Opinion
NO. 2019-CA-000719-ME NO. 2019-CA-000735-ME
05-15-2020
STEPHEN GONTERMAN AND JANET GONTERMAN APPELLANTS v. CHAD YOUNG AND MELANIE WOOSLEY APPELLEES AND CHAD YOUNG CROSS-APPELLANT v. STEPHEN GONTERMAN, JANET GONTERMAN, AND MELANIE WOOSLEY CROSS-APPELLEES
BRIEFS FOR APPELLANTS / CROSS-APPELLEES: Louis P. Winner Joseph Riley Schwamb Louisville, Kentucky BRIEFS FOR APPELLEE / CROSS-APPELLANT CHAD YOUNG: Robert J. Bornstein Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NOS. 18-CI-502914 AND 18-CI-502915 CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NOS. 18-CI-502914 AND 18-CI-502915 OPINION
AFFIRMING
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BEFORE: COMBS AND JONES, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: This case involves an appeal and cross-appeal from the same order of the Jefferson Circuit Court, Family Division Four. In No. 2019-CA-000719-ME, Stephen Gonterman and Janet Gonterman appeal from the portion of the family court's order denying their petition to be recognized as de facto custodians of their grandchild, W.T.Y. In No. 2019-CA-000735-ME, Chad Young appeals from the portion of the same order denying his motion for Rule 11 sanctions against the Gontermans and their attorney. We affirm the family court on both issues.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
To preserve the child's identity, we will refer to him by his initials.
Kentucky Rules of Civil Procedure (CR).
FACTS
Chad Young and Melanie Woosley were married in 2007 in Jefferson County, and one child, W.T.Y., was born to them the same year. Woosley filed a petition for dissolution of marriage in 2008, and on July 22, 2010, the Jefferson Family Court entered a decree dissolving the marriage of Young and Woosley. Pursuant to a settlement agreement between them, Young and Woosley shared equal parenting time.
When Woosley decided to move back to Grayson County where her parents, the Gontermans, lived, the court entered an agreed order on May 12, 2012, modifying their parenting time. The parties were granted joint custody, and Woosley was designated as the child's primary residential custodian. Young was granted visitation three weekends per month and shared holidays. During the summer months when the child was not in school, the parties divided time with the child, with each parent to have the child every other week.
After Woosley moved to Grayson County, she and the child lived with the Gontermans in their home on their 16-acre property. Woosley developed an addiction to methamphetamines, resulting in her involvement with the criminal justice system and consequent periods of incarceration. In October 2014, she was arrested for manufacturing methamphetamines in the Gontermans' home while they were away on a trip to California. As a result of this incident, Woosley was convicted of a felony and served time in jail.
Woosley's addiction resulted in the Gontermans assuming a great deal of the caregiving responsibilities for the child. In 2016, Woosley moved from the home with her parents to the trailer where her grandmother had lived prior to her death. The trailer was on the Gontermans' property and across the driveway from their home. The child continued to live with the Gontermans in their residence.
Neither Woosley nor the Gontermans told Young that Woosley was addicted to methamphetamines, that she was incarcerated, or that the Gontermans had assumed much of Woosley's caregiving responsibilities. When Young discovered, in January 2018, that Woosley had used drugs, had a criminal history in that regard, had current charges pending, and was incarcerated, he picked the child up from school in Grayson County and returned with him to his home in Jefferson County.
PROCEDURAL HISTORY
The procedural facts are somewhat complicated. The Gontermans filed a petition in the Grayson Circuit Court seeking de facto custodian status, and Young moved the Jefferson Family Court to grant him sole custody as part of the divorce proceeding. The Grayson Circuit Court transferred the Gontermans' petition to the Jefferson Circuit Court, but the petition was eventually dismissed for lack of prosecution, apparently because it had been transferred to the Jefferson Circuit Court rather than the Jefferson Family Court.
In the meantime, the Gontermans filed two petitions in the Jefferson Family Court, one seeking de facto custodian status and another seeking grandparent visitation. Young's motion for sole custody in the divorce proceeding has been held in abeyance pending this appeal by the Gontermans of the denial of their de facto custodian petition.
The family court held a hearing on the Gontermans' petition on March 8, 2019. The essence of the family court's decision was stated by the court as follows:
Without doubt, the Gontermans have played a significant role in [W.T.Y.'s] care and support. During Ms. Woosley's parenting time, they provided much of the child's personal, educational, and medical needs. Ms. Woosley's involvement was limited, but consistent. She visited the child regularly, purchased food for him, prepared some meals, and attended several school conferences, appointments, and extracurricular activities. She communicated regularly with Mr. Young regarding the child's needs. Though Ms. Woosley relied heavily on her parents, she was regularly involved in [W.T.Y.'s] care.
