Lindsay v. Walker

2015 UT App 184

THE UTAH COURT OF APPEALS

TINA LINDSAY,
Petitioner and Appellant,
v.
BRETT WALKER, SACHA WALKER, WINSOME GRANT, COLIN GRANT,
JUNE GRANT, AND RON WILKINSON,
Respondents and Appellees.

Opinion
No. 20140091-CA
Filed July 30, 2015

Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 094402434

Rick L. Sorensen, Attorney for Appellant
Terry L. Hutchinson, Attorney for Appellees Brett
Walker, Sacha Walker, Colin Grant, and June Grant
Nathan S. Shill, Attorney for Appellee Ron
Wilkinson

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

PEARCE, Judge:

¶1 Tina Lindsay appeals the district court’s dismissal of her
petition for grandparent visitation rights to the minor child O.G.
Lindsay also appeals the district court’s denial of her motion
seeking relief from summary judgment on her civil conspiracy
cause of action. We affirm.
Lindsay v. Walker

BACKGROUND1

¶2 Winsome Grant (Mother) gave birth to O.G. in October
2005. In March 2006, Mother filed a paternity action in the
district court naming Lindsay’s son, Bo Driggs (Father), as O.G.’s
father and seeking orders on child support, visitation, and
related issues. Mother and Father stipulated to a temporary
order in the paternity action that gave Father visitation rights.

¶3 Despite the stipulation, Father had difficulty visiting O.G.
due to the intransigence of Mother and her parents, Colin and
June Grant (the Grants). Mother and the Grants ‚used every ploy
imaginable‛ to deny Father access to O.G., including changing
their cell phone number, refusing to answer their home phone,
and refusing to answer the door for Father, Lindsay, or even the
police. In May or June 2007, Mother ‚signed over‛ her rights to
O.G. to the Grants. When Father contacted the Grants to exercise
his court-ordered visitation, Colin Grant told him that he would
have to sign over his parental rights to the Grants to obtain

1. This appeal concerns a claim for grandparent visitation that
was resolved by a motion to dismiss and a cause of action for
civil conspiracy that was resolved by a motion for summary
judgment. Accordingly, we recite the background facts in the
light most favorable to Lindsay as the nonmoving party. See
Hunsaker v. American HealthCare Capital, 2014 UT App 275, ¶ 9,
340 P.3d 788 (‚When determining whether the trial court
correctly granted a motion to dismiss, we accept the factual
allegations in the complaint as true and consider them, and all
reasonable inferences to be drawn from them, in the light most
favorable to the nonmoving party.‛ (citation and internal
quotation marks omitted)); Faucheaux v. Provo City, 2015 UT App
3, ¶ 2 n.3, 343 P.3d 288 (‚On an appeal from a summary
judgment, we recite the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.‛).

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visitation. Father refused. Father last saw O.G. in June or July
2007.

¶4 In July 2007, the Grants arranged for Mother to leave the
country. O.G. remained in Utah with the Grants. Father obtained
a writ of assistance and a pickup order from the district court,
which required Mother to attend a September 2007 hearing.
Mother did not personally attend the hearing, but her attorney
Ron Wilkinson did. The district court left the temporary orders
in place and set another hearing for November 2007.

¶5 In October 2007, Colin Grant and Wilkinson sent O.G. to
Mother in New Zealand. Mother, the Grants, and Wilkinson
failed to appear at the November hearing. The district court
awarded temporary custody of O.G. to Father. Father and
Lindsay attempted to locate O.G. but were unable to do so. At
some point, O.G. was returned to the United States, but neither
Father nor Lindsay was allowed to see the child.

