                                 Cite as 2015 Ark. App. 345

                 ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                        No. CV-14-979


MALIA DRINKWITZ                                    Opinion Delivered   May 27, 2015
                                APPELLANT
                                                   APPEAL FROM THE CRAWFORD
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 17DR-10-373 (II)]

JERRY DRINKWITZ AND SUSAN                          HONORABLE MICHAEL MEDLOCK,
DRINKWITZ                                          JUDGE
                    APPELLEES
                                                   REVERSED



                                BART F. VIRDEN, Judge

       Appellant Malia Drinkwitz appeals from the Crawford County Circuit Court’s order

granting visitation with Malia’s children, M.D.1 and M.D.2, to the paternal grandparents,

appellees Jerry and Susan Drinkwitz. On appeal, Malia argues that the trial court erred in

granting visitation because the Drinkwitzes failed to prove that visitation was in the children’s

best interest given that (1) they had not lost their relationship with the children, (2) they

could show no harm that came from limiting their contact, and (3) they had demonstrated

an unwillingness to cooperate with her concerning visitation. We agree in part with Malia’s

first point and therefore reverse and vacate the visitation order.

                                     I. Factual Background

       Malia and the children’s father, Zachary Drinkwitz, divorced in December 2010, and

Malia was awarded custody of the children. There was evidence that Zachary’s drug abuse

was a factor in the divorce. Zachary neither regularly exercised his visitation rights nor paid
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any child support; however, his parents, the Drinkwitzes, had frequent contact with the

children.

          In August 2013, the Drinkwitzes filed a motion for grandparent-visitation rights. They

alleged that, although they had always maintained a close relationship with the children,

Malia had begun keeping the children away from them. Malia denied this assertion. In April

2014, the trial court entered a temporary order establishing a visitation schedule. In the final

order, the trial court granted visitation rights to the Drinkwitzes. From that order comes this

appeal.

                                    II. Hearing in June 2014

          Susan testified that after Malia’s divorce from her son, the children continued to

attend family holiday events and birthday parties. Also, the Drinkwitzes continued to babysit

as needed and to pick up the children from school. According to Susan, between August

2012 and July 2013, they probably saw the children at least once a month.

          The evidence showed that some time after August 2012, the children were at the

Drinkwitzes’ home visiting, and Zachary was present. Despite Malia’s specific request that

Zachary not be left alone with the children, the Drinkwitzes permitted him to take the

children on what they thought was a quick trip to Dollar General. Instead, Zachary took the

children to the home of his girlfriend, who was said to have “major drug issues,” and

introduced them to their new half brother, whom they did not know about. Malia was upset

when she discovered where they had gone. Susan, while denying any prior knowledge of

Zachary’s intentions, conceded that she used very poor judgment in permitting her son to


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take the children. Susan testified, however, that, even after that incident, Malia permitted

them to see the children.

       Susan testified that they did not see the children over Christmas 2012 and that it was

not until mid-January 2013 that the children got their Christmas presents. January 2013 was

the first time Malia had not allowed the children to travel with them to attend another

grandchild’s birthday party in Northwest Arkansas. The Drinkwitzes saw the children in

March for their annual daffodil trip, but they did not see the children again until the end of

July or early August when they met at a mall. According to Susan, Malia told her at that time

that “she was starting a new life”; that they would be moving soon; and that it was time to

“cut off all emotional ties with the family.” Susan claimed that she asked for visitation

between March and July but that her phone calls and text messages went unanswered by

Malia, which she said was unusual. Susan testified that Malia had explained in a text message

that they were busy, and Susan conceded that Malia was working with them on visitation

“in her way.” After the Drinkwitzes filed their petition in August, Malia did not bring the

children by to visit in September, October, and November 2013, but the Drinkwitzes saw

the children around Christmas 2013.

       During those months before Christmas, Susan appeared at M.D.1’s school without

Malia’s permission with balloons and a card instructing the child to ask Malia to come by the

Drinkwitzes’ house. On another occasion, Susan passed a note to M.D.1’s friend to give her

saying that her father was fine after having been beaten with a baseball bat and encouraging

her to hide the note in her desk at school. Susan conceded that her actions were


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inappropriate and may have contributed to a breakdown of trust with Malia. Susan testified

that she had no complaints about Malia as a mother and her ability to make decisions that

were in the best interest of her children.

