Lead Opinion
| Appellant Stephanie Spivey Daniel brings this appeal from the divorce decree entered by the Circuit Court of Woodruff County, wherein the court granted appel-lee Darrell Spivey visitation rights to appellant’s daughter, who was born of a previous marriage. For reversal, appellant contends that the circuit court erred in ruling that appellee stood in loco parentis to the child. We agree and reverse.
The child at the heart of this appeal, S.B., was born on June 13, 2003, to appellant and her former husband, Jeremy Bunch. When appellant and Bunch divorced in 2004, the decree placed custody of S.B. with appellant, while granting Bunch the right to reasonable visitation and ordering him to pay child support. Appellant began dating appellee in 2005. Initially, the two engaged in a long-distance relationship, as appellant lived in Monticello where she attended college, while appellee resided in Batesville. In 2006, appellant moved to the community of Peach Orchard, and in 2007, she purchased a home in McCrory. The parties |2lived together in that home, although appellee continued to maintain his separate residence in Batesville.
On January 17, 2009, appellant and ap-pellee married. However, twenty months later, appellant filed for divorce on August 17, 2010. In his answer and counterclaim for divorce, appellee requested visitation with S.B., alleging that he was entitled to this privilege because he had stood in loco parentis to the child for the past five years. The parties entered into a property-settlement agreement, leaving appel-lee’s request for visitation as the only contested issue.
The record of the hearing established that appellee’s job as a welder involved long hours and required travel that kept him away from home, sometimes for several weeks. However, there were also times that he remained off work for extended periods. In her testimony at the hearing, appellant acknowledged that appellee spent the majority of his time with her and S.B. when he was not working. Further, appellant admitted that S.B. loved appellee and that appellee also cared for S.B. She said that appellee accompanied her and the child on S.B.’s first days of kindergarten and first grade and that he attended a parent-teacher conference when S.B. was in the first grade. Appellant stated that appellee helped S.B. with homework when he was available. She testified that she had left the child overnight with appellee a few times when she was out of town. She said that appellee did not pay any medical, dental, or daycare bills on behalf of S.B. and that he did not provide her with medical insurance. Appellant testified that ap-pellee contributed $1,000 per month toward expenses but[athat this sum also was used to pay his health insurance and bills associated with his home in Batesville. She said that Bunch exercised visitation at least once a month and that she objected to appellee’s request for visitation because S.B. had a mother and a father and was already pulled between two households.
Bunch also testified in opposition to ap-pellee’s request for visitation. He said that S.B. called him “dad” or “daddy,” and he felt that allowing appellee structured visitation would be confusing to S.B. Bunch also testified that he paid child support of $93 per week and that he exercised visitation with S.B. as often as he could.
During his testimony, appellee offered a number of photographs of him and S.B. hunting, fishing, frog gigging, and attending a fair. He testified that he contributed $1,000 per month toward expenses, sometimes bought groceries, and paid “some child care.” He also testified that he once bought S.B. a pair of shoes at Walmart and that he had paid a doctor bill. Appel-lee also said that he picked up S.B. from daycare on occasion and that he had attended her pre-kindergarten graduation and an event called “dads for donuts.” He testified that S.B. had called him “daddy” before, but he said that she used the nickname “nickel pickle” that came about because she could not pronounce his name. Appellee stated that, when he was at home, it was his evening job to give S.B. a bath and to brush her teeth. He said that he and S.B. have a “loving, strong, relationship like a father and a daughter have.” He testified that he should have visitation with S.B. because “I’ve been the only father” and because S.B. trusts and depends on him.
|4Appellee also presented the testimony of witnesses who had observed the interaction between appellee and S.B. Each testified that appellee and the child shared an affectionate “father-daughter” type relationship. Joyce Powell, who operated the daycare center S.B. had attended, testified that appellee had picked up the child from daycare and that she was often paid from the parties’ joint checking account.
