granted a period o f visitation of one week during the sum m er, the tim ing of which is t o be agreed upon by

the parties. If

the parties cannot agree, the weekly visitation is to begin on the Sunday af

t ernoon of the June weekend o f visitation a nd continue until the f ollowing Sunday a t 5 p.m . The chancery court also set f orth several conditions or rules f or both sets of grandparents to abide by , including (1) not sm o king, drinking alcohol, or cursing around the chi l d r e n , (2) providing only age-appropriate gam es, and ( 3) supervising any visitation with the children’s natural parents. ¶4. The Bolivars f

iled a m otion f

or a new trial or, i n the alternative, to alter or am end the judgm ent on February 22, 2013, alleging several errors in the chancery court’s f i ndings. On February 5, 2015, th e c h a n c ery court denied the m otion, a nd t he Bolivars now a ppeal the
court’s decision. 4 Joy ce h as not f iled an appellee brief

. Generally , “the f

ailure of an appellee

to f i le a brief is t antam o unt t o a c onf ession of error a nd ordinarily would be accepted as such and the judgm ent of t he court below would be reversed.” N .E. v. L.H. , 761 S o. 2d 956, 962

4 T h e tw o - y e ar d elay i n ad d ressin g th e m o tio n ap p ears to b e rel a t e d t o v ario u s m o tio n s f iled b y b o th p a r t i e s , i n clu d in g a m o tio n b y th e B o liv a rs to d ep o se th e ch ild ren ’s co u n selo r, w h ich w as re-n o ticed sev eral tim es, an d to i n tro d u ce ad d itio n al ev id en ce. A d d i tio n ally , Jo y ce’s co u n sel w ith d rew (retired ), an d sh e w as aw ard ed tim e to h ire n ew co u n sel. 3( ¶ 1 4 ) ( M i ss. Ct. A pp. 2 000) (quoting Green v. Green, 317 So. 2d 392, 393 (Miss. 1975) )

.

“However, w hen m atters on appeal touch the welf are of a m i nor child, then regard l e ss of whether a party f

iled a brief

, t h i s Court will ‘reach t he m erits of the issues in t his appeal, though we proceed unaided b y a brief f rom the appellee.’” Id

. (quoting Allred v. Allred, 735 So. 2d 1064, 1067 (¶9) (Miss. Ct. App. 1999)). ¶5. Finding no error, we af f irm

. STANDARD OF REVIEW ¶6. Unless we f

ind t h a t a c h a n c e r y c ourt’s determ ination regarding visitation and its restrictions is m anif

estly wrong or constitutes a n abuse of discretion, we are bound to accept its f indings. L ofton v
. Lofton , 176 So. 3d 1184, 1186 ( ¶ 5 ) ( M i s s . C t

. App. 2015) (citation

om itted). “Chancellors are af f o rded w ide latitude in f ashioning equitable r e me d i es in dom estic relations m atters, and their decisions w ill not b e reversed if the f indings of f

act are supported by substantial c redible evidence in the record.” Id

. (quoting W alley v. Pierce, 86
So. 3d 918, 920 (¶8) ( Miss. Ct. App. 2011)). Questio n s o f l a w , however, are reviewed de

novo. I d

. DISCUSSION
I. Whether the c hancery court erroneously shifted the burden of proof to the B olivars to prove w hy they opposed t h e visitation dem anded by Joy ce. ¶7. The Bolivar s c o n t end that the chancellor “erred as a m atter of law by n ot requiring Joy c e to produce evidence that she was entitled to have court[

- ] o r dered v isitation with the

4children.” Mississippi Code Annotated section 93-16-3 establishes the statutory g uidelines

f or determ ining grandparent visitation. The f irst guideline, set f

orth i n subsection (1) is not relevant to t he present case, as it concerns “when a gr a ndparent can show h is or her own child has not been a warded custody of the grandchild, has had parental rights term inated, or has died.” Aydelott v. Quartaro , 124 So. 3d 97, 1 00 ( ¶9) (Miss. Ct. App. 2013) (citing Miss. Code Ann. § 93-16-3(1)). Subsect i o n (2) provides t hat a grandparent m ay petition f or visitation “when a grandparent has shown: (1) tha t a ‘ viable relationship’ w ith h is or her grandchild has been established, (2) that visitation with t he grandchild has been unrea s o n a b ly denied by the grandchild’s parent, and (3) that visitation i s i n t h e b e s t interest of the grandchild.” Id. (citing Miss. Code Ann. § 93-16-3(2)). ¶8. I n i t s fi n d i ngs of f

