Opinion
NO. 2017-CA-000818-ME
05-18-2018
AUSTIN BERRY APPELLANT v. DORAN HARRISON AND JUDITH HARRISON APPELLEES
BRIEF FOR APPELLANT: Wesley A. Hunt Marion, Kentucky BRIEF FOR APPELLEES: Melinda M. Ormsby Mayfield, Kentucky Rebecca P. Biehslich Fulton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES FAMILY COURT
HONORABLE SHEILA N. FARRIS, SPECIAL JUDGE
ACTION NO. 16-CI-00252 OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Austin Berry (father), appeals from the Graves Family Court's amended order determining that Doran Harrison (grandfather) and Judith Harrison (grandmother) (collectively grandparents) were de facto custodians of A.A.B. (child), finding it was in the best interest of child that she be in the joint custody of father and grandparents, and ordering that child primarily reside with grandparents with father exercising timesharing.
Child lived with Mallory Berry (mother) and grandparents, with father paying child support and exercising timesharing in accordance with temporary orders in parents' dissolution case. Mother suffered from brain cancer that progressed to stage four and ultimately resulted in her death on June 8, 2016. Father was exercising timesharing when mother died and he retained physical custody of child. Grandparents were dissatisfied with this arrangement and filed a petition for de facto custody on June 17, 2016, pursuant to Kentucky Revised Statutes (KRS) 403.270 and KRS 405.020. Grandparents argued that in the year proceeding mother's death, they fully cared for child and were her primary financial supporters, and it was in child's best interest that they be awarded custody and father have timesharing.
The family court held bifurcated evidentiary hearings on grandparents' claims. On December 9, 2016, evidence was presented as to whether grandparents were de facto custodians of child.
Mother was diagnosed with brain cancer in 2007, and father was aware of this diagnosis when he began dating mother in December 2008. Child was born in 2010 to mother and father, who married on July 30, 2011.
When child was born, mother and father lived with and were primarily supported financially by grandparents in Mayfield, Graves County. However, mother and father established a separate residence with child starting in early December 2011. Although mother filed for dissolution of the marriage on May 29, 2012, she attempted a reconciliation with father and they continued to reside together until early September 2012, when Mother moved back in with grandparents, bringing child with her. Mother then gave birth to another child (brother) in 2013.
Mother and father were divorced by interlocutory decree on January 27, 2014. Father was excluded as being brother's father. At the time the decree was entered, there were only temporary orders in effect as to custody of child, visitation and child support. The family court awarded joint custody to mother and father, with mother being the primary residential parent and father being granted standard timesharing. This included timesharing every other weekend and a midweek evening.
Although the court documents from the dissolution case were not introduced into evidence, there is no indication that custody was contested. Compare with Robison v. Theele, 461 S.W.3d 772, 777-78 (Ky.App. 2015). Therefore, the time period needed for grandparents to establish they are the de facto custodians of child was not tolled by the portion of KRS 403.270(1)(a) which provides that "[a]ny period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period" even though a permanent custody order was never entered in the dissolution case.
Father exercised all timesharing until he moved from Murray to Salem in early 2016. He then continued to exercise all timesharing except the midweek evening timesharing. When mother brought child to Texas while mother was receiving treatment, father drove there to exercise his weekend timesharing. Father attended child's games and some of her school events when he was not timesharing.
Father paid court ordered child support of $48.99 per week. Father's income increased from what it was when child support was ordered, but he did not voluntarily increase his payments to mother. Father fully provided for child when child was in his care.
Father's income in 2015 was $26,474 and his year-to-date income in 2016 was approximately $29,000 through August 21, 2016.
Mother had very little income. However, of that income, mother mostly spent the money in her bank account on herself, although she did order some clothing online for children. Mother did not buy groceries or contribute toward grandparents' household expenses.
Mother's bank records showed that in addition to child support she received $488.67 a month in social security insurance and was paid a total of $1,312 for coaching soccer.
Grandparents' 1040 form for 2014 showed they had a gross adjusted income of $177,408 and claimed mother and the children as dependents. Grandparents bought most of the things child needed. By dividing household expenses between their home's residents, grandfather calculated he spent approximately $1,048 per month for the care of child.
As indicated by medical records, mother's condition was very serious. She had three surgeries and several other treatments. She was left debilitated and had periods of confusion.