¶6 In June 2008, Father died. In September 2008, the district
court held a show cause hearing in the paternity action to
consider whether the case should be dismissed. Lindsay
attended the hearing. The district court dismissed the paternity
action in light of Father’s death. At this time, Lindsay informed
Wilkinson that she wanted formal grandparent visitation with
O.G. Wilkinson responded that the Grants had no problem with
that, that he had the authority to set up grandparent visitation
with Lindsay, and that he would call Lindsay to iron out the
details. Relying on Wilkinson’s representations, Lindsay did not
file a petition for grandparent visitation.2

¶7 Lindsay attempted to follow up with Wilkinson and the
Grants to secure visitation with O.G. Lindsay eventually
retained her own attorney, who contacted Wilkinson’s office to
solidify the visitation arrangement. Only then did Lindsay learn

2. We again note that we recite the facts in the light most
favorable to Lindsay as the nonmoving party.

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that Mother’s sister and brother-in-law, Sacha and Brett Walker,
had adopted O.G. Lindsay alleges that Mother, the Grants, the
Walkers, and Wilkinson conspired to complete the adoption
without notice to Lindsay and before she could secure
formalized visitation.

¶8 The Walkers refused to allow Lindsay visitation or
contact. Lindsay brought this action in the district court, seeking
grandparent visitation with O.G. Lindsay also sought money
damages against Mother, the Grants, the Walkers, and
Wilkinson on multiple theories, including civil conspiracy.

¶9 Early in the litigation, the district court granted a motion
to dismiss Lindsay’s grandparent visitation claim. The district
court concluded that O.G.’s adoption by the Walkers cut off any
rights to visit O.G. that Lindsay might have had under Utah law.
The district court also concluded that Lindsay lacked standing to
seek grandparent visitation after the adoption and dismissed
that claim. The district court denied the motion to dismiss as to
Lindsay’s other causes of action, including civil conspiracy.

¶10 After the parties conducted discovery, the defendants
moved for summary judgment on Lindsay’s remaining claims. 3
At a hearing on the motion, it became apparent that Lindsay’s
memorandum opposing summary judgment on the civil

3. We note that the discovery process in this case was a
contentious fight, involving multiple objections and delays that
ultimately led to depositions being taken in the courtroom with
the judge available to resolve disputes. We also note that
Lindsay was forced to retain new trial counsel mid-litigation
after her counsel was disbarred in an unrelated disciplinary
matter. Her replacement trial counsel was involved in the case
for only a few weeks before the defendants filed their summary
judgment motion. Lindsay’s appellate counsel does not appear
to have been involved in the district court proceeding.

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conspiracy claim failed to identify any disputed facts. Lindsay
had also failed to submit an affidavit or any other evidence to
controvert the facts underlying the motion for summary
judgment. Lindsay attempted to remedy this shortcoming by
filing a supplemental memorandum the day after the district
court heard the motion. By the time Lindsay filed the
supplemental memorandum, the district court had issued its
written decision granting summary judgment on the civil
conspiracy claim.4

¶11 Lindsay filed a motion for relief under rule 60(b) of the
Utah Rules of Civil Procedure, arguing that the deficiencies in
her opposition memorandum resulted from her attorney’s
excusable neglect. Specifically, she argued that her counsel
suffered from a medical condition that impaired his ability to
adequately respond to the motion for summary judgment. The
district court conducted a hearing on Lindsay’s rule 60(b)
motion. At the hearing, the district court noted that it had
interacted with Lindsay’s counsel during the period of alleged
impairment and ‚found him to be . . . a perfectly sound, able
attorney.‛ The district court concluded that Lindsay had not
demonstrated excusable neglect under the totality of the
circumstances and denied the rule 60(b) motion.

¶12 Lindsay appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Lindsay argues that the district court erred in concluding
that O.G.’s adoption by the Walkers eliminated Lindsay’s
standing to seek grandparent visitation. ‚The issue of whether a
party has standing is primarily a question of law, which we

4. The district court also granted summary judgment on
Lindsay’s other remaining claims. Those rulings are not at issue
on appeal.

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review for correctness.‛ R.P. v. K.S.W., 2014 UT App 38, ¶ 4, 320
P.3d 1084.

