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Frazier v. Frazier

Appeals Court of Massachusetts, Nantucket

December 30, 2019

ELIZABETH FRAZIER & another[1]
v.
ANGEL CONRAD FRAZIER & another.[2]

          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.

          David E. Cherny (Joana L. Stathi also present) for the mother.

          Present: Kinder, Neyman, & Wendlandt, JJ.

          WENDLANDT, J.

         In 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.

         Background.

         We 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, [3] 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.

         The 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).

         The 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" towards him.

         The 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 grandparents appealed.[4]

         Discussion.

         We 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 ...


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