act, the c hancery court recited the appropriate statutory requi r e m e n t s and concluded that Joy c e had supported t h e c h i l d ren f inancially and “has had f requent visitation including o vernight visitation f or a period of t im e b e y o nd that prescribed by
statute.” The Bolivars argue that Joy ce was not required b y the court to p rove that she had established a viable r elationship with the chil d r e n , that the Bolivars had “unreasonably denied” her visitation, or that the visitation would be in the children’s best interest.
A. W hether Joyce establish e d s h e had a viable r e lationship with the children. ¶9. A “viable relationship” is def ined by section 93-16-3(3) as f

ollows: [ T]he term “viable relationship” me a ns a relationship in which the grandparents or either of them have voluntarily and in good f aith supported the child f inancially in whole o r in part f or a p eriod of not less than six (6) m onths
5bef

ore f iling any petition f

or visitation rights with the c hild, the grandparents have had f requent visitation including occasional o v e r n i g h t v i s i tation with said child f o r a period of not less than one (1) y ear, or the child has been cared f or by the grandparents or either of them over a signif icant period of tim e during the tim e the parent has b een in jail o r on m ilitary d uty that necessitates the absence of

the parent f

rom the hom e . The chancellor noted that at the hearing on the prior action in 2010, Joy ce t estif ied she had paid Jason’s child support until 2010, when the Bolivars “began to restrict Joy ce’s visitation.” Joy c e also testif i ed that she bought the children clothes, f ood and gam es when they visited her. The B olivars c ontend there is no evidence that she voluntarily supported the children, but adm it that she “m ay have g iven [ the Bolivars] som e m oney .” T hey argue that it was unclear whether she was pay ing child support. ¶10. W e f

ind that the reason f

or any f inancial contributions m ade by J o y ce t o s u pport her grandchildren does not m atter. S e ction 93-16-3(3) m akes no d istinction – it m e r ely states that the grandp a r e nt “ ha[ s] voluntarily and i n g ood f aith supported the child f inancially in

w h o l e o r i n part f

or a period of not less than six (6) m onths bef ore f iling any petitio n f

o r visitation r ights with t he child.” (Em phasis added). The chancellor f ound that Joy ce m et this requirem ent, and we f

ind no abuse of

discretion in his f

inding. ¶11. The Bo l i v a r s a l s o a rgue that Joy ce only procured her visitation with the children through her erroneous representation to them t h a t s h e w a s entitled to i t under the law. Regardless of

how she obtained visitation, we f ind that Joy ce m et the requirem ent that she have f requent, including overnight, visitation with the children f or m ore than one y ear. This issue is without m erit.
6B. W hether Joy ce failed to present proof that the Bolivars unreasonably denied her visitation. ¶12. T h e Bolivars argue that Joy ce “never m et her burden of proof to sho w t h a t s h e h a d been unreasonably denied visitation.” The Bolivars reason that since Joy c e was never entitled to the sam e v isitation awarded to Jason, any restricting of v isitation with the children

was not “ u nreasonable,” and they were m erely “ e xercis[ ing] their rights and p er f orm [ ing] their duties as lawf

ully appointed guardians” b y l im iting the v isitation. However, the Bolivars acknowledge that they tried to “cut back contact between the children and Joy ce” and “ sought to lim it [ v isitation] to every other S aturday f r om 8:00 a.m . until 5 :00 p.m .” This

was due to their “desire that the children attend church on Sunday m ornings, in light of the
f act that Joy ce . . . w a s n o t

. . . hom e on Friday nights, and in light of Joy ce[ ’s] clearly directing the children, by her own adm issio n, to withhold inf orm a tion f

rom Cindy and Stanley [ .]” ¶13. The chancellor m ade no d e t a i l e d f i n d i n g s i n t h is r egard, except to note that the Bolivars began to r estrict Joy c e’s visitat i o n i n 2 010. The chancellor f urther noted that Stanley “ likes to be in control” and “wishes t o m icro-m anage” how the children spend their tim e with Joy ce. Stanley p rovided no specif ic testim ony as to why the visitation was decreased in 2010, but sim ply acknowledged that he did not l ike the children to s pend m ore than a couple of nights with J oy ce because “she d on’t have the s am e . . . rules that we have.”
It is apparent that Sta n l e y was restricting visitation sim p ly because he f

elt it disrupted the
f am ily ’s schedul e , a n d h e d i d not approve o f Joy ce’s f ailure to take the children to church
7every Sunday that she had t hem