¶14 Lindsay also argues that the district court erred in
denying her rule 60(b) motion for relief from summary judgment
on her civil conspiracy claim. ‚We review a district court’s
denial of a rule 60(b) motion for relief from judgment for an
abuse of discretion.‛ Robinson v. Baggett, 2011 UT App 250, ¶ 13,
263 P.3d 411 (citation and internal quotation marks omitted).

ANALYSIS

I. Standing to Seek Grandparent Visitation

¶15 Lindsay argues that the district court erred when it
concluded that O.G.’s adoption cut off Lindsay’s standing to
seek grandparent visitation. Lindsay contends that she ‚remains
the grandmother of O.G.‛ because Father was Lindsay’s son and
Father’s ‚parental rights were not terminated before he passed
away.‛ Lindsay further argues that her standing to seek
grandparent visitation survives O.G.’s adoption because
Mother’s relatives, and not strangers, adopted O.G.

¶16 Utah Code section 30-5-2(1) provides that ‚*g+randparents
have standing to bring an action in district court by petition,
requesting visitation in accordance with the provisions and
requirements of this section.‛ Utah Code Ann. § 30-5-2(1)
(LexisNexis 2013). Lindsay appears to be correct that, for the
purposes of statutory grandparent visitation, her legal status as
O.G.’s grandparent survived Father’s death.5 The district court
did not, however, dismiss Lindsay’s petition because of Father’s

5. Utah Code section 30-5-2(2) identifies certain factors that may
be relevant in determining a grandparent-rights petition, one of
which is that ‚the petitioner’s child, who is a parent of the
grandchild, has died.‛ Utah Code Ann. § 30-5-2(2)(e) (LexisNexis
2013).

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death. Rather, the district court dismissed the petition because
the Walkers had adopted O.G.

¶17 Adoption of a child by anyone other than a natural
parent’s spouse acts to terminate the natural parent’s rights in
the child. Id. § 78B-6-138 (2012). ‚A pre-existing parent of an
adopted child is released from all parental duties toward and all
responsibilities for the adopted child, including residual rights,
and has no further rights with regard to that child,‛ no later than
‚the time the final decree of adoption is entered.‛ Id. § 78B-6-
138(1). Once an adoption decree is entered, ‚the adoptive parent
or parents and the child shall sustain the legal relationship of
parent and child, and have all the rights and be subject to all the
duties of that relationship.‛ Id. § 78B-6-139. We have previously
noted that the adoption statute ‚suggests that grandparent
visitation cannot carry over into an adoption where all other
rights of the natural family have been extinguished.‛ Kasper v.
Nordfelt, 815 P.2d 747, 750 (Utah Ct. App. 1991).

¶18 Since our observation in Kasper v. Nordfelt, the Utah
Legislature has modified the grandparent visitation statute in a
number of ways to strike a balance between the visitation rights
of grandparents and the rights of adoptive parents. When we
decided Kasper in 1991, the grandparent visitation statute did not
address the effect of adoption on grandparent visitation rights.
See Utah Code Ann. § 30-5-2 (Michie 1989) (‚The district court
may grant grandparents reasonable rights of visitation to
grandchildren, if it is in the best interest of the grandchildren.‛).
In 1998, the Legislature amended the statute to provide that
adoption of a child ‚terminates all rights of a biological
grandparent to petition for visitation.‛ Id. § 30-5-2(3) (Lexis
1998).

¶19 In 2000, the Legislature amended the statute to create a
presumption that an adoption terminated the grandparents’
right to visitation, but the amendment allowed a grandparent to
rebut the presumption with evidence that the child and
grandparent had an established relationship and that continuing
the relationship was in the best interest of the child. See id.

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§ 30-5-2(4)(a) (Lexis Supp. 2000). The 2000 amendment also
provided that the presumption did not affect ‚visitation rights of
a grandparent that have been ordered by a court pursuant to this
section, if the grandchild is adopted by the grandchild’s
stepparent.‛ Id. § 30-5-2(4)(b).

