                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    March 9, 2016 Session

       SVEN HADJOPOULOS, ET AL. v. ALEXANDRA SPONCIA, ET AL.

                  Appeal from the Chancery Court for Greene County
                   No. 20140274    Douglas T. Jenkins, Chancellor


                 No. E2015-00793-COA-R3-CV-FILED-APRIL 28, 2016


This is a grandparent visitation case. Sven Hadjopoulos (“Grandfather”) and Mary Lou
Hadjopoulos (“Grandmother”) (“Grandparents,” collectively) filed a petition seeking
visitation with their minor granddaughter (“the Child”). Alexandra Sponcia (“Mother”)
and Christopher Sponcia (“Father”) (“Parents,” collectively) opposed the petition and the
requested visitation.1 After a trial, the Chancery Court for Greene County (“the Trial
Court”) found that substantial harm likely would come to the Child should visitation with
Grandparents cease. The Trial Court, therefore, ordered grandparent visitation. Parents
filed an appeal to this Court. We hold that the Trial Court’s final judgment is insufficient
in a number of ways detailed herein, including its lack of a required best interest
determination. We vacate the judgment of the Trial Court and remand for the Trial Court
to enter a new, clarified final judgment in this case consistent with this Opinion.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated;
                                    Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and JOHN W. MCCLARTY, JJ., joined.

E. Ronald Chesnut, Greeneville, Tennessee, for the appellants, Alexandra Sponcia and
Christopher Sponcia.

Joseph O. McAfee, Greeneville, Tennessee, for the appellees, Sven Hadjopoulos and
Mary Lou Hadjopoulos.




1
  Brandon Babb is the biological father of the Child. Christopher Sponcia married Mother and adopted
the Child. Babb consented to the adoption. Sponcia was substituted for Babb as a party in this case.
                                         OPINION

                                        Background

              The Child was born in December 2006. Mother was an unmarried teen at
the time. Grandparents are the Child’s maternal grandparents. The Child spent some
amount of time with Grandparents in her early years. This amount of time was disputed
at trial and on appeal. Grandparents assert that the Child stayed with them for a
significant amount of time. Parents, on the other hand, assert that Grandparents kept the
Child while Mother was working or in school, but never for a substantial amount of time.

              This case has its roots in Parents’ decision to stop grandparent visitation
with the Child. Grandparents subsequently filed a petition for grandparent visitation in
the Juvenile Court for Greene County, a petition which later was transferred to the Trial
Court. Grandparents alleged, among other things, that they were responsible for the
Child for a significant portion of the time from day to day, and that cessation of the
relationship would pose a great likelihood of substantial harm to the Child. By agreed
order in February 2014, grandparent visitation was ordered. Grandparents later filed a
motion for contempt against Mother alleging that she refused to follow the visitation
schedule set forth in the agreed order. The Juvenile Court found that Parents should have
continued to follow the agreed order but had not done so. The matter was transferred to
the Trial Court. This case was tried in December 2014.

                Much of the trial testimony centered on the acrimonious relationship
between Mother and Grandparents rather than on the Child’s welfare, or what, if any,
harm likely would come to the Child should grandparent visitation cease. Mother’s
brother testified that the Child had resided with Grandparents much of the time, but he
could not specify exactly how much of the time. Grandfather testified that the Child
stayed with Grandparents “half the time.” Grandmother, for her part, testified it was
ninety percent of the time. Certain witnesses for Parents, including one of the Child’s
teachers, testified to the Child being quite happy and well-adjusted. Mother herself
testified that there was no risk of substantial harm to the Child as a result of the cessation
of grandparent visitation.

