Heard: November 8, 2019
Petition filed in the Nantucket Division of the Probate and
Family Court Department on July 9, 2018. A motion to dismiss
was heard by Randy J. Kaplan, J.
Mary-Ellen Manning for the grandparents.
E. Cherny (Joana L. Stathi also present) for the mother.
Present: Kinder, Neyman, & Wendlandt, JJ.
Blixt v. Blixt, 437 Mass. 649, 665-666 (2002), cert,
denied, 537 U.S. 1189 (2003), the Supreme Judicial Court set
forth certain pleading requirements for a petition under G.
L. c. 119, § 39D (grandparent visitation statute),
pursuant to which a grandparent may seek visitation with a
child over the objection of the custodial parent who has a
fundamental constitutional right to make basic determinations
for the child's welfare. The court set forth two
situations pursuant to which a grandparent could seek
visitation: first, where the grandparent alleges a
preexisting relationship with the subject children and
second, where the grandparent did not have a preexisting
relationship with the grandchildren. In Martinez v.
Martinez-Cintron, 93 Mass.App.Ct. 202, 205-206 (2018),
we applied Blixt in light of the notice pleading
requirements for civil complaints delineated in
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008), to a petition pursuant to the second basis. This case
presents occasion to apply Blixt in view of
Iannacchino to the first basis. Because the petition
here and accompanying affidavits fail to set forth sufficient
allegations plausibly suggesting the type of relationship
required to rebut the presumptive validity of the parental
decision concerning grandparent visitation, we affirm.
briefly summarize the facts, assuming as we must that the
allegations of the paternal grandparents' petition are
true and drawing any reasonable inferences therefrom in their
favor. See Warner-Lambert Co. v. Execuquest
Corp., 427 Mass. 46, 47 (1998). At the time of the
petition at issue on appeal, the defendants Angel Conrad
Frazier (mother) and J Pepper Frazier, II (father) were in
the midst of divorce proceedings. By stipulation, the mother
was granted temporary sole physical and legal custody of the
children,  while the father's parenting time was
limited to three hours each week on Sunday mornings because
of his substance use disorder. The paternal grandmother,
Elizabeth Frazier, and the paternal grandfather, J Pepper
Frazier, filed a petition pursuant to the grandparent
visitation statute for visitation, along with a motion to
establish visitation and supporting affidavits.
paternal grandparents alleged "a significant
relationship between the grandparent(s) and the child(ren)
and that it is in the best interest of the minor child(ren)
that petitioner(s) be granted visitation with the
child(ren)." Specifically, the paternal grandmother
averred that she had a "close relationship" with
the children. She explained that the paternal grandparents
had "over the years enjoyed many activities" with
the children, including "lunches, dinners, and
visits." The children took sailing lessons at the
paternal grandparents' yacht club, swimming lessons at
another Nantucket club, and tennis lessons at both clubs.
They also attended a weekly bingo night at the paternal
grandparents' golf club, along with their cousins, and
enjoyed holidays with the paternal grandparents by visiting
their home in Florida (although the children stayed at a
nearby house rented by their parents).
paternal grandfather similarly averred that he enjoyed a
"close personal relationship" with the children and
spent time with them over meals and holidays. He was
particularly close with his namesake grandson whom he
described as "very garrulous and affectionate"
mother opposed visitation between the children and the
paternal grandparents outside of the father's weekly
three-hour long parenting time and moved to dismiss the
petition. Following a nonevidentiary hearing, the Probate and
Family Court judge dismissed the petition. The paternal
review an order allowing a motion to dismiss de novo.
Martinez, 93 Mass.App.Ct. at 204. "We accept as
true the allegations in the complaint and draw every
reasonable inference in favor of the plaintiff."
Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674,
676 (2011). As set forth supra, two Supreme Judicial
Court decisions -- Blixt ...