Opinion
NO. 2016-CA-000624-ME
03-24-2017
THOMAS HAROLD MILLS APPELLANT v. BETTY L. GRUBB AND KAYLA GRUBB APPELLEES
BRIEFS FOR APPELLANT: Laura A. Phillips Barbourville, Kentucky BRIEF FOR APPELLEE BETTY GRUBB: David M. Mills Barbourville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 14-CI-00450 OPINION
REVERSING AND REMANDING
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BEFORE: JONES, NICKELL AND STUMBO, JUDGES. STUMBO, JUDGE: Thomas Mills appeals multiple orders of the Knox Circuit Court which declared Betty Grubb a de facto custodian of his minor child and granted her joint custody with equal parenting time. Mr. Mills argues on appeal that he is entitled to sole custody of the child, Betty does not meet the definition of a de facto custodian, the court ruled on the de facto custodian issue without a hearing, and the court failed to make written findings of fact regarding the custody issue. Betty claims that Mr. Mills' de facto custodian argument is untimely and, in the alternative, that she met the definition of de facto custodian. We are unable to rule on the ultimate issue of custody because we believe the court must first hold a hearing on Betty's status as a de facto custodian; therefore, we reverse and remand.
Mr. Mills is the biological father of the minor child at issue. Kayla Grubb is the biological mother of the child and Betty is the maternal grandmother. The child at issue was born out of wedlock on July 5, 2013. The child was born with drugs in his system; therefore, he was removed from Kayla's care by the Department of Community Based Services and placed with Betty. When the child was born, Mr. Mills was not listed on the birth certificate. This meant he could not seek custody of the child until his paternity had been established. Legal and procedural issues delayed this finding of paternity until October of 2014.
On December 15, 2014, Mr. Mills filed a petition for custody of the child. Betty filed a response to the petition in January of 2015 and she also requested custody of the child. Kayla did not and has continued to not participate in these custody proceedings. The court held a custody hearing on July 17, 2015. After the hearing, the court ruled from the bench that Betty was a de facto custodian and that the parties would share joint custody of the child. Mr. Mills' counsel objected to the de facto custodian ruling because the issue had not been previously raised or brought before the court. A written temporary order was entered on July 31, 2015, setting forth the joint custody and de facto custodian issues. The order, however, did not list any findings of fact or conclusions of law to explain the court's decision. The order also stated that the case would be set for review on September 25, 2015, in order for the parties to file any motions, objections, or exceptions to the court's ruling.
Multiple objections, motions, and memoranda were filed by the parties. On February 24, 2016, the court entered a final order which modified some custody and visitation terms from the previous temporary order and incorporated all other terms and conditions from the previous order. Mr. Mills then filed a motion to alter or set aside the order, but that was denied by the court. This appeal followed.
Mr. Mills' primary argument on appeal is that the court erred in making a de facto custodian determination without a hearing or notice to the parties and that Betty did not meet the definition of de facto custodian. Betty claims this argument is untimely because the appeal was not initiated until almost one year after the court first determined her to be a de facto custodian.
First, we believe this argument is timely. The July 31, 2015 order declaring Betty to be a de facto custodian was not a final order. See Francis v. Crounse Corp., 98 S.W.3d 62 (Ky. App. 2002). The order did not state it was final and appealable and the order stated that the custody issue would remain open in order for the parties to file any objections or motions regarding the matter. The de facto custodian and custody issues did not become final until the court's February 24, 2016 order. Mr. Mills then filed a motion to alter pursuant to Kentucky Rule of Civil Procedure (CR) 59.05, which tolls the running of time to file a notice of appeal. Parker v. Commonwealth, 440 S.W.3d 381, 384 (Ky. 2014). The CR 59.05 motion was denied by the trial court on April 15, 2016, and the notice of appeal was filed on April 25, 2016. This argument, and indeed the entire appeal, is timely.
As stated previously, we are unable to rule on the ultimate issue of custody because we believe the trial court must hold a hearing on the de facto custodian issue. Mr. Mills objected to the court ruling on the de facto custodian issue without it being brought before the court and requested multiple times that the court set aside its ruling. "The fundamental requirement of procedural due process is simply that all affected parties be given the opportunity to be heard at a meaningful time and in a meaningful manner." Hilltop Basic Res., Inc. v. Cty. of Boone, 180 S.W.3d 464, 469 (Ky. 2005) (internal quotation marks and citation omitted).
Kentucky Revised Statute (KRS) 403.270 sets forth the factors to consider when determining if a non-parent is a de facto custodian. KRS 403.270 states:
(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.
(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.
Typically, this issue is litigated early in child custody proceedings; however, such was not the case here. While a hearing was held on July 17, 2015, the parties were not on notice that the issue of Betty's standing as a de facto custodian would be considered. This was in error. We believe the trial court should hold a hearing to determine whether Betty is a de facto custodian and give each party a meaningful opportunity to be heard and argue its case; therefore, we reverse and remand.
On remand, once the de facto custodian issue has been determined, the court must also enter a new custody order that includes written findings of fact and conclusions of law. As mentioned above, the trial court in this case did not include any findings of fact or conclusions of law in its custody orders.
Kentucky Rule[s] of Civil Procedure (CR) 52.01 requires the family court to make highly specific findings because custody determinations are matters conducted without a jury. The Supreme Court has recently held that in custody matters, the findings must be in writing.
CR 52.01 requires that the judge engage in at least a good faith effort at fact-finding and that the found facts be included in a written order. Failure to do so allows an appellate court to remand the case for findings, even where the complaining party failed to bring the lack of specific findings to the trial court's attention.
Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). In a subsequent opinion, Justice Venters elaborated on the Court's reasoning.
We again state with emphasis that compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and admonish trial courts that it is their duty to comply with the directive of this Court to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions. Consideration of matters affecting the welfare and future of children are [sic] among the most important duties undertaken by the courts of this Commonwealth. In compliance with these duties, it is imperative that the trial courts make the requisite findings of fact and conclusions of law to support their orders.
Hicks v. Halsey, 402 S.W.3d 79, 84 (Ky. App. 2013).
Keifer v. Keifer, 354 S.W.3d 123, 125 - 26 (Ky. 2011). Thus, a rigid standard of reciting statutory standards - coupled with supporting facts - has now become a requirement.
Based on the foregoing, we reverse and remand for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Laura A. Phillips
Barbourville, Kentucky BRIEF FOR APPELLEE BETTY
GRUBB: David M. Mills
Barbourville, Kentucky