Opinion
NO. 2013-CA-001562-ME
07-18-2014
HOLLY BLAKEY APPELLANT v. CLIFTON BUNCH APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Ralph D. Gibson Somerset, Kentucky BRIEF FOR APPELLEE: Matthew B. Dehart Jamestown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NO. 12-CI-00213
OPINION
AFFIRMING
BEFORE: JONES, STUMBO, AND THOMPSON, JUDGES. JONES, JUDGE: This case arises out of a civil custody action wherein Appellee was designated the primary residential custodian of the parties' minor child. On appeal, we consider the trial court's designation of venue and certain findings of fact. For the reasons set forth below, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
Appellant, Holly Blakey (hereinafter "Holly"), gave birth to a daughter (hereinafter "Minor Child") on June 26, 2010. Holly was fifteen (15) years of age at the time of Minor Child's birth. Initially, Holly and Minor Child resided with Holly's mother, Angela Haynes (hereinafter "Angela"), and stepfather, Donald Haynes (hereinafter "Donald"), in Pulaski County, Kentucky.
Shortly after Minor Child's birth, an action was commenced in Pulaski Family Court wherein DNA testing was conducted to establish the identity of Minor Child's biological father. Appellee Clifton Bunch (hereinafter "Clifton"), a resident of Russell County, was determined to be Minor Child's biological father. After establishing Clifton's paternity, the Pulaski Family Court entered an order granting father visitation with Minor Child and directing the parties to submit an agreement as to custody.
Clifton and Holly had previously been in a relationship but the relationship ended prior to Minor's Child's birth.
The parties apparently never submitted the ordered agreement as to custody.
In November 2010, Holly and Minor Child left Angela's house. They moved in with Holly's biological father, Kendrick Blakey (hereinafter "Kendrick"), who was residing in Russell County with his girlfriend, Lisa Thomas (hereinafter "Lisa").
Holly enrolled herself at Russell County High School and enrolled Minor Child in a daycare in Russell County. Clifton continued to exercise his visitation rights with Minor Child. On May 2, 2012, while Holly and Minor Child were still residing in Russell County, Clifton filed an action in Russell Family Court ("the Russell County Custody Action") seeking joint custody of Minor Child.
This motion originally listed Kendrick Blakey as a party as guardian for Holly, who was still a minor. The petition was amended on September 28, 2012, to name only Holly as the respondent upon her emancipation. However, Holly was not properly served with this motion until October 22, 2012.
On August 26, 2012, Holly, Kendrick, and Lisa became involved in a domestic dispute at Kendrick's residence. The police were called and criminal domestic violence/assault charges were filed by Kendrick against Holly. As a result, Holly moved out of Kendrick's residence and back in with Angela in Pulaski County.
Minor Child was not present at the time of the dispute.
Following the incident at Kendrick's house, Clifton filed an emergency juvenile custody motion in Russell County ("the Russell County Juvenile Action"), alleging that Minor Child was not in a safe and stable environment. The Russell Family Court granted Clifton's juvenile motion for emergency custody ("ECO") and ordered joint custody with Minor Child primarily living with Clifton and allowing Holly visitation in Russell County. At approximately the same time Clifton filed his juvenile action in Russell County, Holly filed a civil custody action in Pulaski County ("the Pulaski County Custody Action"), which was properly served on Clifton. Clifton filed a motion to transfer the Pulaski County Custody Action to Russell County, but the motion was not immediately heard by the trial court.
On October 4, 2012, Holly appeared with counsel in Russell County for the Russell County Juvenile Action. She moved the Russell County trial court to vacate the emergency custody order and transfer the action to Pulaski County. During that juvenile hearing, the trial court indicated that it would not transfer the case and ordered the parties into immediate mediation.
Holly alleges that this juvenile action originated in Pulaski County but was transferred without her knowledge to Russell County by the Pulaski County Attorney in an effort to collect child support from Clifton. The record on appeal is void of any information that would verify this claim.
