                                 Cite as 2016 Ark. App. 246

                  ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                       No. CV-15-1036


KAYLA SHORES (now FITTS)                           Opinion Delivered   MAY 4, 2016

                                APPELLANT          APPEAL FROM THE WASHINGTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. DR-15-566]

MARILYN SUE LIVELY AND                             HONORABLE STACEY
ROBERT ALAN LIVELY                                 ZIMMERMAN, JUDGE

                                 APPELLEES         REVERSED AND DISMISSED



                               DAVID M. GLOVER, Judge


       This is a grandparent-visitation case. Appellant Kayla Shores Fitts appeals the circuit

court’s decision to grant appellees Marilyn and Robert Lively visitation with their

grandchildren, K.L.1 and K.L.2. Fitts argues the trial court erred (1) in finding the Livelys had

established a significant and viable relationship with the children; (2) in finding it was in the

best interest of the children to allow visitation; and (3) in allowing the children’s father,

Jonathan Lively, who was not a party to the visitation proceeding, to make a closing

statement. We find merit in Fitts’s argument on the second point; we reverse the trial court’s

grant of visitation.

       Fitts and the Livelys’ son, Jonathan, are the biological parents of K.L.1 and K.L.2.

K.L.1 was born on September 3, 2010, and K.L.2 was born on February 28, 2012. In June

2014, while Jonathan was incarcerated, his parental rights were terminated by the Washington
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County Circuit Court. The termination decision was reversed and remanded by our court in

Lively v. Arkansas Department of Human Services, 2015 Ark. App. 131, 456 S.W.3d 383.

       Fitts and Jonathan divorced in August 2014. The Livelys filed their petition for

grandparent visitation in April 2015; at that time, Jonathan was still incarcerated, and his

parental-rights and visitation case was then pending. Fitts’s motion to consolidate Jonathan’s

pending parental-rights and visitation case with the Livelys’ grandparent-visitation case was

granted. At the time of the hearing, Fitts’s new husband, Colby Fitts, had an outstanding

petition to adopt K.L.1 and K.L.2.

       The circuit court initially heard the Livelys’ petition for grandparent visitation on July

10, 2015, and determined the Livelys met the burden set out in the grandparent-visitation

statute; however, the circuit court ordered family counseling to take place between the Livelys

and the children in order to determine what type of visitation should occur between them and

the children. The circuit court set a final hearing for September 2015 to determine if the

counseling was beneficial. An order to this effect was filed on July 28, 2015.1

       Fitts appealed the circuit court’s grant of visitation on July 30, 2015. She also refused

to set counseling appointments; in response, the Livelys filed a motion to hold her in

contempt. The circuit court held a hearing on September 18, 2015. The Livelys argued the

July 28 order was not a final order but merely a temporary order because it contemplated a


       1
         It was during this hearing that the circuit court made the ruling that forms the basis
for Fitts’s third point on appeal. Over Fitts’s objection, the circuit court allowed Jonathan
Lively to make a closing statement in the grandparent-visitation proceeding, even though he
was not a party to that proceeding. As explained infra, due to the disposition of Fitts’s other
points, it is not necessary to address this point.

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final hearing in September 2015. Fitts argued the circuit court found that the Livelys had met

their burden of proof for grandparent visitation in the July 2015 hearing and it was therefore

a final order, which she was appealing. The circuit court agreed it had previously found that

the Livelys met their burden of proof but also agreed no specific visitation had been set forth

due to the order for counseling and the need to ease into visitation. The circuit court declined

to hold Fitts in contempt; it set specific, supervised visitation for the first Saturday of every

month from 1:00 p.m. to 3 p.m. An order to this effect was filed on September 18, 2015, and

Fitts filed her notice of appeal on the same day.