The circuit court issued its decision granting appellee visitation rights in a letter opinion. After reciting the historical facts, the court ruled as follows:
According to the testimony of the witnesses, excluding [Appellant], the relationship between [Appellee] and S.B. was that of father-child. Even though [Bunch] has exercised visitation with the child on weekends and for a short period in the summer, [Appellee] has lived, for the most part, with [Appellant] and S.B. since at least September 2006. According to the testimony of Dale Oldham, [Appellant’s] supervisor from September 2006 — April 2008, [Appellee] lived with [Appellant] and S.B. when he was off work. The testimony of the witnesses indicated [Appellee] and child hunted and fished together; [Appellee] disciplined S.B. when it was required and praised her when justified her [sic]. In dispute of this testimony, [Appellant] and her father testified, since the separation, the child has not indicated she has missed seeing [Appellee].
Both parties agree that this court has the discretion to award visitation to a step-parent who has stood in loco paren-tis to a child. The testimony of all witnesses, excluding [Appellant], who testified on this point indicated S.B. and [Appellee] had a father-child relationship prior to the separation of these parties.
In this instance, S.B. has a father who is involved in her life. Neither biological parent wants the relationship to continue. The court however must take into account the fact that the relationship is one that, at one point in time, was in fact fostered by [Appellant] and tolerated by Mr. Bunch. It is a relationship that has existed for five (5) of the seven (7) years of this child’s existence. Taking that into consideration, the question then becomes whether it is in the best interest of the child for this relationship to continue.
The court finds that the [Appellee] did stand in loco parentis to the child S.B. and that it is in the best interest of the child to continue to have a relationship [Bwith each other. [Appellee] will be allowed to visit one weekend per month; one week in the summer; and one overnight visit during each of the following breaks: Spring and Christmas. [Appel-lee] may also have telephone communication with the child each Tuesday at 6:00 p.m. [Appellant] shall make the child available for these conversations. The court’s usual parenting language shall be applicable in this situation and shall be included in the order to be prepared by Mr. Skinner. The order shall be forwarded to Mr. Myers for approval as to form, and to this Court for execution.
The decree of divorce included the circuit court’s ruling. This appeal followed.
For reversal of the circuit court’s decision, appellant contends that the court erred in ruling that appellee stood in loco parentis to the child.
The Latin phrase, “in loco paren-tis,” literally translated, means “in the place of a parent.” Simms v. United States,
One’s mere status as a stepparent does not support a finding of in loco parentis. Stair v. Phillips,
This court has held that a circuit court may award visitation to a stepparent who stands in loco parentis to a minor child of a natural parent when it determines that preservation of the relationship is in the best interest of the child. Robinson v. Ford-Robinson,
By contrast, in Standridge, supra, we overturned a circuit court’s decision that a stepfather stood in loco parentis to his wife’s child. In that case, the stepfather had been married to the child’s mother for fifteen months. The evidence showed that the stepfather provided monetary support for the child; that he took the child hunting, fishing, and swimming; and that the child accompanied the stepfather to work most every day. In reversing, we accepted that these facts were established in the record but said that “our holding is that the court erred not in finding facts but in characterizing the relationship as one in loco parentis.” Standridge,
As discussed, our case law reflects that the hallmark of the in loco parentis relationship is the assumption of the rights, duties, and responsibilities associated with being a parent. Thus, one’s mere status as a stepparent does not suffice. In ruling that appellee stood in loco parentis to the child, the circuit court considered the length of time appellee had been in the child’s life and the testimony describing the closeness of the relationship as being like that of a parent and child. The circuit court noted that appellee and the child participated in recreational activities, and the court also found that appellee disciplined the child when necessary and praised her when justified. Upon our de novo review, we also take into account appellee’s testimony that he occasionally tended to her needs, provided necessities, babysat, and attended school programs. While we will not overturn a circuit court’s factual determinations | ^unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. Hetman v. Schwade,
Reversed.
