Summary
In McGeorge v. Brown, No. 2017-CA-000983-MR, 2019 WL 259443, at *3 (Ky.App. Jan. 18, 2019) (unpublished), the Court interpreted A.H. as equally applying to custody proceedings where intervention was sought and explained that "standing to seek custody is immaterial to the issue of whether the [grandparents] could intervene as a matter of right under CR 24.01."
Summary of this case from V.M. v. CommonwealthOpinion
NO. 2017-CA-000983-MR
01-18-2019
TODD MCGEORGE AND CAROL MCGEORGE APPELLANTS v. JUSTIN BROWN, AIMEE JO BROOKS AND I.B., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: John Michael Gambrel Pineville, Kentucky BRIEF FOR APPELLEE: Clyde Bishop Johnson Pineville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 08-CI-00508 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES. LAMBERT, D., JUDGE: Appellants Carol and Todd McGeorge ("the McGeorges") appeal an order of the Bell Circuit Court which found they lacked standing to seek custody of their granddaughter ("I.B."). For the following reasons, we reverse and remand for a new hearing consistent with this opinion.
Judge Debra Hembree Lambert authored this opinion prior to her accepting election to the Kentucky Supreme Court effective January 7, 2019.
The child's name is abbreviated to protect her privacy.
I. FACTS AND PROCEDURAL BACKGROUND
The first order concerning custody of I.B. was entered in November of 2008, when she was nineteen-months-old. The order directed that I.B.'s father Justin Brown ("Justin"), and her mother Aimee Brooks ("Aimee") have joint custody, with Justin being the primary custodian.
Eight years later, on December 28, 2016, Aimee filed a motion for contempt against Justin alleging he withheld visitation with I.B. from her. In response, on January 18, 2017, Justin filed a motion to modify custody requesting full custody of I.B. Then, on March 9, 2017, the McGeorges (who are the child's paternal grandparents) filed an intervening petition for custody. The McGeorges each submitted an affidavit in support of the petition. The affidavits are essentially identical and allege that the McGeorges take care of I.B.'s medical needs, clothing, schooling and school supplies, extracurricular activities, take her to church with them and have done so since she was six-weeks-old, and their six-year-old biological daughter has developed a sister-like bond with I.B. The affidavits further allege that their son Justin served in Iraq, suffers from post-traumatic stress disorder, and has drug and criminal issues. They similarly state that Aimee has not been a stable part of I.B.'s life and has never provided financially for I.B., as she also has drug and criminal problems.
On April 12, 2017, the circuit court held a hearing that was "limited to the issue of whether the proposed intervening petitioners . . . possess standing to seek custody of [I.B.]." The court ultimately held in an Order entered May 11, 2017, that the McGeorges "failed to carry their burden of demonstrating standing to seek custody." The McGeorges filed a motion to vacate that ruling on May 16, 2017. The circuit court denied the McGeorges' motion to vacate, and this appeal followed.
Initially, upon review, we issued a show cause order believing that the McGeorges failed to name a necessary party: I.B.'s great-grandmother Ethel Hobbs, who was granted intervention in this matter. However, upon closer review of the trial record, we realized that Hobbs was not a necessary party to the appeal as the trial court granted Hobbs' intervention on the same date as it overruled the McGeorges' motion to vacate.
II. ANALYSIS
"Our standard of review as to whether intervention should have been granted is a clearly erroneous standard." Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). "A factual finding is not clearly erroneous if it is supported by substantial evidence." Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002), overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008) (internal quotations omitted). "Substantial evidence is [e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence . . . has sufficient probative value to induce conviction in the minds of reasonable men." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations omitted).
The circuit court in this case focused solely on the issue of standing in the proceedings below. Therefore, the parties' arguments on appeal primarily focus on whether the McGeorges had standing to seek custody of I.B. But, as we will expand upon below, we feel the circuit court erred in addressing only the issue of standing and not whether the McGeorges could intervene as a matter of right. Because "an order denying a motion to intervene as a matter of right is immediately appealable," this appeal is properly before us. Carter, 170 S.W.3d at 407.