During mediation, without counsel present, the parties entered into a parenting agreement ("Parenting Agreement") allowing for alternating parenting weeks with Minor Child. They presented the Parenting Agreement to the Russell County trial court as part of the Russell County Juvenile Action. Even though the hearing and mediation took place as part of the Russell County Juvenile Action, the trial court entered the Parenting Agreement in the Russell County Custody Action as well. The Parenting Agreement was entered prior to any review by Holly's counsel. Holly maintains that she understood that the Parenting Agreement would be reviewed by counsel prior to entry.
The parties mediated without counsel because Clifton's counsel could not be present for the mediation. Holly agreed to proceed with the mediation without the presence of her counsel after the court mediator indicated that any mediated agreement would be reviewed by each party's counsel prior to entry.
On October 16, 2012, Holly filed a motion in the Russell County Custody Action, to alter, amend, or vacate the Parenting Agreement on the basis that it was entered before her counsel had an opportunity to review it. Holly also alleged that she was never properly served in the Russell County Custody Action and that the Russell County Custody Action was not properly before the court during the October 4, 2012 hearing. The trial court heard Holly's motion on January 17, 2013. Due to the issues with service, the court set aside the October 4, 2012 Parenting Agreement and set a new hearing in the Russell County Custody Action for April 10, 2013.
The court continued the week-by-week parenting schedule in the interim.
Prior to the April 10th hearing, Holly moved the Russell County trial court to dismiss the Russell County Custody Action alleging that the proper venue was Pulaski County. Holly alleged that even though Clifton filed the Russell County Custody Action before she filed the Pulaski County Custody Action, service was perfected in the Pulaski County Custody Action before service was perfected in the Russell County Custody action. The Russell County trial court denied Holly's motion.
The Russell County trial court then conducted the custody hearing as scheduled. Clifton, Holly, Kendrick, Angela, Lisa, Donald, and Clifton's mother, Delilah Bunch, testified at the hearing.
Clifton testified that he provides a stable environment for Minor Child; that he is now married with a child on the way; that he and his wife own and reside in a four bedroom home; that only he, his wife, and Minor Child, reside in that home; that he and his wife are employed full-time; that they engage in activities with Minor Child, such as church, story time at the library, and t-ball; and that Minor Child has appropriate care during the days when he and his wife are at work. Clifton also testified that he believed Holly was not taking proper care of Minor Child's medical needs, specifically in regards to vaccinations, dental care, and a "place" on Minor Child's eye; that Angela and Donald's home is inappropriate for Minor Child as there are too many people living there; that Holly has no job; that Holly has no independent means of transportation; that Holly hops from place to place; and that Holly was not the primary caretaker of Minor Child.
Holly testified that she recently graduated from high school; that she is eight months pregnant with her second child; that she is no longer in a relationship with the new baby's father; that she provides all care for Minor Child when the child is with her; that she is unemployed but has applications pending at local restaurants; that Angela's house is very spacious; that Minor Child has a good relationship with the others living in that home; that Minor Child cries when Clifton comes to pick her up; that Clifton has held several jobs since Minor Child was born; that Clifton does not provide health benefits for Minor Child; that she intended to take Minor Child to receive vaccinations, but was interrupted due to the emergency custody order; and that Minor Child goes to several different places for care during the days while Clifton is at work.
Kendrick testified that while Holly is a good mother, he viewed the atmosphere at Angela's house as being "very, very bad" with "too many people in the house for a baby to be raised up right." However, Kendrick testified that he had not actually been in Angela's house since their divorce in 1999, but rather heard chaos and shouting during phone conversations. Kendrick also testified that while Holly and Minor Child were living with him, Holly would sometimes take Minor Child to daycare and then skip school, stay out late, and miss her 11:00 p.m. curfew.
Lisa testified that Holly could not manage Minor Child by herself. She explained that while Holly and Minor Child resided with her and Kendrick, she was the primary caretaker of Minor Child during the evenings because Holly "always had plans and liked to run the roads."
Delilah Bunch, Clifton's mother, testified that she was concerned about Holly moving back and forth all the time; that Angela's house was overcrowded; that Holly does not have her own transportation; that Holly relies solely on her mother; and that she has general concerns regarding morals and values with Minor Child being around Holly's family.