       Jerry testified that he and Susan filed for grandparent-visitation rights because they

wanted “some sort of known amount of time” with the children. He stated that, even

though they had been seeing the children all along, he felt like they had lost a relationship

with the children in 2013 because Malia was “road-blocking” them. According to Jerry, after

Susan went to M.D.1’s school, Malia threatened to get a restraining order.

       Malia testified that she was engaged to be married and wished to move out of state.1

Malia agreed that prior to 2012 the Drinkwitzes had more access to the children but insisted

that she did not cut off contact with them. She said that she had asked the Drinkwitzes to

speak with her first about activities, instead of getting the children’s hopes up, but that they

had simply gone around her. Malia testified that, when they met at a mall in July 2013, she

asked Susan not to remind her children that they had missed another grandchild’s birthday

party or tell how their cousin had cried when he did not get to see them because news of

that sort upset the children.

       Malia read a text message she had sent to Susan: “While I will continue to have

[M.D.1 and M.D.2] have time with you, I do not feel that strong family ties with the rest of

the family should be encouraged.” Malia explained that, while she had no problem with the



       1
      An agreed order was entered in August 2014 permitting Malia to relocate to
Oklahoma, where her fiancé lived.

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children seeing their cousins, other family members had called her a bitch, said she was

“crazy and bi-polar,” threatened her, and suggested that she was taking drugs. Malia

expressed her concern that those family members would speak negatively about her and try

to turn her children against her.

       Malia testified that she wanted the children to know their grandparents. She said that

she had never not permitted the Drinkwitzes to see the children but that she wanted to be

able to put parameters on the visitation. Malia said that she would permit the Drinkwitzes

to see the children even if the court denied their request for visitation rights. She testified

that after the case was heard in February 2014, the visitation resumed at that time. Malia

testified that the Drinkwitzes did not ask for visitation after they filed their petition and that

she was uncertain whether she could contact them while the litigation was pending.

       The attorney ad litem, Cheryl Anderson, submitted a report following the hearing.

She wrote that M.D.1 and M.D.2 were “incredibly bright, entertaining and engaging” and

were “doing exceptionally well,” despite their father’s drug addiction. She noted that the

children were at ease when interacting with the Drinkwitzes but had expressed their desire

that Malia be able to decide when they see their grandparents. She wrote, “I don’t know that

the relationship had been lost at the time of the filing of the petition, although I recognize

and appreciate that [the Drinkwitzes] perceived it to be lost. The grandparents clearly were

no longer enjoying the frequency and quality of the contact they had once had.” Anderson

opined that Malia was a fit mother and that the Drinkwitzes were good grandparents.

Anderson wrote:


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       Malia did continue to allow the children to have a relationship with their
       grandparents until she reached a breaking point that can be attributed to a breach of
       trust. I believe that Malia had fostered the continued relationship between her
       children and the Drinkwitz grandparents even after the nasty divorce had concluded,
       through post-divorce cycles of visitation with a Dad who would cyclically be sober
       and then impaired. To me, she demonstrated a willingness to go the extra mile to
       keep the children connected with Dad’s family longer and more significantly than
       many other parents might have done in the same or similar circumstances. . . . It is
       difficult to know if Malia would have come back around as she had done in prior
       instances when she was disappointed by the grandparents’ actions.

       The trial court entered an order in August 2014 granting the Drinkwitzes visitation

rights until Zachary chose to exercise his rights as their father. In determining that visitation

with the Drinkwitzes was in the children’s best interest, the trial court found that (1) the

Drinkwitzes had a close relationship with and loved their grandchildren; (2) the children

would likely be harmed by a loss of the relationship based on “family heritage, reputation in

the community, education and family experience”; and (3) the Drinkwitzes said that they

were willing to cooperate with Malia “and observe her ‘rules’ in regard to the children.”

                                        III. Argument

       Malia argues that the Drinkwitzes’ petition for visitation rights was premature and

should have been denied because they failed to show that the relationship between them and

their grandchildren had been lost. We agree in part with Malia’s first point and therefore

decline to reach the merits of her other points.

                                    IV. Standard of Review

       The fixing of visitation rights is a matter that ultimately lies within the sound

discretion of the circuit court. In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d 266. Abuse

of discretion is discretion applied thoughtlessly, without due consideration, or improvidently.

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Hollingsworth v. Hollingsworth, 2010 Ark. App. 101, 377 S.W.3d 313. Our appellate courts

have traditionally reviewed matters that sounded in equity de novo on the record. Morris v.