Equally important, the Gontermans' role as [W.T.Y.'s] caregivers and financial providers ended three weekends of every months [sic] and for half of the summer. During that time, the child was in the care of his other parent, Mr. Young, when Mr. Young was his primary caregiver and financial provider.
Accordingly, the Court finds that the Gontermans have failed to establish by clear and convincing evidence that they were the child's primary caregiver and financial provider for a consecutive period of one year and therefore, they do not qualify as de facto custodians. Because they are not de facto custodians, the Gontermans lack standing to pursue their claim for custody of [W.T.Y.] Accordingly, their petition for custody is dismissed. They may proceed in this consolidated action on their petition for visitation.
At the end of the family court's order, the court also denied Young's motion for Rule 11 sanctions against the Gontermans and their attorney. These two appeals, which have been consolidated, followed.
APPEAL NO. 2019-CA-000719-ME
APPLICABLE STATUTE
The applicable statute is KRS 403.270, which states in relevant part:
Kentucky Revised Statutes.
(1)(a) As used in this chapter and KRS 405.020, unless the context requires otherwise, "de facto custodian" means 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 six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any 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.KRS 403.270(1)(b) requires petitioners to submit clear and convincing evidence, which our Supreme Court has described as "substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt." Vinson v. Sorrell, 136 S.W.3d 465, 468-69 (Ky. 2004) (quoting Fitch v. Burns, 782 S.W.2d 618, 622 (Ky. 1989)).
(b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. 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.
STANDARD OF REVIEW
The standard of review in cases such as this was explained by this Court in Ball v. Tatum, 373 S.W.3d 458 (Ky. App. 2012), as follows:
A custody determination is a mixed question of fact and law requiring a two-tier analysis. First, we review a trial court's factual findings, disturbing them only if they are clearly erroneous—meaning they are unsupported by substantial evidence which is defined as that which is "sufficient to induce conviction in the mind of a reasonable person." B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005). Second, we examine the trial court's application of the law de novo. See Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky. App. 2011).Id. at 463-64.
ANALYSIS
The Gontermans contend that the evidence clearly proves Woosley did not co-parent with them during the 12-month period ending January 2018. They assert the evidence shows conclusively that they were the primary caregivers for W.T.Y. during that time and that the family court erred as a matter of law in refusing to recognize them as de facto custodians. The Gontermans state it was clear error for the court to hold that Woosley's alleged minimal involvement with the child was sufficient to defeat their claim.
The Gontermans rely primarily on Ball, 373 S.W.3d 458, a case in which this Court affirmed a family court's determination of de facto custodian status on the ground that it "was not clear error and will not be disturbed." Id. at 464 (citation omitted). In support of their de facto custodian status, the Gontermans cite the language in Ball that "[t]he fact that Ball also cared for E.N.K. on occasion does not negate the Tatums['] standing to petition for custody because 'exclusive care and exclusive supervision' of the child is not required." Id. (quoting Mullins v. Picklesimer, 317 S.W.3d 569, 574 (Ky. 2010)).
The Gontermans also refer to three unpublished opinions of this Court in support of their argument that the family court erred in not determining them to be de facto custodians of the child.
Young, on the other hand, cites several other cases from this Court in support of his position. In Jones v. Jones, 510 S.W.3d 845 (Ky. App. 2017), this Court held that "Kentucky Courts have also 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." Id. at 849 (citations omitted). In Chadwick v. Flora, 488 S.W.3d 640 (Ky. App. 2016), this Court held that "[a] grandparent who co-parents a child with the natural mother or father does not make the grandparent the primary caregiver." Id. at 644. Further, in Brumfield v. Stinson, 368 S.W.3d 116 (Ky. App. 2012), this Court held that "our law is clear that even if a nonparent provides care and/or financial support for a child, if such is in conjunction with a natural parent, the nonparent will not qualify as a de facto custodian." Id. at 118 (citation omitted). Finally, our Supreme Court recognized in Mullins, 317 S.W.3d 569, that "parenting the child alongside the natural parent does not meet the de facto custodian standard in KRS 403.270(1)(a). Rather, the nonparent must 'literally stand in the place of the natural parent.'" Id. at 574 (quoting 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 (Ky. 2003)).
In denying the Gontermans' petition for de facto custodian status, the family court made factual determinations and gave examples of Woosley's involvement with parenting the child and her heavy reliance on her parents, the Gontermans. The court described Woosley's involvement as "limited, but consistent." Despite much reliance on the Gontermans, the court determined that Woosley was "regularly involved in [W.T.Y.'s] care."
The court also recognized the applicable law and legal standards in determining de facto custodian status. The court cited Ball, the case upon which the Gontermans primarily rely, for the proposition that a parent's occasional involvement would not negate a claim. The court also cited Jones, one of the cases upon which Young relies, and noted that co-parenting with a natural parent defeats such a claim.