Donald testified that he was employed; that he and Angela live in a four bedroom home; that there are multiple outdoor activities for the children; that the house is not chaotic; that there is no problem with transportation for Holly; that he is a Sunday School superintendent and the family attends church regularly; and that he has observed Holly taking good care of Minor Child.
Angela testified that Holly and Minor Child have their own room in the house; that there are four additional children in the house and that they all get along; that she does not work because she cares for the children and the household; that her home was approved for a kinship placement by the Department for Families and Children; that Holly is having a hard time finding a job because she is pregnant; and that she believes Holly is "the best mom" to Minor Child.
Following the conclusion of testimony, the Russell County trial court entered its findings of fact and conclusions of law. It found that "Holly clearly loves [Minor Child]; however, Clifton has most consistently demonstrated the ability and willingness to properly care for, nurture, and provide an appropriate and stable home for [Minor Child]." The Russell County trial court therefore determined that it was in the best interest of Minor Child for the parties to be granted joint custody with Clifton named as the primary residential parent and Holly having timesharing according to the court's guideline visitation. Holly filed a timely motion to alter, amend, or vacate, which was denied.
This appeal followed.
II. ANALYSIS
A. Venue
Venue relates to the proper place for a claim to be heard. Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162 (Ky. 2007). In child custody cases, in which the best interests of a child are paramount, "looking to the 'more convenient and most interested' forum provides a common-sense approach." Lancaster v. Lancaster, 738 S.W.2d 116 (Ky. App. 1987) (citing Shumaker v. Paxton, 613 S.W.2d 130 (Ky.1981)). Matters of venue are left to the trial court's discretion and must be upheld absent an abuse of discretion. Williams v. Williams, 611 S.W.2d 807 (Ky. App. 1981).
We must first address whether the Russell County trial court was the appropriate court to determine the venue issue given the pending Pulaski County Custody Action. Holly cites Blanton v. Sparks, 507 S.W.2d 156 (Ky. 1974), to support her contention that the Pulaski County trial court should have decided the venue issue. In Blanton, the Court held that all other things being equal, when the parties file for divorce in two different counties, the court where the first action was filed is the court that is the most appropriate forum to determine where venue properly lies. Holly maintains that her Pulaski County Custody Action was "filed" first because service was not perfected in the Russell County Custody Action until after she filed and perfected service in the Pulaski County Action. As such, she maintains that the Pulaski County trial court should have decided the venue issue instead of the Russell County trial court.
Blanton's first-to-file rule, however, is of no help to Holly because it is undisputed that Clifton filed the Russell County Custody Action before Holly filed the Pulaski County Custody Action. The commencement/filing date is the determinative date, not the service date as Holly maintains. See Martin v. Fuqua, 539 S.W.2d 314, 315 (Ky. 1976) ("Summons in the Christian County suit was served on May 13, 1976, and in the Todd County suit on May 15, 1976, but that is of no moment because it is the commencement of the action that governs the order of preference, as between the two trial court, in determining the issue of venue.").
Clifton listed Kendrick as the respondent in that petition due to Holly's minority at the time the petition was filed. While there was apparently no summons properly issued to Kendrick, the record supports Clifton's assertion that the issue with the summons was through no fault of his own.
Holly next asserts that the Russell County action was not properly commenced because the Clerk of Court did not issue summonses. There is no evidence in the record to support any inference that the Clerk of Court failed to issue summonses because of any act or omission by Clifton's counsel. To the contrary, the record supports the conclusions that the Clerk's failure to do so was for unknown reasons and that Clifton's counsel was not initially aware of the Clerk's failure to issue the summonses.
We begin with Kentucky Rules of Civil Procedure (CR) 3.01. It provides: "[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith." Strict adherence to CR 3.01 means that an action is not considered properly filed until the Clerk of Court issues the summons. However, in Nanny v. Smith, 260 S.W.3d 814 (Ky.2008), the Kentucky Supreme Court re-examined this issue.