Dickerson, 2012 Ark. App. 129, 388 S.W.3d 910. We will not reverse a finding of fact by a

circuit court unless it is clearly erroneous. Favano v. Elliott, 2012 Ark. App. 484, 422 S.W.3d

162. A finding of fact is clearly erroneous when, despite supporting evidence in the record,

the appellate court viewing all of the evidence is left with a definite and firm conviction that

a mistake has been made. Id. We give due deference to the superior position of the trial court

to view and judge the credibility of the witnesses, and this deference is even greater in cases

involving child custody or visitation. Id. The main consideration in making judicial

determinations concerning visitation is the best interest of the child. In re Adoption of J.P.,

supra.

                                         V. Discussion

         Arkansas Code Annotated section 9-13-103(b)(1) (Supp. 2013) provides that a

grandparent may petition a circuit court for reasonable visitation rights with a grandchild if

the marital relationship between the parents of the child has been severed by divorce. There

is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the

petitioner is in the best interest of the child. Ark. Code Ann. § 9-13-103(c)(1). To rebut the

presumption, the petitioner must prove by a preponderance of the evidence that (1) the

petitioner has established a significant and viable relationship with the child and (2) visitation

with the petitioner is in the best interest of the child. Ark. Code Ann. § 9-13-103(c)(2)(A)

& (B). There is no dispute that the Drinkwitzes had a significant and viable relationship with


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Malia’s children.

       Section 9-13-103(e) provides that to establish that visitation with the petitioner is in

the best interest of the child, the petitioner must prove by a preponderance of the evidence

the following: (1) the petitioner has the capacity to give the child love, affection, and

guidance; (2) the loss of the relationship between the petitioner and the child is likely to

harm the child; and (3) the petitioner is willing to cooperate with the custodian if visitation

with the child is allowed.

       Our supreme court has observed that our grandparent-visitation statute “gives the

parent’s decision presumptive or special weight in deciding whether grandparent visitation

is in the best interest of the child,” as required by the Supreme Court’s decision in Troxel v.

Granville, 530 U.S. 57 (2000). In re Adoption of J.P., 2011 Ark. 535, at 15, 385 S.W.3d at 275.

Here, Susan conceded that Malia is a fit mother, and the attorney ad litem described Malia

as “a fit mother and a good mother.” We hold that, under the facts of this case, the trial court

clearly erred in finding that the Drinkwitzes rebutted the presumption that Malia’s decision

to limit visitation was in her children’s best interest.

       To the extent that Malia suggests that the Drinkwitzes were required to show that

their relationship with the children was lost, our case law indicates that a petitioner must

show that the relationship was lost or would be lost. Oldham v. Morgan, 372 Ark. 159, 271

S.W.3d 507 (2008). “[I]f there is a relationship in existence that, while limited, has not been

lost, and if there is no evidence that the relationship would be lost were grandparent

visitation not established by the court, a grandparent’s petition for visitation is premature.”


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Harvill v. Bridges, 2012 Ark. App. 683, at 3. The trial court did not make a specific finding

that the relationship was lost or would be lost if visitation rights were not granted, and the

evidence would not support such a finding.

       The Drinkwitzes alleged in their petition for visitation that Malia was “starting to

keep” the children away from them, which is some acknowledgment that the relationship

was not lost. Moreover, the evidence does not show that the relationship would be lost

absent a court order. In Oldham, supra, our supreme court reversed the trial court’s visitation

order because there was no evidence that the relationship had been lost or would be lost;

rather, the grandmother only wanted to safeguard her future right to visitation with the child.

Similarly, Jerry testified that their petition was filed in order to establish “some sort of known

amount of time” with Malia’s children. Further, Susan testified that she did not believe that

they would see the children again without a visitation order in place, but this fear of what

the future held was unfounded considering that Malia had in the past demonstrated a

willingness to facilitate a relationship between her children and their grandparents. We hold

that the trial court abused its discretion in awarding visitation rights to the Drinkwitzes

because they failed to sustain their burden of proving that visitation was in the children’s best

interest in that they could not show that the relationship with their grandchildren was lost

or would be lost. Therefore, we reverse and vacate the visitation order.

       Reversed.

       GRUBER and WHITEAKER, JJ., agree.

       Gean, Gean & Gean, by: Roy Gean III, for appellant.

       Lisa-Marie Norris, for appellees.

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