During the time mother and child resided with grandparents, father was aware that child was being cared for by mother and grandparents. However, there was evidence father did not understand how little capability mother had to care for herself or child during the last year of her life.
Witnesses testified about mother's activities in the last year of her life: mother attended child's t-ball and soccer games in the summer of 2015; mother posted photos on social media as depicting her being involved in outings with children and involved in their care; mother attended school functions with grandparents during child's kindergarten year; and mother arranged all timesharing with father.
Mother was concerned with her ability to care for herself and her children and, therefore, granted grandparents power of attorney which included granting grandparents the "power to act jointly on behalf of my children . . . including any decisions regarding their health, education and welfare." Mother's unprobated will was also introduced, which appointed grandparents to serve as co- guardians of her children and made grandparents the trustees of her children's inheritance.
When mother was home, grandmother always arranged for someone to be present to care for mother, child and brother. Grandparents' parents watched mother, child and brother while grandparents worked. Grandmother did not believe mother was able to supervise her children or schedule who would be caring for them.
Grandmother made all arrangements for how child would get to kindergarten and where she would go after school and informed child's school that mother was not to arrange who would pick up child. Grandmother had the primary responsibility of taking the children to the doctor, though mother sometimes attended their appointments. While mother attempted to plan a birthday party for child, grandmother overruled her choices and planned the party herself. Grandmother also arranged all play dates and social outings for child. Although mother was present at outings with children, mother was a mere spectator.
Mother could not physically care for child or herself. She spent much of her time in bed and at times was confused. Although mother enjoyed short public outings, afterwards mother would go straight to bed and not get up for the rest of the day. Mother sometimes had seizures where parts of her body would clench and one time could not see and was on prescription medicine to control these and other symptoms.
There was testimony about the specific parental tasks mother could and could not do, and parental tasks she engaged in was on a limited basis when she was having a good day. Grandmother usually helped child with homework. While mother occasionally helped child get ready for school, grandmother usually got child up and ready for the day and mother was usually in bed when grandmother left to take child to school.
Mother was loving toward the child but did not have the stamina to care for child. Mother could not bathe child but would talk to child while grandparents bathed child. Mother did not prepare child's food.
The family court orally ruled that grandparents met the standard for establishing by clear and convincing evidence that they were the primary caregivers and primary financial supporters of child and, thus her de facto parents. While mother was not absent, the family court ruled that mother abdicated her role to grandparents, father's child support payments were not sufficient to support child and any money mother had was primarily spent on purchases for herself.
At the evidentiary hearing held to determine what was in the best interest of child regarding who should have custody of her and what her primary residence should be, grandparents and father both presented evidence that they were able to care for child and provide her with an appropriate environment. Grandparents wanted child and brother to be raised together, believed child wanted to return to their home and child was a part of their community. They believed father tried to keep child from them after mother's death and acted against child's best interest in limiting their interactions with child. They were concerned that father allowed child to eat dinner by herself and that child had lost interest in reading since being in his exclusive custody. They wanted father to be involved in child's life, but for child to live with them.
Father and his witnesses testified that he, his girlfriend and his parents were very involved in raising child and making sure child did not forget her mother. Father and girlfriend owned a home and child had her own room. According to child's first grade teacher, child excelled academically and made friends. Father was involved with child's school activities and sports. Father wanted to be able to raise child himself.
Father testified he denied grandparents overnight visits after mother died because he did not think it would be appropriate for child to sleep in the same house where mother passed away. He testified that his actions towards grandparents that they deemed uncooperative were in response to them immediately filing for custody. It was undisputed that once in place, father fully cooperated with the court orders regarding weekend visitation and daily phone calls.
The guardian ad litem (GAL) testified she saw child three times and that child's wishes were consistent each time: child wishes to go home to grandparents' home, wants to be at her old school and live with her brother and also wants time with father. The GAL testified she believes this arrangement would be in child's best interest and both parties are reasonable. The GAL testified that child is bonded to her grandparents, brother and home. While father is also doing a fine job, the GAL was concerned about how father used the power he had regarding visitation while he had custody.