. Furtherm ore, as Joy ce noted at the hearing, in order to get

the visitation that she had enjoy ed prior to 2010, she had to f ile the action and “go through

a lot.” She also noted that the B olivars will occasionally not a ns w e r the phone and f ail to return her calls. ¶14. W e conclude the evidence supports a f inding that the Bolivars unreasonably denied visitation to Joy ce. C. W hether granting v isitation with Joyce was i n the children’s best i n t erest a nd the chancery court erred in its a pplication of the Mar t i n factors. ¶15. T h e c h a

n cery court concluded that “ because of the close r elationship the c h ildren h a v e previously

enjoy ed with Joy ce, the [ c]ourt f i nds that it is in the best interest of the children that s uch visitation o c cur[ .]” The Bolivars argue that “am ple evidence w as presented as to why it is not in the best interest of the children to have such unf ettered, f requent and lengthy contact with Joy ce.” ¶16. In determ ining w h e t h e r g r a n d p a r e n t v i s itation is in a child’s best interests, the chancery court mu s t c o n s i d e r the f actors set f

orth by Martin , 693 So. 2d at 9 16. These
f actors include, but are not lim ited to:
1. The a m ount of disruption that extensive v i s i t a t i o n w i l l have on the child’s lif

e. This includes disruption of s chool activities, s um m er activit i e s , as well as any d isruption that m ight take place b etween the natural parent and the child a s a r e s u l t of the child being away f rom hom e f o r extensive lengths of

tim e . 2. The suitability of the grandparents’ hom e with respect to the a m ount of supervision received by

the child.
83. The age of the child.
4. The age, and phy sical and m ental health of the grandparents.
5. The em otional ties between the grandparents and the grandchild.
6. The m oral f

itness of the grandparents.
7. The distance of

the grandparents’ hom e f rom the child’s hom e. 8. Any

underm ining of

the parent’s general discipline of the child.
9. E mp l o y

me n t o f the grandparents and t he responsibilities associated with that em

ploy m ent. 10. The w illingness of the grandparents to accept tha t the rearing o f the child is the responsibility of t he parent, and that the parent’s m anner of child rearing is not to be interf ered with by

the grandparents. Id

. ¶17. The Bol i v a r s r e f

u te t he chancellor’s f

i nding that v isitation w ith Joy c e “[ did] not
appear to have becom e a disruption until this litigation began.” Their a r g u me nt m ainly

centers around their desire f or the children to atten d t h e B o l i v ars’ regular church every Sunday , asking J oy ce to bring the children to the church on the weekends that she has them

. Joy c e , w ho lives seventeen m iles away , a t t e n d s a dif f erent church, although she acknowledged that she does not take the children to her church “all t he tim e.” The only other purported disruption is that Cindy cancelled t he children’s doctor appointm ent i n the sum m er
to a ccom m odate Joy ce’s visitation. Upon review, although the Bolivars claim that the record is f ull of exam

ples o f t he disruptive nature of the visitation, we m ust agree with the chancellor’s assessm ent that these instances are “m inor.”
9¶18. As to the o ther applicable f a c t o r s , the chancery c ourt noted that, at the tim e of the hearing, Joy ce w as f

if ty

- seve n y e a r s o ld, and reported no p hy sical or m ental issues or any crim inal history

. In r e gard to the suitability of J oy ce’s hom e , she testif ied that she has lived in a t wo-bedroom m obile hom e f or the last several y ears, and t he c ourt was satisf ied that the children had s u i t a ble accom m odations. A lthough J oy ce i s a s m oker, she testif i ed that she tried not t o sm oke when the children were visiting. Joy ce s a i d t h at she does not drink alcohol. H er hom e is located only seventeen m iles f rom the Bolivars’ hom e, so distance is

not an i ssue. The court also noted that while J oy ce is em ploy ed at B u mp ers Drive-In a s a

m anager f

ive to six day s week, she t estif ied that s he is a b l e t o s c h e d u l e her work around visitation with the children, earning three weeks of vacation a y e a r. ¶19. The Bolivars argue t hat Joy ce had encouraged the children t o lie to them , although the only specif

ic i n stance they

could ref er to was the f

a ct that Joy c e bought Blake a cell phone and did n ot “ask[ ]their perm ission” or tell them

. Stanley insisted that the children would tell lies to him upon returning hom e f rom Joy ce’s, but he p rovided n o details except to assert that “I can look at their ey es and kinda tell” when the children are not telling the truth. Stanley also noted that Blake telling lies was “an ongoing issue.” ¶20. M o s t of the Bolivars’ objections to Joy ce are due to the f act that sh e a l l o w e d t h e children contact with their f ather, Jason, who Stanley claim s was not a good “role m odel” because he “do[ es n ot] believe i n God.” W e f ind nothing in the record to i ndicate that Jason

was p rohibited f

rom seeing the children. And a lthough Joy ce a dm itted that she let Jason and

1 0his girlf

riend stay at her hom e on one occasion when the children w ere there, she assured the chancery court that situation w o u l d n o t occur in the f uture. J o y ce also acknowledged that when Stanley told her not to l et Blake play video gam es one weekend as punishm ent, she did

