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Ross v. Scott

Court of Appeals of Missouri, Eastern District, Northern Division

December 10, 2019

LORI ROSS, Appellant,
v.
KYLE SCOTT and CHARLOTTE SCOTT, Respondents.

          Appeal from the Circuit Court of Ralls County 12RL-CV00278-02 Honorable Rachel Bringer Shepherd

          OPINION

          ROBERT M. CLAYTON III, PRESIDING JUDGE.

         Third-party petitioner Lori Ross ("Ross") appeals the grant of summary judgment entered in favor of Kyle Scott (individually "Kyle Scott" or "Kyle")[1] and Charlotte Scott (individually "Charlotte Scott" or "Charlotte") (collectively "Third-Party Respondents" or "Parents") on Ross's motion seeking grandparent visitation under section 452.402 RSMo 2016.[2] We affirm.

         I. BACKGROUND

         In January 2005, Kyle and Amanda Scott[3] ("Amanda") got married. Later that year, Amanda sought adoption by her step-mother Carol Wilson ("Wilson"). A court granted the adoption, which resulted in Ross - Amanda's biological mother - losing all legal parental rights. As a result, Amanda's birth certificate was changed to show Wilson as her mother and with no mention of Ross.

         During their marriage, Amanda and Kyle Scott had two children ("Children") together. On October 31, 2012, Amanda and Kyle dissolved their marriage. Pursuant to the dissolution judgment and an incorporated marital settlement and separation agreement, the parties were awarded joint legal and joint physical custody of the Children.

         Thereafter, Kyle Scott filed a motion to modify the custody provisions of the dissolution judgment, alleging drug use by Amanda. The trial court granted the motion in July 2014 pursuant to a modification judgment which incorporated a stipulation agreement entered into between Kyle and Amanda. Kyle was awarded sole legal and sole physical custody of the Children.[4] Approximately two years later, in 2016, Amanda consented to the adoption of her two biological Children to Kyle Scott's new wife - Charlotte Scott. As a result, Amanda's parental rights to the Children were terminated.

         In August 2018, Ross - as a third-party petitioner - filed a motion to modify the July 2014 judgment modifying Amanda and Kyle's dissolution judgment, with Ross seeking grandparent visitation under section 452.402. Subsequently, Kyle Scott - as a third-party respondent - filed a motion for summary judgment arguing Ross was not entitled to relief because, inter alia, Ross is not the grandmother of the Children.

         The trial court granted the motion for summary judgment in favor of Third-Party Respondents (and the Children's Parents) Kyle and Charlotte, finding Ross is not a grandparent of the Children due to, (1) the termination of her parental rights to the Children's biological mother Amanda; and (2) the termination of Amanda's parental rights to the Children. In other words, the trial court found Ross was not a grandparent of the children due to the adoption of the Children's birth mother (Amanda) and due to the adoption of the Children by the natural father Kyle Scott's new wife Charlotte Scott. Later, an amended judgment was entered stating it was final for purposes of appeal. Ross now appeals the amended judgment.

         II. DISCUSSION

         Ross raises two points on appeal asserting the trial court erred in granting summary judgment in favor of Third-Party Respondents Kyle and Charlotte Scott (the Children's Parents). In Ross's second point, she contends section 452.402 does not preclude an award of grandparent visitation due to the adoption of the Children's birth mother (Amanda).[5] This point is dispositive and will be discussed below.

         A. Standard of Review

         Our Court's review of a trial court's decision granting summary judgment is de novo. B.B. v. Methodist Church of Shelbina, Missouri, 541 S.W.3d 644, 650 (Mo. App. E.D. 2017). "Summary judgment is proper only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. Our Court must view the record in the light most favorable to the non-movant, accepting all reasonable inferences in favor of that party as true. Id. "We accept facts contained in affidavits or otherwise produced in support of the motion for summary judgment as true unless they are contradicted by the non-movant's response to the motion." Id.

         The movant has the burden of establishing a right to judgment as a matter of law on the record as submitted, and if the movant meets this burden, then the non-movant must demonstrate that at least one of the material facts asserted by the movant as undisputed is, in fact, genuinely disputed. Id. A genuine dispute is one that is real, substantial, and not merely argumentative, imaginary, frivolous, or based on conjecture, theory, or possibilities. M.C.-B. ex rel. T.B. v. Hazelwood School Dist., 417 S.W.3d 261, 264-65 (Mo. App. E.D. 2013). To prove a genuine dispute as to the material facts exists, "the non-moving party may not rely on ...


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