On January 9, 2017, the family court issued a written order granting de facto status to grandparents, granting both parties custody and making grandparents primary residential custodians of child, with father to have timesharing. The family court found that grandparents were child's de facto custodians because grandparents were both the primary financial supporters of child and the primary caregivers of child:
The Court finds [mother and father] were or should have been well aware that they were not financially supporting [child] and abdicated that responsibility to [grandparents]. The evidence is overwhelming that [grandparents] were [child's] main financial providers, not [mother] and not [father]. [Grandparents] have proven by clear and convincing evidence that they provided the primary financial support to [child] for the
period of June 2015 through June 2016. . . . The Court recognizes that [father] paid the ordered child support obligation and continuously exercised visitation but that does not rise to the level of primary financial support during the period of June 2015 through June 2016.
. . . [T]he evidence shows that [mother] abdicated her role as primary caregiver. [Grandparents] bathed, dressed, fed, educated, and transported [child]. [Mother] was physically unable to care for herself much less be responsible for a six year old. She neither had the strength or stamina or mental capacity to even supervise the child independently and she knowingly allowed her parents to do so. [Father] was aware of [mother's] physical condition and her capacity to care for a child. She had a malignant brain tumor prior to their meeting. She had seizures and a recurrence during her pregnancy with [child]. On at least one occasion he traveled to M.D. Anderson for surgical procedures and treatment with the entire family. [Father] did exercise alternating weekend visitation with [child] and is by all indications an appropriate dad, but he did nothing to provide care for the child when it was not his scheduled weekend. Under the circumstances the Court finds [father] abdicated his parental care taking duties. With regard to primary care, [grandparents] have proven by clear and convincing evidence that they provided primary care to [child] for the period of June 2015 through June 2016.
The family court then considered evidence relating to custody and who should be child's primary residential custodian. The family court noted that mother indicated in her will that she wanted grandparents to have custody of child and brother, and child consistently told the GAL that she wished to live with grandparents. Child previously primarily lived with grandparents, had relationships with her great-grandparents, was integrated into grandparents' community and brother resided with grandparents. While child adjusted well to school in father's community, she did not have longstanding ties there. Child was placed with grandparents by mother so that mother's and child's daily needs could be met. Therefore, the family court determined it was in the best interest of child that father and grandparents share custody with grandparents designated as child's primary residential custodians with timesharing for father, three weekends a month along with alternating vacation and holiday periods.
Father filed a motion to alter, amend or vacate. On April 13, 2017, the family court entered an amended order eliminating language indicating father abdicated his responsibilities but otherwise denied father's motion.
Father concedes that the family court's findings of fact were supported by substantial evidence but argues the family court omitted relevant facts from the record and disagrees with the conclusions of law the family court drew from the facts. He notes that in the year before mother's death, she was employed as an assistant soccer coach, drove child and was always the one he exchanged child with. Father argues mother sufficiently co-parented child with grandparents, so the de facto period did not start and, though grandparents were heavily involved, they did not usurp mother's role.
Father argues the family court erred by finding grandparents were child's primary financial supporters where he fully paid his child support and did not have the income to pay more than what was ordered until December 2015. He argues that he should not be judged to not be child's primary financial supporter just because grandparents are better off financially.
Father also argues that after the family court determined the grandparents had de facto status, he still should have been preferred for custody and designated as the primary residential custodian because he is child's natural father.
In child custody cases, we review findings of fact for clear error and then if "the factual findings do not present clear error, the analysis shifts to an examination of the trial court's legal conclusions, looking for abuse of discretion using a de novo standard." Jones v. Jones, 510 S.W.3d 845, 848 (Ky.App. 2017).
In Kentucky, when one of a child's parents dies, the default outcome is that the surviving parent "if suited to the trust, shall have the custody, nurture, and education of the children who are under the age of eighteen (18)." KRS 405.020(1). However:
a person claiming to be a de facto custodian, as defined in KRS 403.270, may petition a court for legal custody of a child. The court shall grant legal custody to the person if the court determines that the person meets the definition of de facto custodian and that the best interests of the child will be served by awarding custody to the de facto custodian.KRS 405.020(3).