The statutes that govern a party's ability to intervene in a proceeding are Kentucky Rules of Civil Procedure ("CR") 24.01 and 24.02. CR 24.01 gives a party the power to intervene by right if its mandates are met. CR 24.02, on the other hand, "provides trial courts with discretion to allow intervention in cases if the interest of the movant so warrants, even if the asserted interest fails to satisfy the dictates of CR 24.01." A.H. v. W.R.L., 482 S.W.3d 372, 375 (Ky. 2016). Though they did not directly invoke it in their motion to intervene, the McGeorges sought to intervene under CR 24.01, which states in pertinent part:
Intervention of right.
Permissive intervention.
(1) Upon timely application anyone shall be permitted to intervene in an action (a) when a statute confers an unconditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties.Clearly the child custody statute, Kentucky Revised Statute ("KRS") 403.270, does not confer upon the McGeorges an unconditional right to intervene as required by subpart (a). Thus, we will analyze this matter under subpart (b) of the statute. Though not precisely on point, we believe the Kentucky Supreme Court's recent holding in A.H. v. W.R.L., supra, is controlling here.
Custodial issues; best interests of child shall determine; rebuttable presumption that joint custody and equally shared parenting time is in child's best interests; de facto custodian. --------
In A.H., Amy and Melissa, a same-sex couple, had a child via artificial insemination. A.H., 482 S.W.3d at 372-73. Prior to the insemination, the couple signed a document affirmatively recognizing Amy as the unborn child's other parent. Id. at 374. The couple lived together with the child for about five years before they separated. Id. at 373. Amy continued to spend time with the child after the couple separated. Id. A year after Amy and Melissa separated Amy married a new partner who filed a petition for step-parent adoption. Id. When the step-parent adoption petition was filed, Amy had already filed a custody petition which was then pending. Id. Amy filed a motion to intervene in the adoption proceedings, which the trial court granted. Id. The Court of Appeals reversed finding that Amy lacked standing to seek adoption. Id. The Kentucky Supreme Court held as a matter of first impression that Amy asserted a cognizable custodial interest, and therefore had a right to intervene under CR 24.01. Id. at 374-75.
The Supreme Court began its analysis in A.H. by stating definitively that the case was "not about standing," and that it was therefore "unnecessary to determine whether Amy [would] ultimately succeed in her custody petition." Id. at 373-74. It further explained that "standing and intervention are two distinct concepts, and that standing to seek adoption is not a condition for intervening in an adoption proceeding," and in resolving the issue it "need look no further than CR 24.01." Id. at 374. The Court found that Amy asserted a sufficient cognizable interest under subsection (b) of the statute, "i.e. maintaining a relational connection with the child, either through custody or visitation." Id. The court found that Amy's involvement with the child, as well as the documentation that evinced the parties' intent to raise the child together, were significant in establishing her legal interest for the purpose of intervening in the adoption proceeding. Id. Thus, it held that the trial court did not err in granting her motion to intervene. Id. at 375.
We acknowledge that A.H. dealt with an adoption proceeding and not a custody proceeding. However, because this case involves a motion to intervene under CR 24.01, we believe the same principles apply. In this case the circuit court committed clear error by only addressing whether the McGeorges had standing to seek custody, as standing to seek custody is immaterial to the issue of whether the McGeorges could intervene as a matter of right under CR 24.01. Instead, the circuit court should have addressed whether they met the requirements of CR 24.01(a) & (b); whether their motion was timely; whether they have a sufficient, cognizable interest relating to the subject of the action; whether their ability to protect that interest may be impaired or impeded; and whether none of the existing parties to the action could adequately represent their interests.
III. CONCLUSION
For the foregoing reasons, we find the circuit court clearly erred in focusing solely on whether the McGeorges have standing to seek custody of I.B., rather than whether they qualified to intervene by right under CR 24.01. Accordingly, we reverse and remand for a hearing consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: John Michael Gambrel
Pineville, Kentucky BRIEF FOR APPELLEE: Clyde Bishop Johnson
Pineville, Kentucky