¶20 In 2002, the Legislature eliminated the 2000 amendment’s
rebuttable presumption and replaced it with the statutory
language at issue in this case: ‚The adoption of a grandchild by
the grandchild’s stepparent does not diminish or alter visitation
rights previously ordered under this section.‛ Id. § 30-5-2(3)
(LexisNexis Supp. 2002); see id. (2013). This plain statutory
language reveals that the Legislature has considered the effect of
adoptions on grandparent visitation rights and decided that
grandparent visitation can survive the grandchild’s adoption
only when (1) the grandchild’s stepparent adopts the child and
(2) the visitation was ordered prior to the adoption. Neither of
those conditions exists here.6

¶21 O.G.’s adoption also results in Lindsay’s inability to meet
the statutory definition of a ‚grandparent.‛ ‚‘Grandparent’
means a person whose child, either by blood, marriage, or
adoption, is the parent of the grandchild.‛ Utah Code Ann. § 30-
5-1(3) (LexisNexis 2013). Because of O.G.’s adoption, when
Lindsay filed her petition for visitation rights, Father was no
longer O.G.’s legal parent. See id. § 78B-6-138 (2012); cf. Chesonis
v. Brown, 2006 UT App 497, ¶ 6, 153 P.3d 796 (‚The parental
rights of their son having been surrendered, the Chesonises did

6. When we interpret statutory language, we presume that the
Legislature is aware of our case law. State v. Houston, 2011 UT
App 350, ¶ 12, 263 P.3d 1226. Accordingly, we presume that
when the Legislature amended the grandparent visitation
statute, it knew that this court interprets Utah Code sections
78B-6-138 and -139 as terminating, after an adoption, a
grandparent’s standing to seek visitation rights under Utah
Code section 30-5-2.

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not fit within the statutory definition of ‘grandparent’ and, thus,
lacked standing to bring a petition for visitation.‛). Because
Father was no longer O.G.’s legal parent, Lindsay was no longer
a person ‚whose child . . . is the parent of the grandchild‛ within
the statute’s definition. See Chesonis, 2006 UT App 497, ¶¶ 5–6
(citation and internal quotation marks omitted).

¶22 Notwithstanding O.G.’s adoption, Lindsay argues that
she possesses standing to seek grandparent visitation because
O.G. was adopted by Mother’s relatives. Lindsay relies heavily
on the aforementioned Kasper v. Nordfelt, 815 P.2d 747 (Utah Ct.
App. 1991), and particularly on its statement that grandparents
may not seek visitation ‚where the rights of natural parents are
terminated and the grandchildren are adopted by nonrelatives,‛
id. at 750. Reasoning inversely, Lindsay argues that she may seek
visitation because ‚*Father’s+ parental rights were never
terminated because he died before the adoption occurred and
O.G. was adopted by relatives.‛

¶23 Lindsay’s reliance on Kasper is misplaced. Kasper does not
stand for the proposition that Lindsay claims it does. Kasper
identified a set of circumstances wherein grandparent visitation
is not available, but Kasper did not hold that the inverse is true,
i.e., that outside that set of circumstances, visitation is available.
Indeed, Kasper did not consider whether the statute applies
differently to relatives than to strangers. As noted above, we
decided Kasper under an earlier version of Utah Code section
30-5-2 that did not expressly acknowledge the effect of adoption
on grandparent visitation rights. See Utah Code Ann. § 30-5-2
(Michie 1989) (‚The district court may grant grandparents
reasonable rights of visitation to grandchildren, if it is in the best
interest of the grandchildren.‛). The current version of the
statute forecloses the avenue that Lindsay claims Kasper opened
to grandparents of adopted children.