"De facto custodian" is defined in relevant part as "a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person . . . for a period of one (1) year or more if the child is three (3) years of age or older[.]" KRS 403.270(1)(a). "Importantly, the statute requires a person seeking to be named a de facto custodian to prove he is the child's primary caregiver and primary financial supporter—not that he is the child's sole, only or exclusive provider[.]" Ball v. Tatum, 373 S.W.3d 458, 463 (Ky.App. 2012). It is not enough for persons claiming to be de facto custodians to provide significant care and financial support if those persons are still "co-parenting" with a parent. Brumfield v. Stinson, 368 S.W.3d 116, 118-19 (Ky.App. 2012). "Kentucky Courts have . . . repeatedly held that when a nonparent shares the parenting responsibilities with a natural parent, the nonparent cannot, as a matter of law, acquire de facto custodian status." Jones, 510 S.W.3d at 849.
It is not enough that a person provide for a child alongside the natural parent; the statute is clear that one must literally stand in the place of the natural parent to qualify as a de facto custodian. To hold otherwise would serve to expand a narrowly drawn statute intended to protect grandparents and other persons who take care of a child in the absence of a parent into a broad sweeping statute placing all stepparents on an equal footing with natural parents.Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky.App. 2001) abrogated on other grounds by Moore v. Asente, 110 S.W.3d 336, 359-62 (Ky. 2003) as recognized by Boone v. Ballinger, 228 S.W.3d 1, 9-10 (Ky.App. 2007). "The provisions of this statute are not triggered unless the biological parent has abdicated the role of primary caregiver and primary financial supporter to the person who claims to be the de facto custodian for the required period of time." London v. Collins, 242 S.W.3d 351, 358-59 (Ky.App. 2007).
We believe the situation before us is most closely analogous to that in Ball. In Ball, 373 S.W.3d at 464-65, the Court of Appeals ruled the family court could properly find by clear and convincing evidence that the grandparents established they were the special needs child's de facto custodians. Although the mother was still present in the home with the child and the grandparents, there was evidence that the grandparents provided 95% of the financial support for the child, took the child to 95% of physical therapy appointments which were critical to her well being and gave the child her medication. Though the mother obtained social security benefits for the child, these were not given to the grandparents for the child's support and support from other sources was not enough to care for child. The mother in Ball was not functioning as a parent:
it appears [the mother's] parenting role was minimal at best—she knew she did not have to personally care for her daughter because [the grandmother] would make certain [the child] received her medication on time,
attended therapy and had food to eat. . . . For all practical purposes, the [grandparents] had assumed the role of parents and stood in [the mother's] place because the evidence established they were caring for and providing for [the child] while [the mother] was partying.Id. at 464.
Although the reasons why mother did not provide parenting of child are different than in Ball, the de facto statute is not concerned with "whys" or whether the parent was unable or unwilling to provide primary caregiving and primary financial support to the child. Instead, the only important consideration is what was provided for the child and by whom, and whether it was sufficient to establish that a non-parent qualified as a de facto custodian. Based upon the testimony of grandparents' witnesses, there was clear and convincing evidence to support the family court's ruling that grandparents were child's de facto custodians because mother simply could not provide care for child due to mother's medical condition and mother's and father's financial contribution to child's support was not primary. We agree that the evidence supported the family court's finding that mother's role in the timesharing arrangements and attempts to parent child were simply insufficient to establish she continued to parent child alongside grandparents. While father did provide care for child when child was in his care and did provide child support, father simply did not have child in his care enough of the time to defeat grandparents' role of being child's primary caregivers and the child support he provided to mother, even if it had been used to support child was simply insufficient to provide for child's needs. While if mother had provided all her funds from father, her social security benefits and her job to support child, this might have been enough to make her a co-financial supporter of child, the evidence was clear that she spent these funds on herself rather than on child because she knew grandparents would support child for her. Therefore, the family court did not abuse its discretion in finding by clear and convincing evidence that grandparents qualified as child's de facto custodians.
We note that our unpublished cases have determined that a parent's full payment of court-ordered child support does not defeat a claim that someone else is that child's primary financial supporter if the parent's payments are insufficient to support the child. Haggard v. Haggard, No. 2005-CA-002016-ME, 2006 WL 2520284, 6 (Ky.App. 2006) (unpublished); Page v. Dodson, No. 2002-CA-001931-MR, 2003 WL 22064252, 3 (Ky.App. 2003) (unpublished). Similarly, if the parent's child support payments would have been sufficient to primarily support child but were diverted from such use by the other parent, a non-parent can be credited with having been the child's primary financial supporter. Combs v. Wagers, No. 2005-CA-001982-ME, 2006 WL 1562156, 4 (Ky.App. 2006) (unpublished). --------
While this result is somewhat troubling because father may have been trying to act in the best interest of mother and child by not challenging mother's role as primary custodian despite her deficits, knowing mother's and child's time together was limited, and child was being well cared for while with mother, the way our de facto custodian statute was written the motivations of the parties involved are irrelevant. The statute is only concerned with who cared for the child. The reasoning behind the placement only becomes important when considering who should have custody of a child after the de facto status of other caregivers is established.
