Opinion
NO. 2017-CA-001808-ME
06-08-2018
PHILLIP WAYNE VITTITOW APPELLANT v. JABREA HUTCHINS; DUSTIN CLIFFORD HALL; SHADONNA EMBRY AND MATTHEW EMBRY APPELLEES
BRIEF FOR APPELLANT: Amanda Rogers Deaton Bardstown, Kentucky NO APPELLEE BRIEF FILED
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 17-CI-00207 OPINION
AFFIRMING
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BEFORE: JOHNSON, SMALLWOOD, AND THOMPSON, JUDGES. THOMPSON, JUDGE: Phillip Wayne Vittitow appeals the Nelson Circuit Court's order denying his motion for custody and reasonable timesharing of L.L.H. (child) due to lack of standing. Vittitow also appeals the orders denying his motion to alter, amend or vacate and his subsequent motion to reconsider.
Vittitow argues he had standing under Kentucky Revised Statutes (KRS) 403.822 as a "person acting as a parent" for child for six months of the twelve months before his action was filed. We affirm because Vittitow could not establish he was a person acting as a parent based on the record presented on appeal.
Child was born in August 2016 to Dustin Hall and Jabrea Hutchins. Hall's mother, Donna Johnson, has been in an intermittent romantic relationship with Vittitow for over twenty years. Although the two never married, they have three children together and Hall is the half-brother of those children. Vittitow also raised Hall as his son but does not have a legal connection to him.
When he was born, the child tested positive for marijuana and methamphetamine. Child was sent home with Johnson because a social worker would not allow Hall and Hutchins to leave the hospital with him. On August 26, 2016, Vittitow began serving as child's primary caregiver along with Johnson and served as child's primary financial provider. He continued to do so until February 8, 2017, when child was removed from his parents following a dependency, neglect, and abuse action. Child was ultimately placed in the custody of Hutchins's aunt and uncle, Shadonna and Matthew Embry. Vittitow continued to have some visitation with child after this placement.
On April 13, 2017, Vittitow petitioned for custody of child in an action against Hutchins, Hall and the Embrys (collectively the appellees). An evidentiary hearing was conducted on Vittitow's motion for custody and reasonable timesharing. The trial court denied the motion, finding Vittitow did not qualify as a de facto custodian under KRS 403.270(1)(a), because he was child's primary caregiver and primary financial supporter for only five and one-half months. The trial court noted the Cabinet for Health and Family Services did not recommend child be placed in Vittitow's custody due to his history of marijuana convictions and spousal abuse. The trial court further stated that although it "sincerely wishes that it could provide [Vittitow] with visitation herein . . . this Court is unaware of any statute or decision rendered by an appellate court of this state that would provide a step-grandfather with visitation."
Vittitow then moved to alter, amend, or vacate this order. Although conceding he did not qualify as a de facto custodian, Vittitow argued he had standing under KRS 403.822 to seek custody and visitation as a "person acting as a parent" where child's parents had expressly waived their superior right to custody by allowing him to serve as child's primary caregiver and, even after child was placed with relatives by the Cabinet, he had child every week from Thursday until Sunday until the beginning of July 2017, and that on at least one occasion he had the child for more than ten days while the Embrys vacationed.
The trial court denied the motion, finding Vittitow was unable to meet the definition of a person acting as a parent because he did not perform all of the traditional parental responsibilities for child after his placement with the Embrys. The trial court found that the time child spent with Vittitow was not equal to the time child spent with the Embrys. It recounted that Vittitow testified there were several weeks when child would spend two days with him and two days with Johnson. The trial court also expressed concerns about Vittitow's suitability to have custody of child.
We do not address issues regarding the suitability of custody or visitation by Vittitow because the trial court based its ruling upon Vittitow's lack of standing. We note that if standing were to be satisfied, because Vittitow is not a de facto custodian, to obtain custody he would still have to prove "either: (1) the parents are shown by clear and convincing evidence to be unfit custodians; or (2) the parents have waived their superior right to custody by clear and convincing evidence." Chadwick v. Flora, 488 S.W.3d 640, 646 (Ky.App. 2016). After such a showing is made, a court will then determine custody based on a child's best interest. Moore v. Asente, 110 S.W.3d 336, 360 (Ky. 2003).