In Nanny, the plaintiff desired to bring a personal injury action against the defendant arising out of a car accident. The applicable statute of limitations dictated the plaintiff had until Saturday, October 18, 2003, to file her personal injury suit. However, because the statute of limitations was set to terminate on a Saturday, the plaintiff actually had until Monday, October 20, 2003, to commence her action. On Friday, October 17, 2003, the plaintiff hand-delivered her complaint to the appropriate circuit court clerk. A time date stamp indicated the clerk received the plaintiff's complaint on October 17, 2003, at 2:35 p.m. However, the clerk did not file the complaint or issue the required summons until Tuesday, October 21, 2003, one day after the statute of limitations expired. Consequently, the circuit court dismissed the plaintiff's case.
On discretionary review, the Kentucky Supreme Court equitably tolled the statute of limitations because the clerk's failure to file the plaintiff's complaint and issue the required summons violated the mandates of CR 4.01(1) and exceeded the plaintiff's control. Nanny, 260 S.W.3d at 818. Specifically, the court reasoned:
Once [plaintiff] delivered the complaint, she could reasonably expect that the summons would be issued within the statutory period. At that point, [plaintiff] had no further duty to ensure that the clerk [filed the complaint and] issued the summons within the limitations period. CR 4.01 ("[U]pon the filing of the complaint ... the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either" serve the summons and complaint by mail or transfer the summons and complaint to an authorized person for delivery and service); KRS [Kentucky Revised Statutes] 30A.030(1); Louisville & N.R. Co. v. Smith's Adm'r, 10 Ky. L. Rptr. 514, 87 Ky. 501, 9 S.W. 493, 495 (1888) ("[I]t is the official duty of the clerk to issue the summons in accordance with law, and it is not incumbent upon the plaintiff to see that he issues it in accordance with law."). Nor did [plaintiff] have the power to compel the clerk to issue summons since, by statute, the clerk is under the supervision of the Chief Justice, not [plaintiff] or her attorney. KRS 30A.010(2).Id. at 817. The Kentucky Supreme Court acknowledged that "promptness in filing is essential to the proper function of the court system." Id. at 818. However, under the facts of the particular case, the court reasoned that equity required the tolling of the statute of limitations. Id.
Because [plaintiff] had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having the summons issued in time. We believe that under these facts, [plaintiff] should not be held responsible for such circumstances. See Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958-59 (1933) (upholding the petitioner's right to maintain an election
contest on the basis that he was prevented by circumstances beyond his control from having the summons issued in time and that the delay in issuing the summons was due solely to the fault of the circuit clerk over whom the petitioner had no control).
We find Nanny to be factually similar to the case at hand and quite instructive. Similar to the plaintiff in Nanny, Clifton took reasonable steps to ensure his complaint was delivered to the clerk's office. Just like the Nanny plaintiff, Clifton knew that the Clerk had received his complaint before Holly filed her competing action. Nonetheless, for reasons unclear to this Court, the Clerk did not issue the summonses.
Once an attorney has timely delivered the complaint to the proper court clerk, the attorney's job is complete. The power then shifts to the court clerk to promptly perform his or her required duties. See KRS 30A.010 et al. It would be manifestly unjust to punish an attorney, and in turn his or her client, for the clerk's failure to adequately execute his or her responsibilities. To conclude otherwise would be patently unfair and would punish an innocent plaintiff for actions entirely beyond his or her control.
Because Clifton "had neither the power nor the duty to ensure that the clerk perform official duties, he was prevented by circumstances beyond his control from having" his complaint filed and summonses issued before Holly filed her action. Nanny, 260 S.W.3d at 817. Therefore, under these unique circumstances, we hold that Clifton's complaint should be deemed the first to have been filed even though CR 3.01 was not technically satisfied until sometime after Holly filed her action.
Accordingly, we find no error with respect to the Russell County trial court's decision to adjudicate the venue issue. Having so determined, we now consider whether the Russell County trial court abused its discretion when it determined that venue was more appropriate in Russell County than Pulaski County.
Minor Child resided in Russell County with Holly and Kendrick from November 2010 to August 2012. Clifton, Minor Child's paternal relatives, and Minor Child's paternal grandfather all reside in Russell County. It is undisputed that Minor Child was residing in Russell County at the time Clifton initiated the Russell County Custody Action on May 2, 2012. Additionally, even after Holly moved to Pulaski County, Minor Child continued to reside in Russell County at least every other week from October 2012 until April 2013. Minor Child also attended activities in Russell County such as daycare, t-ball and story time. Given the nature and quantum of Minor Child's contacts with Russell County, we cannot say that the trial court abused its discretion in determining that venue was more appropriate in Russell County than in Pulaski County.