Similarly, the statute does not provide any exceptions to prevent someone from qualifying as a de facto custodian because one of the biological parents did not know the other biological parent with primary residential custody was abdicating caregiving and financial responsibilities to someone else. Thus, what father did or did not know about mother's condition or ability to care for child is also irrelevant.
"Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020." KRS 403.270(1)(b). "The court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interest of the child." KRS 403.270(5). In determining custody, "equal consideration shall be given to each parent and to any de facto custodian." KRS 403.270(2). Based on this statutory language, father is incorrect that he enjoys preferred status as child's father; once the family court established that grandparents were child's de facto custodians, they were entitled to equal consideration for custody.
In deciding the custody issue, the family court was required to consider the best interest of child and to consider all the relevant factors provided in KRS 403.270(2) including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de facto custodian; and
(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including . . . whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
In considering the family court's decision on custody, we must respect its broad discretion in custody matters rather than considering whether we would have decided the matter differently and must only reverse if the family court's rulings were clearly erroneous or constituted an abuse of discretion. Ball, 373 S.W.3d at 465. Though child has suffered a tragedy in being deprived of her mother at such a tender age, it is evident that child is deeply loved and treasured by grandparents, father, father's girlfriend and both sides of child's extended family. We applaud their commitment to child. The family court had a difficult decision to make because both grandparents and father were outstanding choices for custody and primary residence of child, but due to the distance and child's attendance at school, equal parenting time would not be feasible. The family court properly considered the statutory factors in deciding to grant joint custody to father and grandparents, and designate grandparents as child's primary residential custodians. The family court was clearly concerned with maintaining the bond between father and child by granting father liberal timesharing, but also recognized the important role that grandparents had and would continue to have in raising child and where child considered home.
Accordingly, we affirm the Graves Family Court's amended order determining that grandparents were de facto custodians of child, finding that it was in the best interest of child that she be in the joint custody of father and grandparents, and ordering that child primarily reside with grandparents with father exercising timesharing.
TAYLOR, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS WITH SEPARATE OPINION.
MAZE, JUDGE, CONCURRING: I fully agree with the reasoning and result of the majority's well-written and well-reasoned opinion. However, I write separately to make it clear that I believe that the result is mandated by the particular facts of this case. Nevertheless, I am concerned with the trial court's suggestion that Father should have been aware that Mother was not acting as the Child's primary caregiver and was not spending her income and his child support for the benefit of the Child. I am also concerned with the suggestion that Father should have realized that his child support payments were insufficient to meet the Child's needs.
The record is very clear that Father remained current on all support obligations, and there is no evidence that there was any motion seeking to increase his child support payments. Furthermore, Father fully exercised his visitation rights and provided for the Child whenever he exercised visitation. And the trial court did not cite to any evidence showing that Father was aware of the full extent of Grandparents' caretaking and support roles. Thus, any suggestion that Father was derelict in his obligations is not supported by the evidence.
I must also emphasize that a fit parent should not lose custody of his child simply because another person, such as a grandparent, may be better able to provide for the child. And as the majority correctly notes, non-parents cannot acquire de facto custodian status simply by sharing parenting responsibilities and support with a custodial parent. But in this case, there was substantial evidence to support the trial court's conclusions that Grandparents were the primary caregivers and financial supporters of Child. Hence, the trial court did not clearly err in finding that they were entitled to consideration as de facto custodians. However, there are important parental interests at stake here, and I would strongly advise against extending this conclusion beyond the unique facts of this case. BRIEF FOR APPELLANT: Wesley A. Hunt
Marion, Kentucky BRIEF FOR APPELLEES: Melinda M. Ormsby
Mayfield, Kentucky Rebecca P. Biehslich
Fulton, Kentucky