Opinion
NO. 2016-CA-000250-ME
02-10-2017
TIM CATRON AND DEBORAH CATRON APPELLANTS v. JUNE UPCHURCH AND BRUCE UPCHURCH; SANDY BROWN; AND JOSHUA CATRON APPELLEES
BRIEF FOR APPELLANTS: G. George Bertram Jamestown, Kentucky BRIEF FOR APPELLEES: Wanda A. White Albany, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE MICHAEL L. MCKOWN, JUDGE
ACTION NO. 14-CI-00027 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND MAZE, JUDGES. JONES, JUDGE: Timothy and Deborah Catron, intervening petitioners in this custody action, appeal from the Wayne Circuit Court's September 3, 2015 order dismissing their custody petition for lack of standing and its January 26, 2016 order overruling their motion to alter, amend, or vacate judgment. After careful review of the record and the parties' legal arguments, we affirm.
I. BACKGROUND
This appeal concerns a custody dispute between the paternal grandparents, the Catrons, and the maternal great, great aunt and uncle, the Upchurches. Both parties are seeking permanent custody of twin girls (the "twins") born to Sandy Brown ("Mother") and Joshua Catron ("Father").
The twins were born prematurely and out of wedlock in June of 2011. While they initially resided with Mother, sometime in August of 2011, the twins and their older half-brother were removed from Mother's home pursuant to a Juvenile Court Order. At this time, the paternity of the twins had not yet been established; so, at Mother's suggestion, the twins were placed in the Upchurches' care following a Temporary Removal Hearing on August 31, 2011. At the same hearing, the Catrons were granted visitation with the twins on the third weekend of each month. The Juvenile Court held a Disposition Hearing on October 18, 2011, where the Upchurches were awarded temporary custody of the twins. Meanwhile, a paternity action was commenced, and results were received in October 2011 indicating that Joshua Catron is the twins' biological father.
While both biological parents have attempted to regain custody of the twins at various points, they have been unable to do so due to recurrent incarceration and drug abuse. Mother did successfully regain custody of the twins in December of 2011; however, after approximately three weeks the twins and their brother were again removed from her home and placed with the Upchurches, where they have remained to present date. An Order of Disposition was entered on February 7, 2012, again granting custody to the Upchurches and visitation on the third weekend of each month to the Catrons.
On January 15, 2014, the Catrons filed a Motion to Review Custody in Wayne Juvenile Court. Shortly thereafter, on February 4, 2014, the Upchurches filed a petition in Wayne Family Court requesting that they be deemed de facto custodians of the twins and given full and permanent custody. The Upchurches' petition named Mother and Father as the respondents. It did not name the Catrons. As a result, the Catrons moved to intervene and filed a third-party petition in the family court action. The Catrons' petition again requested full custody of the twins and additionally requested that the court designate them as the twins' de facto custodians. The Catrons stated that they were the twins' closest blood relatives and had provided the twins with financial support and parenting time. The Upchurches opposed the Catrons' intervention, claiming that the Catrons lacked standing to petition the court for custody of the twins as they were neither the twins' biological parents nor their de facto custodians. Neither Father nor Mother responded to the custody petitions; however, Mother did appear pro se at the final hearing on August 13, 2015.
On September 3, 2015, the Wayne Family Court issued an order granting the Upchurches' motion to dismiss the Catrons from the action for lack of standing, as it found the Catrons could not meet the requirements of de facto custodian status under KRS 403.270. By the same order, the court found by clear and convincing evidence that the Upchurches had been the primary caregivers and financial supporters of the twins for "well over" the statutorily required period, making the Upchurches the twins' de facto custodians. The court also determined that it was in the twins' best interests to be placed in the Upchurches' permanent custody.
Kentucky Revised Statutes.