                                       Standard of Review

       As a rule, when the setting of visitation is at issue, we will not reverse the trial court

absent an abuse of discretion. Hollingsworth v. Hollingsworth, 2010 Ark. App. 101, 377 S.W.3d

313. Abuse of discretion is discretion applied thoughtlessly, without due consideration, or

improvidently. Id. The “clearly erroneous” standard of review is applied to a trial court’s

findings of fact in domestic-relations cases; however, a trial court’s conclusions of law are

given no deference on appeal. Id. A trial court’s finding is clearly erroneous when, although

there is evidence to support it, the reviewing court, on the entire record, is left with a definite

and firm conviction that a mistake has been committed. Painter v. Kerr, 2009 Ark. App. 580,

336 S.W.3d 425. Due deference is accorded to the superior position of the trial court to view

and judge the credibility of the witnesses; this deference is even greater in cases involving

children, as a heavier burden is placed on the judge to utilize to the fullest extent his or her

powers of perception in evaluating the witnesses, their testimony, and the best interest of the


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children. Id.

       The Livelys have standing to petition for grandparent visitation because the marital

relationship between Fitts and Jonathan was severed by divorce. Ark. Code Ann. § 9-13-

103(b)(1) (Repl. 2015). Our grandparent-visitation statute provides there is a rebuttable

presumption that a custodian’s decision to deny or limit the petitioners’ visitation is in the best

interest of the child. Ark. Code Ann. § 9-13-103(c)(1). Petitioners bear the burden of

rebutting that presumption by a preponderance of the evidence; to do so, the petitioners must

show that they have established a “significant and viable relationship” with the children and

that visitation with petitioners is in the children’s best interest. Ark. Code Ann. § 9-13-

103(c)(2)(A)–(B) (emphasis added).

                                Significant and Viable Relationship

       We must first discuss whether the Livelys had a significant and viable relationship with

K.L.1 and K.L.2, because if there is no significant and viable relationship, it is not necessary

to make a best-interest determination. See Bowen v. Bowen, 2012 Ark. App. 403, 421 S.W.3d

339 (to rebut the presumption that the custodian’s denial or limitation of visitation is in the

best interest of the child, the petitioners are first required to establish by a preponderance of

the evidence that they had established a significant and viable relationship with the children).

       To establish a significant and viable relationship, the Livelys were required to prove,

by a preponderance of the evidence, that the children (1) resided with the petitioners for at

least six months with or without the current custodian present; (2) the petitioners were the

caregivers to the children on a regular basis for at least six consecutive months; or (3) the


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petitioners had frequent or regular contact with the children for at least twelve consecutive

months. Ark. Code Ann. § 9-13-103(d)(1)(A)–(C) (emphasis added).

       With regard to K.L.1, Fitts admits in her argument that she and K.L.1 lived with the

Livelys for at least the first six months of K.L.1’s life, which is sufficient to establish a

significant and viable relationship under Arkansas Code Annotated section 9-13-103(d)(1)(A).

Nevertheless, Fitts contends those first six months of K.L.1’s life should not qualify as

evidence of a significant and viable relationship under these circumstances because K.L.1 is

now five years old and has no memory of the Livelys. She is incorrect in this assertion. In

Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007), the appellant, who was the

custodial father, asked our court to hold that the grandparent-visitation statute required the

twelve consecutive months of regular contact (one of the alternatives to establish a significant

and viable relationship under Arkansas Code Annotated section 9-13-103(d)(1)(C)), to occur

close in time prior to a petition for visitation from grandparents. We declined to do so,

holding that we could not, “under the flag of interpretation,” add a significant additional

qualification to the law enacted by the General Assembly. Fitts is asking our court now to do

the same thing the appellant in Brandt requested and our court refused to do—add a significant

additional qualification to the General Assembly’s statute that is simply not there. The statute

requires only that the children have resided with petitioners for at least six months with or

without the current custodian present to establish a significant and viable relationship—there

is no requirement that those six months be close in time to the date the grandparents file for

visitation rights. Therefore, we hold that the circuit court did not clearly err in determining


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the Livelys established a significant and viable relationship with K.L.1.