              In April 2015, the Trial Court entered its final judgment. The Trial Court’s
judgment consisted primarily and substantively of its oral ruling, a transcript of which
was attached to the judgment. The Trial Court found as follows, in relevant part:

       [T]he Court finds and Rules as follows. There is a, of course, [the Child] . .
       . born in 2006. The first - - I think the testimony from both sides was
       probably five or six years of the child’s life he (sic) lived in the
                                             -2-
grandparents’ - - who are seeking visitation - - household most of the time.
And they took a big part in caring for him (sic) and taking care of him (sic),
and were probably more than grandparents to him, and had a wonderful and
great relationship with him (sic). In March of 2013, sometime before the
filing of this action, the mother attempted to severe [sic] the child’s
relationship with her mother in particular, and then this Petition For Grand
Parental Rights was filed. The lawyers brought me some cases to look at,
and the McGarity case is really the case that gave the Court pause when we
were doing the trial because Judge - - I think it was Judge Stafford wrote
the Opinion - - and that case, if you just - - at first blush it looks like it sets
up an insurmountable burden of proof for grandparents in connection with
seeking the right to visit their grandchildren. But the Court believes in this
particular case, that this particular case has some rather peculiar facts that
are somewhat different than McGarity. And the Court believes that the
attempted severance of the grandparents’ relationship with the child was
not in good faith and that it was done kind of on a whim, or after some
heated words, or maybe a series of heated exchanges between Mom and
Grand Mom. And whatever problems you all have got between yourselves,
the child - - all the testimony was that the child was very attached to the
grandparents and had spent a whole lot of time with them. The Court
believes that their relationship with the child should continue, but no[t] so
as to be intrusive into your life, not so as to - - and I’m talking to you, Mom
- - not so as to interfere with you[r] relationship, just to continue the
relationship with the grandparents so the child doesn’t have issues with
abandonment or anger because someone that was very important to them is
just all of a sudden no longer there. And I know we’ve got this Interim
Order where some visitation has been occurring, so the Court believes that
to prevent substantial harm to the child, substantial emotional harm to the
child that this relationship should continue. And the Court believes that
there should be a minimum of two visitation sessions a month from 10:00
o’clock until 6:00 o’clock. At this time the Court doesn’t feel as though
overnight visits are necessary to keep up the grandparents’ relationship with
the child, but two times a month from 10:00 o’clock to 6:00 o’clock so as
not to interfere with the child’s extracurricular schedule. When the child
gets older in its teen years and you want to afford a child more freedom, the
Court would consider overnight visits, but what I’ve set out is a minimum.
Okay? If you all start getting along better and you want to let the child go
over there and spend a week, it doesn’t matter to me if you all agree on it,
but this Order that I’m putting down is just a minimum of grand parental
visitation. And I’m not ordering any specific holiday visitation for you all,
except I would say this: The child I think should be with its nuclear family
                                        -3-
      on holidays, but schedule one of your two days a month around a holiday,
      and you can have Christmas at that time, etcetera.

                                            ***

      The Court heard from several witnesses, but I think the main two witnesses
      the Court heard from - - or the main three witnesses - - were the Parties
      themselves; the grandparents on the one hand and then the mother on the
      other hand. And the Court credits the testimony of the grandparents and the
      mother’s brother that testified and finds that it’s - - in the quantum of
      credibility it is the testimony that I’ve credited in making my decision.

                                            ***

      I just think that the - - I don’t see a rational basis really for terminating -
      calling off, and I think it was in March of 2013 - - in terminating the child’s
      relationship with the grandparents. Well, the first - - listen. That child’s
      whole life, he’d (sic) been right there in their household, and there was a lot
      of testimony about how close he (sic) was to them. And with everything
      going on in the world right now, you know, a good influence from a
      grandparent is helpful. I think a child needs it, particularly in a case like
      this where they took a big part in raising the child the first five or six years
      of the child’s life. So, you know, I’m not substituting my judgement for
      Mom’s. I’m just looking at the facts and making what findings I have, and
      ruled accordingly.

The Trial Court reserved judgment on Grandparents’ motion for contempt. The Trial
Court specified that its judgment as to grandparent visitation was a final judgment.
Parents timely appealed to this Court.