Notes
. The heading of appellant’s argument on appeal includes the statement that the circuit court’s decision is contrary to the child’s best interest. However, the body of her brief contains no argument regarding best interest. In the absence of any argument, we consider the point waived. See Brockwell v. State,
. Appellant also argues on appeal that the circuit court’s decision denies her right to due process and infringes on her fundamental right to raise her child without state interference. However, appellant acknowledges that at trial she did not challenge the authority of the circuit court to award stepparent visitation on constitutional grounds. It is well settled that this court will not address an issue raised for the first time on appeal, even a constitutional argument. Bayer CropScience LP v. Schafer,
Dissenting Opinion
dissenting.
hnThe majority’s refusal to acknowledge the full import of its decision greatly disturbs me. In my thirty-one years on the appellate bench, I have never witnessed a case where the well-established principle of stare decisis is so carelessly ignored. The majority is purposefully vague with regard to the appropriate standard of review to be utilized in this case, but it is clear from the end result that the majority is reviewing the circuit court’s finding of in loco parentis as a conclusion of law, which is completely contrary to this court’s holding in Bethany v. Jones,
In both of those cases, this court reviewed the findings of in loco parentis under the clearly erroneous standard of review, giving due regard to the circuit court’s findings. The majority supports its conclusion to give no deference to the circuit court’s finding of in loco parentis by referencing a line of cases wherein this court held that “we are free in a de novo review to reach a different result required by the law.” See Hetman v. Sehwade,
Although the majority refuses to acknowledge it, the fact is that its decision overrules the standard of review employed in Bethany and Robinson, two cases directly on point. One of the duties of this court, as the highest court in this state, is to provide guidance for the bench and the bar. We cannot satisfy this duty if we fail to acknowledge that we are departing from precedent.
I respectfully dissent.
BROWN and DANIELSON, JJ., join in this dissent.
Dissenting Opinion
dissenting.
The majority’s decision in the instant case clearly leaves the circuit courts of this state in the proverbial position of being up a creek without a paddle when rendering future decisions in visitation matters involving a stepparent. While acknowledging our “even greater” deference to the circuit courts in cases involving child custody or visitation, the majority completely ignores and disregards the circuit court’s findings of credibility made after examining and hearing from the witnesses in the instant case. Instead, the majority substitutes its own opinion in holding that Spi-vey did not stand in loco parentis to S.B., a decision with which I strongly disagree, and their decision fundamentally alters the state of our law in this area. Accordingly, I dissent.
As an initial matter, I note the majority’s blatant disregard for our standard of review in cases such as this. It is well settled that a circuit court’s finding of in loco parentis, in the context of visitation matters, is to be reviewed under a clearly erroneous standard. See Bethany v. Jones,
Turning to the merits, I find interesting the majority’s conclusion that the facts in the instant case “fall well short of establishing that [Spivey] embraced the rights, duties, and responsibilities of a parent,” simply because the facts of this case could well describe the relationship between any natural parent and child. It thus begs the question: what more could Spivey have done to so establish? More precisely, what would the majority require of a stepparent trying to establish an in loco paren-tis relationship?
The assumption of the parental relationship of in loco parentis is largely a question of intention, which may be shown by the acts and declarations of the person alleged to stand in that relation. See 59 Am.Jur.2d Parent & Child § 9 (2011). In loco parentis, as we have defined the term, means “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” Robinson,
Here, the overwhelming testimony before the circuit court made more than clear that Spivey and S.B. enjoyed a parent-child relationship that went well beyond a typical stepfather-stepchild relationship. Indeed, Spivey was much more to S.B. than a mere stepparent, and he demonstrated such through the evidence he presented to the circuit court. Simply because the majority does not like the end result in this case in no way warrants a reversal of the circuit court’s decision that was made after thorough and careful consideration.
A review of the record in this case using the requisite standard of review makes plain that the circuit court did not clearly err in finding that Spivey stood in loco parentis to S.B., and therefore I would affirm the circuit court’s order.
CORBIN and BROWN, JJ., join.