The Gontermans also assert that the family court erred by concluding that Young's involvement with the child precluded their de facto custodian status. In support of this assertion, they cite two unpublished cases, Berry v. Harrison, No. 2017-CA-000818-ME, 2018 WL 2277493 (Ky. App. May 18, 2018), and J.K.M. v. W.J.M., No. 2003-CA-000424-MR, 2004 WL 1103600 (Ky. App. May 14, 2004).
In reviewing the court's order, we note the court's reference to Young's role in the child's life over the years. The court found that Young exercised his parenting time in accordance with the 2012 agreed order and missed only one weekend visit in those five years when his car broke down. The court also determined Young had exercised his summer visitation rights. The court stated Young was married, lived in an apartment in Louisville, and had a full-time job. Further, Young provided for all the child's personal and financial needs while the child was in his care; cooked the family meals; took the child on vacation, fishing, and other outings; and had an extended family nearby. We conclude that the court's references to Young's involvement in the care of the child were to demonstrate the extent of his parenting of the child and did not constitute error.
CONCLUSION
In denying the Gontermans' claim, we cannot say that the court made factual findings that were clearly erroneous. Those findings were supported by substantial evidence. Nor can we say that the court erred in its application of the law to the facts. The Gontermans were required by KRS 403.270(1)(b) to prove their case by "clear and convincing evidence[.]" Although the result in Ball affirmed the granting rather than the denial of de facto custodian status, like our decision in Ball, "[w]e are persuaded the court considered all the relevant factors and discern no clear error or abuse of discretion in its decision[.]" 373 S.W.3d at 466.
The portion of the order of the Jefferson Circuit Court, Family Division Four, denying the Gontermans de facto custodian status is affirmed.
CROSS-APPEAL NO. 2019-CA-000735-ME
Chad Young, the appellee in the above appeal, cross-appeals from the portion of the family court's order denying his motion for Rule 11 sanctions against the Gontermans and their attorney, Louis Winner. We also affirm this portion of the court's order.
Near the end of the family court's order, it stated as follows:
Lastly, considering the parties' well-established ability and willingness to work together for [W.T.Y.'s] benefit, the level of acrimony during these proceedings, particularly between counsel, was unwarranted. Counsel
are advised that they are to adhere to the Code of Professional Courtesy in all respects at all times. They shall avoid personal criticism and refrain from any other discourteous behavior. This includes, but is not limited to, statements made in court and in court pleadings. Mr. Bornstein's motion for Rule 11 sanctions is denied. Mr. Winner's motion for attorney fees, due to alleged improprieties by Mr. Bornstein, is also denied.
Young argues in this appeal that the family court erred in that it failed to make any findings of fact concerning its ruling and failed to otherwise in any way articulate a basis for its denial of the motion. He argues that the statements in the Gontermans' de facto custodian petition were false, that the Gontermans knew they were false, and that Winner either knew or would have known had he made a reasonable inquiry that the statements were false.
Rule 11 provides in pertinent part:
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
The Gontermans and Winner argue in response that Young failed to preserve any error in this regard by requesting the family court to make findings. Further, they assert that they did not violate Rule 11 and that the family court's denial of Young's motion was not an abuse of discretion. Finally, they request this Court to determine that Young and his attorney violated Rule 11 sanctions themselves by filing their motion and this appeal and that they should be sanctioned and required to pay the Gontermans' attorney fees in preparing their brief in this appeal.
CR 76.12(4)(c)(v) requires a statement of preservation of error. Here, Young failed to preserve error by not making a request that the family court make specific findings of fact. See CR 52.04; Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417, 421 (Ky. App. 1988) ("The appellant failed to preserve the error of not making specific findings for our review.").
Concerning the merits of a motion for Rule 11 sanctions, this Court held in Clark as follows: "The test to be used by the trial court in considering a motion for sanctions is whether the attorney's conduct, at the time he or she signed the allegedly offending pleading or motion, was reasonable under the circumstances." 762 S.W.2d at 420 (citations omitted). Further, "where sanctions have been denied, our review is limited to a determination of whether the trial court abused its discretion." Id. See also Lexington Inv. Co. v. Willeroy, 396 S.W.3d 309, 312-13 (Ky. App. 2013).
Because Young failed to preserve any alleged error and because we conclude the family court did not abuse its discretion in denying Young's motion for sanctions, we affirm the family court's order. Further, we decline to impose sanctions on Young or his attorney.
ALL CONCUR. BRIEFS FOR APPELLANTS /
CROSS-APPELLEES: Louis P. Winner
Joseph Riley Schwamb
Louisville, Kentucky BRIEFS FOR APPELLEE /
CROSS-APPELLANT CHAD
YOUNG: Robert J. Bornstein
Louisville, Kentucky