       The question answer to whether the Livelys established a significant and viable

relationship with respect to K.L.2, however, is more complicated. In its findings at the July

10, 2015 hearing, the circuit court stated from the bench it believed the Livelys had shown

that they had a significant and viable relationship with the children and that they had proved

by a preponderance of the evidence the child (the circuit court did not specify which one) had

resided with the petitioners for at least six consecutive months, “so check that one off the

box.” The July 28, 2015 order simply stated that “a significant and viable relationship existed

between the Petitioners and their grandchildren at issue in this cause of action.”

       The evidence was conflicting as to how long the children lived with the Livelys after

K.L.2’s birth. Marilyn Lively testified Fitts, Jonathan, and the children lived with them three

or four months after K.L.2’s birth; Fitts testified she and the children moved out of the

Livelys’ house when K.L.2 was a month old. Even taking Marilyn Lively’s testimony as true,

that K.L.2 lived in her home until he was four months old, that does not establish the

requisite six-month period required by Arkansas Code Annotated section 9-13-103(d)(1)(A).

        However, the Livelys could establish a significant and viable relationship with K.L.2

under Arkansas Code Annotated section 9-13-103(d)(C) by showing they had frequent or

regular contact with K.L.2 for at least twelve consecutive months. Again, the testimony with

respect to the frequency of contact was hotly disputed. Marilyn testified that after the children

moved out of her house (which she contends was when K.L.2 was four months old), she went

by their house if not every day, at least every other day, to see them until the first part of


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September 2013, which was the last time Marilyn said she had seen her grandchildren.

Appellee Robert Lively testified that he had a day-to-day relationship with K.L.2 when he

lived in his house after he was born and that when the children moved out of the house, he

continued to have regular visits with them, although not as regular as Marilyn’s visits. Fitts

disputed that the Livelys continued to see the children on a regular basis after she moved out

of the Lively’s house. Although she admitted the Livelys had some visits, and, although,

according to her, she allowed Robert Lively to see the children more than she allowed

Marilyn Lively to see them, Fitts asserted there was a six-month period from March to August

2012 when the Livelys did not see the children at all; that they began to see the children again

in August 2012 due to an attempted reconciliation between Jonathan and herself; that she and

Jonathan separated for good in February 2013; and that the last time the Livelys saw the

children was July 4, 2013, not September 2013.

       K.L.2 was born February 28, 2012. The testimony was hopelessly at odds with regard

to the type of contact and the frequency of contact the Livelys had with K.L.2. Given Marilyn

Lively’s testimony that Fitts and the children lived with the Livelys for four months after

K.L.2’s birth, and taking Marilyn Lively’s testimony as true that she saw her grandchildren

every other day until September 2013, this testimony supports the circuit court’s finding that

the Livelys had established a significant and viable relationship with K.L.2, and we cannot say

that the circuit court’s finding was clearly erroneous.

                                         Best Interest

       Even though the circuit court did not clearly err in finding the Livelys had established


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a significant and viable relationship with the children, we hold that this case must be reversed

because the Livelys did not prove by a preponderance of the evidence that visitation was in

the children’s best interest. To prove visitation was in the children’s best interest, the Livelys

had to show they had the capacity to give the children love, affection, and guidance; the loss

of the relationship between themselves and the children was likely to harm the children; and

they were willing to cooperate with Fitts if visitation was allowed.2 Ark. Code Ann. § 9-13-

103(e)(1)–(3).

       The best interest of the child cannot be proved simply by showing a meaningful or

substantial relationship existed and that the grandparents desired to further that relationship.

Bowen, 2012 Ark. App. 403, 421 S.W.3d 339. Additionally, a trial court cannot override a fit

parent’s wishes based solely on its personal view of the children’s best interest. Id.