                                        Discussion

               Although not stated exactly as such, Parents raise the following issue on
appeal: whether the Trial Court erred in finding that there is a danger of substantial harm
to the Child if the Child does not have visitation with Grandparents.

             Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no


                                            -4-
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

              Tenn. Code Ann. § 36-6-306 (2014), the Grandparent Visitation Statute,
provides in relevant part:

      (a) Any of the following circumstances, when presented in a petition for
      grandparent visitation to the circuit, chancery, general sessions courts with
      domestic relations jurisdiction or juvenile court in matters involving
      children born out of wedlock of the county in which the petitioned child
      currently resides, necessitates a hearing if such grandparent visitation is
      opposed by the custodial parent or parents:

      (1) The father or mother of an unmarried minor child is deceased;

      (2) The child’s father or mother are divorced, legally separated, or were
      never married to each other;

      (3) The child’s father or mother has been missing for not less than six (6)
      months;

      (4) The court of another state has ordered grandparent visitation;

      (5) The child resided in the home of the grandparent for a period of twelve
      (12) months or more and was subsequently removed from the home by the
      parent or parents (this grandparent-grandchild relationship establishes a
      rebuttable presumption that denial of visitation may result in irreparable
      harm to the child); or

      (6) The child and the grandparent maintained a significant existing
      relationship for a period of twelve (12) months or more immediately
      preceding severance of the relationship, this relationship was severed by the
      parent or parents for reasons other than abuse or presence of a danger of
      substantial harm to the child, and severance of this relationship is likely to
      occasion substantial emotional harm to the child.

      (b)(1) In considering a petition for grandparent visitation, the court shall
      first determine the presence of a danger of substantial harm to the child.
      Such finding of substantial harm may be based upon cessation of the
      relationship between an unmarried minor child and the child’s grandparent
      if the court determines, upon proper proof, that:
                                           -5-
       (A) The child had such a significant existing relationship with the
       grandparent that loss of the relationship is likely to occasion severe
       emotional harm to the child;

       (B) The grandparent functioned as a primary caregiver such that cessation
       of the relationship could interrupt provision of the daily needs of the child
       and thus occasion physical or emotional harm; or

       (C) The child had a significant existing relationship with the grandparent
       and loss of the relationship presents the danger of other direct and
       substantial harm to the child.

                                            ***

       (3) A grandparent is not required to present the testimony or affidavit of an
       expert witness in order to establish a significant existing relationship with a
       grandchild or that the loss of the relationship is likely to occasion severe
       emotional harm to the child. Instead, the court shall consider whether the
       facts of the particular case would lead a reasonable person to believe that
       there is a significant existing relationship between the grandparent and
       grandchild or that the loss of the relationship is likely to occasion severe
       emotional harm to the child.

                                            ***

       (c) Upon an initial finding of danger of substantial harm to the child, the
       court shall then determine whether grandparent visitation would be in the
       best interests of the child based upon the factors in § 36-6-307. Upon such
       determination, reasonable visitation may be ordered.

               Our review of the record on appeal convinces us that the dispositive issue is
not that raised by Parents, but rather whether the Trial Court’s order is sufficient for this
Court to conduct an effective appellate review. We find that it is not.

                Tenn. Code Ann. § 36-6-306(a) lays out the circumstances necessitating a
hearing when parents oppose grandparent visitation. In the present case, it is undisputed
by Parents that the Child had a prior significant existing relationship with Grandparents.
Parents also do not dispute Grandparents’ standing. Therefore, ostensibly, the
enumerated circumstances in Tenn. Code Ann. § 36-6-306(a) are not at issue. However,
both at trial, and on appeal, Grandparents assert that both circumstances (5) and (6) apply
                                             -6-
to them. The significance of this is that under subsection (5), where “[t]he child resided
in the home of the grandparent for a period of twelve (12) months or more and was
subsequently removed from the home by the parent or parents,” there is a “rebuttable
presumption that denial of visitation may result in irreparable harm to the child.” If
subsection (5) were found to be applicable, the burden would shift from Grandparents to
Parents. See Larson v. Halliburton, M2003-02103-COA-R3-CV, 2005 WL 2493478, at
*5 (Tenn. Ct. App. Oct. 7, 2005), no appl. perm. appeal filed. The Trial Court did not
state in its final judgment which subsection it applied. The difference in whether
subsections (5) or (6) apply, or both, potentially is dispositive to the outcome in this case.
Without a specific holding on this part by the Trial Court, when both subsections were
tried and argued, we are left to guess or assume in order to conduct appellate review. We
decline to do so. The judgment of the Trial Court instead is vacated, and this case is
remanded to the Trial Court to enter a new, clarified final judgment.