On September 14, 2015, the Catrons moved the court to alter, amend, or vacate its order. In support of their motion, the Catrons argued that the de facto custodian statute was inapplicable in this case, that the twins' biological parents had waived their rights to custody of the twins, and that, if the de facto custodian statute did apply, the court's order did not contain sufficient factual findings to support its conclusion that the Upchurches met the statutory requirement of providing primary financial support for the twins. The Catrons supplemented their motion on October 26, 2015, with affidavits from Mother and Father in which they waived any superior rights to custody and requested that the Catrons be considered for joint custody of the twins. The Wayne Family Court overruled the Catrons' motion by order on January 26, 2016. The court noted that, until their most recent motion, none of the Catrons' pleadings had mentioned parental waiver or unfitness, and as such, the court lacked authority to rule on those issues. However, the court did amend its findings of fact and conclusions of law to state that, based on the evidence presented up to the date of its September 3, 2015 order, it found that the biological parents had not waived their parental rights and that there was insufficient evidence in the record to support a conclusion of parental unfitness. The court further clarified the reasoning supporting its conclusion that the Upchurches were the primary financial supporters of the twins.
This appeal followed.
II. STANDARD OF REVIEW
"A custody determination is a mixed question of fact and law requiring a two-tier analysis." Ball v. Tatum, 373 S.W.3d 458, 463 (Ky. App. 2012). As to the trial court's factual findings, we will disturb them only if they are clearly erroneous. CR 52.01. However, the trial court's determination that the Catrons lack standing in this matter was a conclusion of law; accordingly, our review of this conclusion is de novo. Carpenter-Moore v. Carpenter, 323 S.W.3d 11, 14 (Ky. App. 2010) (citing Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003)).
Kentucky Rules of Civil Procedure. --------
III. ANALYSIS
Under KRS 403.270(1)(a), a de facto custodian is 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 year or more." Once the court determines that a caregiver qualifies as a de facto custodian, he or she will have the same standing in custody matters as a biological parent. Id.
The circuit court concluded that the Upchurches qualified as de facto custodians. On appeal, the Catrons do not contest the circuit court's conclusion that the Upchurches meet the statutory requirements of de facto custodians. Instead, they assert that the de facto custodian statute is not applicable because this is a custody action between two non-parents. As a primary matter, the Catrons made precisely the opposite argument before the circuit court when they specifically asked that court to designate them as the de facto custodians of the twins. They did not raise non-parent issue until they filed their motion to alter, vacate, or amend after the circuit court determined that the Upchurches were the twins' de facto custodians. As stated in Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky. App. 1997), a litigant cannot utilize a motion pursuant to CR 59.05 to raise arguments and introduce evidence that could and should have been presented to the trial court before the judgment was issued.
Additionally, even if the Catrons had timely raised this argument before the circuit court, we cannot agree with them that this action involves only non-parents. The Catrons never had custody of the twins. They had visitation with them. The twins' custody alternated between the Upchurches and the twins' biological parents with the Upchurches having custody the majority of the time. A review of the record makes clear that when the Upchurches filed for permanent legal custody there was no basis upon which to conclude that the biological parents no longer desired any form of custody or had stepped out of the picture entirely. As such, the Upchurches named both Mother and Father in their petition seeking custody. While the Catrons sought to intervene, the action was between the Upchurches and Mother and Father. While neither Mother nor Father filed an answer, Mother attended the hearing and clearly desired at least visitation with the twins. As noted by the circuit court, this action very much involved the parents and there was no evidence presented to the circuit court when the custody petition was before it that the parents had waived their rights to the twins.
The Upchurches were determined to be de facto custodians. This put them on equal footing with the parents in the custody action. As neither the twins' parents nor their de facto custodians, the Catrons were not entitled to intervene in the custody dispute. The circuit court properly rejected their attempts to do so. And, as already noted, their attempts to convince the circuit court that they had standing due to waiver and/or unfitness, which were not asserted until they filed their motion to alter, vacate or amend, came too late.
Moreover, once the Upchurches were adjudged de facto custodians of the twins they stood in the same shoes as the parents. To gain custody of the twins over the Upchurches, the Catrons would have had to show that the Upchurches were either unfit or had waived their superior right of custody. No such showing was made with respect to the Upchurches.
IV. CONCLUSION
Based on the foregoing, we affirm the Wayne Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANTS: G. George Bertram
Jamestown, Kentucky BRIEF FOR APPELLEES: Wanda A. White
Albany, Kentucky