       With regard to best interest of the children, there was testimony from Marilyn that she

would work with Fitts if granted visitation; Fitts testified she had never had a problem with

Robert. We also have no doubt the Livelys have the capacity to give the children love and

affection. However, the testimony at the visitation hearing raises concerns that the guidance

portion of the best-interest requirement is missing, especially as to Marilyn, a concern the


       2
         We note that Arkansas Code Annotated section 9-13-103(f)(1) requires that an order
granting or denying grandparent visitation shall be in writing and shall state any and all factors
considered by the court in its decision to grant or deny visitation. Here, the circuit court
made no written finding with regard to the best interests of the children. Nevertheless, that
is not an impediment to reversing a grant of grandparent visitation if the record would not
support such a finding, and there is no basis on this record to affirm the trial court’s decision.
See Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008); Harrison v. Phillips, 2012 Ark.
App. 474, 422 S.W.3d 188.


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circuit court stated it had as well. Although she had no burden of proof at the visitation

hearing, Fitts explained and expounded on her reasons why she had concerns about her

children being around the Livelys, especially Marilyn. Fitts testified Marilyn condoned

Jonathan’s drug abuse, to the detriment of the children; Marilyn shared her prescription drugs

with Jonathan and her other son, Matthew; Marilyn allowed Matthew to drive with K.L.1

in the car even though he was high and had no driver’s license; both Marilyn and Robert

refused to stop smoking after K.L.1 was born and they lived with the Lively’s; and when

K.L.1 was nine months old, K.L.1 had an allergic reaction to peanuts, and Marilyn called Fitts

at work to come get her instead of taking K.L.1 to the hospital because Marilyn and Robert

were “high.” Disturbingly, none of this testimony was refuted by the Livelys.

       Furthermore, there is no evidence in the record that the loss of the relationship

between the Livelys and the children was likely to harm the children. There is a substantial

difference between a relationship benefiting a child and the denial of that relationship harming

the child. Favano v. Elliott, 2012 Ark. App. 484, 422 S.W.3d 162. This case is similar to

Brandt v. Willhite, supra, in that a significant period of time has passed since the Livelys had a

significant and viable relationship with the children. By the time the visitation petition was

heard in July 2015, there had been no contact between the Livelys and the children for

approximately two years, and Fitts testified that neither child remembered the Livelys. As in

Brandt, we hold that the circuit court clearly erred in finding that the Livelys had proved that

the children were likely to be harmed by the loss of a relationship that, according to Fitts,

the children did not even recall. Therefore, it was an abuse of discretion to award visitation,


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as the Livelys failed to prove it was in the children’s best interest for visitation to occur.

       Because we reverse the grant of grandparent visitation based on the lack of best

interest, it is not necessary to discuss Fitts’s third point of appeal—that the trial court erred in

allowing Jonathan to make a closing argument during the grandparent-visitation hearing

when he was not a party to that proceeding (see footnote 1).

       Reversed and dismissed.

       BROWN, J., agrees.

       GRUBER, J., concurs.

       RITA W. GRUBER, Judge, concurring. I agree with the majority that, because the

record before us lacks any evidence supporting the likelihood that the children would be

harmed from a loss of relationship with the grandparents, the circuit court clearly erred in

making such a finding.

       I write separately to express my concern that the circuit court ignored our statutory

requirement that a written order denying or granting grandparent visitation “shall state any

and all factors considered by the court in its decision to grant or deny visitation under this

section.” Ark. Code Ann. § 9-13-103(f)(1) (Repl. 2015). See Schwartz v. Lobbs, 2016 Ark.

App. ___ (reversing the circuit court’s denial of grandparent visitation because the order failed

to state the factors the court had considered in reaching its decision). Here, the court did not

set forth the factors it considered in deciding to grant visitation, leaving us with nothing to

review and preventing us from determining “on the entire record” whether “a mistake has

been committed.” Painter v. Kerr, 2009 Ark. App. 580, at 5, 336 S.W.3d 425, 429. The


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shortcoming of the order has prevented our thorough review of the best-interest finding.

      Elizabeth J. Finocchi, for appellant.

      David Hogue, for appellees.




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