              Additionally, the Trial Court’s findings regarding substantial harm or
severe emotional harm to the Child are too generalized to allow sufficient appellate
review. The Trial Court at one point spoke to a general sense that in today’s world, a
good influence from a grandparent is helpful. While this may be true, depending in part
upon the applicability of the rebuttable presumption discussed above, a particularized
finding is required as to each specific case as to why cessation of grandparent visitation
in that particular case likely would occasion substantial harm or severe emotional harm
to the child. See McGarity v. Jerrolds, 429 S.W.3d 562, 580 (Tenn. Ct. App. 2013).
Finally, on this issue of the substantial harm threshold, there was some discussion during
the Trial Court’s oral ruling as to the standard of evidence being that of clear and
convincing evidence. This Court has reviewed the case law on grandparent visitation,
and is unsure where the Trial Court and counsel came to understand that the evidentiary
burden in grandparent visitation cases is that of clear and convincing evidence. Our
research indicates the standard is the usual one for civil cases, that of a preponderance of
the evidence.

               An additional deficiency in the final judgment exists. Tenn. Code Ann. §
36-6-306(c) requires that, upon a finding of a danger of substantial harm to the child, the
court is to render a best interest determination based upon the factors contained in Tenn.
Code Ann. § 36-6-307. Only after making a determination according to the statutory
factors that grandparent visitation is in the child’s best interest may a court then proceed
to order reasonable visitation. In the present case, the Trial Court’s final judgment
contains no such analysis as to the Child’s best interest. On remand, should the Trial
Court again find a danger of substantial harm or severe emotional harm, it then must
conduct a best interest analysis pursuant to Tenn. Code Ann. § 36-6-306(c) and Tenn.
Code Ann. § 36-6-307. Only if the Trial Court finds that grandparent visitation is in the

                                             -7-
best interest of the Child may the Trial Court then order reasonable grandparent
visitation.

              While this Court much prefers to resolve appeals on their merits, we see no
alternative in the present case but to vacate and remand with instructions for the Trial
Court to enter a new final judgment. Specifically, the Trial Court is instructed to enter a
new final judgment containing the following: (1) a finding as to whether Tenn. Code
Ann. § 36-6-306(a)(5) or (6), or both, applies to this case, and, if subsection (5) applies,
whether Parents successfully rebutted the rebuttable presumption of irreparable harm if
grandparent visitation is disallowed; (2) depending in part upon the Trial Court’s finding
regarding instruction (1), a clarified finding of whether cessation of grandparent visitation
will occasion substantial harm or severe emotional harm in this specific case and not to
grandchildren in general; and, (3) if the danger of substantial harm threshold is met in the
Trial Court’s judgment, a best interest determination pursuant to Tenn. Code Ann. § 36-
6-306(c) based upon the factors found at Tenn. Code Ann. § 36-6-307 before any
reasonable grandparent visitation is ordered.

                                        Conclusion

             The judgment of the Trial Court is vacated, and this cause is remanded to
the Trial Court for further action consistent with this Opinion and for collection of the
costs below. The costs on appeal are assessed equally against the Appellants, Alexandra
Sponcia and Christopher Sponcia, and their surety, if any, and the Appellees, Sven
Hadjopoulos and Mary Lou Hadjopoulos.



                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




                                             -8-