not abide by that wish. But, again, she stated that was only one o cca s i on, and she has generally abided “by what [ Stanl e y ] said.” The chancellor concluded t hat it would be dif f icult f or Joy ce to m e et all the Bolivars’ requirem ents, as it i s apparent f r om his testim ony that Stanley has very h igh expectations and likes “to m icro-m anage the t im e Joy ce spends with her grandchildren.” ¶21. The c hancellor appropriately considered the a p p l i c a b l e M a r t i n f actors in t his case, and

we f ind n o abuse of discretion in his f inding that awarding visitation to Joy ce was in the children’s best interest.
II. Whether the chancery c ourt’s aw a rd o f v isitation to Joy c e w as ex cessive. ¶22. The Bolivars contend that the chancery court e rred in awarding visitation t o Joy ce equivalent to t hat a natural parent would receive. The Mississippi S uprem e Court has held

t h a t “visitation granted to grandparents should not be equivalent to that which would b e granted to a non-c u s t o d i al parent unless the circum stances overwhelm ingly dictate that it should be.” Martin , 693 So. 2d at 916. ¶23. N o n e t h e l e s s , “ w h e n a chancello r f i n d s t h a t t h e r e a r e c i r c u ms t a n c e s t h a t ‘overwhelm ingly dictate’ that a grandparent s hould be awarded equivalent visitation to that of a parent, those f

indings m ust be f ully discussed o n the record.” T ownes v
. Manyfield, 883
1 1So. 2d 93, 97 (¶29) (Miss. 2004). In Arrington v. Thrash , 122 So. 3d 1 4 4 , 1 4 9 (¶¶20-21)

(Miss. Ct. App. 2013), this Court considered whether the chancery court abused its discretion in a warding “liberal visitation” t o t he child’s paternal grandparents ( “eighty day s of weekend and sum m ertim e vacation, plus extensive holiday visitation”), which was sim ilar to that of

a custodial parent. The child’s f a ther was deceased, and the g randparents h a d h elped care f or the child since she was a baby

. Id . at 146 (¶¶3, 5). W e noted that Martin m ade it clear that “‘equivalent visitation’ was not a starting point, but that it could be a n ending point only in appropriate cases.” I

d

. at 1 5 0 (¶22). W e upheld the chancellor’s decision, noting the unstable hom e environm ent provided by the natural m other and the grandparents’ extensive participation in the child’s lif e. I d . at 150-51 (¶¶26-27). ¶24. In awarding visitation to Joy ce, the chancery court recognized that it “ m ay be close

to what is allowed a non-custodial parent.” A f ter d iscussing the Martin f actors, it c oncluded that “because o f t he close relationship the childre n have previously enjoy ed with Joy ce, . .

. it is i n the best interest of t he children that s u ch visitation o ccur and

. . . i t would be harm f ul

to the chil d r e n n o t t o g r a nt it.” Until 2010, J o y ce had enjoy ed the sam e visitation as that awarded t o Jason. Although the Bolivars ar gue that she w as not e n titled to that m uch visitation, it does not change t he f act that she h as m aintained a close r elationship with her grandchildren. F urtherm ore, the children have m inim a l contact w i th their n a t u r a l p a rents. Accordingly , we f

ind no abuse of

discretion in the chancery court’s f indings.
III. Whether t he chancery court should have given deference t o t he Bolivars to ex ercise their discretion as to how m u ch visitation J oy ce
1 2should be allow ed to have.

¶25. The Bolivars argue that, as the custodial guardians, they should have been entitled “to

som e def erence” by the c hancellor “to determ ine how m uch visitation Joy c e had with the

m inor children.” H owever, t he suprem e court has addressed this issue in W oodell v. Parker , 860 So. 2d 781, 787-88 (¶¶22, 27) (Miss. 2003), holding: There is no language in [ section 93-16 -3(2)] suggesting that the custodial parent’s opinion with regard to what is “in the best interest of the c hild” i s to receive som e s ort of “ def e rence” or that f

indings a s to the f

itness of a parent are to be m ade. H owever, u nder applicable case law, we f i nd that “def

erence” is af f orded to t he opinion of a “natural parent” involved i n a visitation d ispute under this nature.

. . . . Although w e have def

erred to the opinions and judgm ents o f “natural parents” when it concerns the am ount of visitation to be a f f o rded grandparents, we have not provided that “custodial adoptive grandparents”

. . . should be a f f o rded the sam e presum

p tions under the grandparents’ visitation rights statutes.
In the present case, t he Bolivars are not the c h ildren’s parents; they are their court-appointed guardians. The rights of neither n a tural parent have been term inated. Thus, we f ind no m erit to this argum ent, and we af f irm the chancellor’s judgm e nt. ¶26. T H E J U D G M E N T OF THE CHANCERY COURT OF JONES C O U N T Y , SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL C OSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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