¶24 Lindsay also points out that, despite the adoption, the
Grants retain their grandparental status vis-à-vis O.G. and
Mother assumes the status of an adoptive aunt. Lindsay argues
that this arrangement is distinguishable from the ‚anonymous

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and confidential‛ adoption Kasper addressed. See 815 P.2d at 751.
She suggests that grandparent visitation should be unavailable
only when a nonrelative adoption gives the child ‚a completely
fresh start.‛ See In re B.B.M., 514 N.W.2d 425, 429 (Iowa 1994).
We recognize that from Lindsay’s perspective, the result the
statute dictates appears manifestly unfair; that she alone among
the litigants finds herself excluded from O.G.’s life without a
legal path to restore her relationship with a child she adores.
And indeed, the Utah Legislature could have drawn the line that
Lindsay advocates and created a statutory framework that
would permit grandparent visitation rights to survive when a
family member other than a stepparent adopts. But the
Legislature did not. Our constitutional responsibility is not to
redefine the line based upon competing considerations (even
when those considerations may be compelling) but to interpret
the statute as written.

¶25 We conclude that O.G.’s adoption vested parental rights
to O.G. in the Walkers and necessarily terminated Father’s
parental rights. The termination of Father’s rights means that
Lindsay cannot meet the statutory definition of ‚grandparent‛
for purposes of Utah Code section 30-5-2. This situation also
does not fall into the narrow circumstance in which the
Legislature has permitted grandparent visitation rights to
survive an adoption. The district court correctly concluded that
Lindsay lacks standing to seek statutory grandparent visitation.

II. Denial of Lindsay’s Rule 60(b) Motion

¶26 Lindsay also argues that the district court abused its
discretion in denying her rule 60(b) motion seeking relief from
summary judgment on her civil conspiracy claim. See Utah R.
Civ. P. 60(b). ‚Rule 60(b) affords a district court broad discretion
to relieve a party from a final judgment due to mistake,
inadvertence, surprise, or excusable neglect.‛ Harrison v.
Thurston, 2011 UT App 231, ¶ 7, 258 P.3d 665 (citations and
internal quotation marks omitted). Lindsay argues that the
district court entered summary judgment on her civil conspiracy
claim because her opposition memorandum did not contain a

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supporting affidavit, that the absence of that affidavit resulted
from her trial attorney’s medical condition, and that she
promptly filed a supplemental memorandum correcting the
deficiencies. Lindsay argues that these circumstances constitute
excusable neglect and that the district court abused its discretion
in denying her motion for relief.

¶27 Lindsay does not identify the nature or severity of her
trial attorney’s medical condition, nor does she explain how that
condition prevented the preparation and filing of a rule-
compliant opposition to summary judgment. Instead, she makes
the conclusory assertion that her trial attorney ‚clearly was not
competent to properly file an opposition to the motion for
summary judgment.‛ However, the district court rejected
Lindsay’s argument that her trial attorney was medically
impaired, noting that the court had interacted with the attorney
during the relevant time period and ‚found him to be . . . a
perfectly sound, able attorney.‛7 Lindsay has not demonstrated
that the district court abused its discretion in determining that
Lindsay’s trial counsel’s medical condition did not support a
finding of excusable neglect.8

¶28 In her reply brief, Lindsay argues for the first time that
she should be granted rule 60(b) relief not because of her trial
counsel’s medical condition but because she should not

7. The district court’s interaction with Lindsay’s trial attorney
consisted of a telephone hearing on an extension request, which
the district court described as ‚*not+ the shortest phone call.‛ At
the hearing, Lindsay’s trial counsel successfully argued for the
requested extension over the objections of opposing counsel.

8. We note that the district court also indicated that it had
reviewed Lindsay’s supplemental memorandum and was ‚not
convinced that considering the supplemental memorandum . . .
would have necessarily changed the Court’s analysis on
summary judgment.‛

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personally suffer the loss of her claim due to her trial attorney’s
failures. We do not consider this argument because it was raised
for the first time in a reply brief. See Allen v. Friel, 2008 UT 56,
¶ 8, 194 P.3d 903.

CONCLUSION

¶29 The district court correctly concluded that O.G.’s
adoption extinguished Lindsay’s standing to seek grandparent
visitation. Lindsay has failed to demonstrate that the district
court abused its broad discretion in denying her rule 60(b)
motion for relief from summary judgment on her civil
conspiracy claim. For these reasons, we affirm.

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