B. Consideration of Domestic Violence under KRS 403.270(3)
Holly's second assignment of error is that the trial court improperly considered evidence of domestic violence or an ECO, which had not been filed in this action or for which a request for judicial notice had not been made. In its findings of fact, the trial court discussed the altercation between Holly and Lisa that occurred in August 2012 as follows: "[t]here was no evidence that domestic violence has occurred in either parent's home in [Minor Child's] presence although Holly was charged criminally in late 2012 after the altercation between her and Lisa.
The record is unclear as to the status of Holly's criminal domestic violence/assault charge as Holly alternatively asserts that the charges were dismissed or diverted.
The court also stated that "Clifton was granted emergency temporary custody fall 2012 after he filed a petition alleging the occurrence of domestic violence, lack of independent housing and general instability for [Minor Child] while in Holly's care." It is our view that this was a procedural recitation of the events leading up to the final hearing as this statement was included in such a section of the court's findings. This is in contrast to the above discussed substantive finding regarding the criminal domestic violence charge. Inasmuch as the mention of domestic violence was in relation to the allegations contained in Clifton's motion, we see no error in the trial court's inclusion of this statement. We also find no error in the trial court's mention of a petition filed in the juvenile case. See Mauldin v. Bearden, 293 S.W.3d 392, 396 (Ky. 2009)("One of the primary benefits of Family Court is that the same judge presides in all domestic court matters affecting that family. Because of this model, the family court had several contacts with all the parties, heard testimony and arguments during the earlier proceedings, and had available the entire record and exhibits relating to these parties.")
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KRS 403.270(3) states that the court "shall not consider conduct of a proposed custodian that does not affect his relationship to Minor Child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected Minor Child and Minor Child's relationship to both parents." As summarized in Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983), "when the misconduct of a proposed custodian is advanced as a factor in the determination of custody, evidence of such misconduct may be heard and received, but before giving any consideration to such misconduct, the court must conclude, in his reasonable discretion, that such misconduct has affected, or is likely to affect, the child adversely. If such a determination is made, the trial court may then consider the potential adverse effect of such misconduct as it relates to the best interests of the child."
We believe that the trial court did properly consider the evidence insomuch as it stated that the alleged domestic violence did not occur in Minor Child's presence. We do not believe that the trial court's reference to Holly's pending criminal charges means that the trial court took those charges into account when determining custody, particularly when the trial court noted in the same sentence that the conduct giving rise to those charges occurred outside of Minor Child's presence. We find no error in this regard.
C. Findings of Fact supported by Substantial Evidence
Holly's final assignment of error is that the trial court's finding that "Clifton has most consistently demonstrated the ability and willingness to properly care for, nurture, and provide an appropriate and stable home for the [the child]" is not supported by sufficient credible evidence. On appeal, a reviewing court examines a trial court's findings of fact on an abuse of discretion standard. "The test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)).
A judgment is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id. An abuse of discretion is consistently defined as a court acting arbitrarily, unreasonably, unfairly, or in a manner "unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004).
KRS 403.270(2), the statute utilized in making custody determinations, states in relevant part:
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors 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;
Having thoroughly reviewed the record in this case, we are confident that the circuit court properly considered the factors listed above and based its ultimate findings on substantial evidence. The record supports the appropriateness of Clifton's home, his steady employment, his engagement with Minor Child, and his attention to her medical needs. Conversely, the record contains ample evidence regarding Holly's instability, lack of employment, crowded living conditions, and ability to care for Minor Child without substantial assistance from others. In sum, we find no error in this regard.
III. CONCLUSION
For the foregoing reasons, we affirm the Russell Family Court's decision.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Ralph D. Gibson
Somerset, Kentucky
BRIEF FOR APPELLEE: Matthew B. Dehart
Jamestown, Kentucky