Vittitow filed a motion to reconsider. He attached an affidavit in which he stated the following as relevant to whether he was a person acting as a parent:
I was the sole financial provider from August until February, and the primary financial provider thereafter until June 2017, when the Embrys stopped allowing me visits. I bought his diapers, milk, food, clothes, car seats, a swing, walkers, and all his baby equipment. I even provided the Embrys with baby supplies. I have established a college fund for the benefit child to which I am contributing $140.00 monthly. I handled medical issues, provided caregiving, nurturing and acted in every way a parent would. While I did allow [Johnson] (the child's paternal grandmother) to see him on occasion, I did not share regular time with her.The trial court interpreted Vittitow's motion to reconsider as a Kentucky Rules of Civil Procedure (CR) 60.02(f) motion and denied it. This appeal followed.
Vittitow concedes he was child's primary caregiver and financial provider for only five and one-half months but argues he continued performing traditional parenting responsibilities for child on an equal basis with the Embrys after the child was removed from his parents, thus qualifying as having physical custody of child and having standing to pursue custody. Vittitow argues the trial court's findings were contrary to his undisputed testimony that from the time the Embrys obtained custody until the beginning of July 2017, Vittitow had child every week from Thursday until Sunday and on at least one occasion had child for more than ten days while they vacationed. He argues the trial court erred when it found he lacked standing to seek custody or visitation where he had sole physical custody of child from August 2016 until February 8, 2017, and shared equal time with the Embrys from February 8, 2017 until July 2017. Therefore, he contends he acted as a parent to child for eight of the twelve months preceding his filing.
We note that both Vittitow and the appellees failed to comply with CR 76.12. Vittitow's brief is deficient under CR 76.12(4)(c)(iv) and (v) because it fails to cite to the evidentiary hearing to support his allegations as to what the testimony was presented at the hearing. Appellees failed to file an appellate brief as required by CR 76.12(1). While CR 76.12(8) permits this Court to impose sanctions for such failures, in our discretion we decline to do so. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.App. 2007). --------
Appellate courts must defer to the factual findings of the trial court if the findings are not clearly erroneous and are supported by substantial evidence. Spreacker v. Vaughn, 397 S.W.3d 419, 421 (Ky.App. 2012). "Substantial evidence is evidence 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) (internal quotations and footnotes omitted). The appellate court should defer to the trial court's determination of witness credibility and the weight of evidence, even when the evidence is conflicting or a reviewing court would have reached a contrary finding. Chadwick v. Flora, 488 S.W.3d 640, 643-44 (Ky.App. 2016). However, we review de novo the trial court's application of the law to the facts. Id. at 644.
In Kentucky, someone who does not qualify as a de facto custodian of a child has standing to seek custody and visitation if they are a "person acting as a parent[.]" KRS 403.822(1)(a)-(b). A person acting as a parent is someone, other than a parent, who "[h]as physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding" and "[h]as been awarded legal custody by a court or claims a right to legal custody under the law of this state[.]" KRS 403.800(13)(a)-(b). Physical custody means "the physical care and supervision of a child[.]" KRS 403.800(14). Unlike de facto custodianship, physical custody under this statute "does not require exclusive care and exclusive supervision." Mullins v. Picklesimer, 317 S.W.3d 569, 575 (Ky. 2010). "Thus a person . . . who for the requisite period of time performed all the traditional parenting responsibilities alongside another person, . . . on an equal time sharing basis, had 'physical custody' under the provisions of KRS 403.800 et. seq." and has standing. Id.
Unfortunately, we cannot independently examine whether Vittitow's account of the evidence regarding whether he had equal timesharing after child was placed with the Embrys because the record on appeal does not contain the video recording of the evidentiary hearing. It is the appellant's responsibility to present a complete record before the appellate court. CR 75.01(1); Ray v. Ashland Oil, Inc., 389 S.W.3d 140, 145 (Ky.App. 2012). "Matters not disclosed by the record cannot be considered on appeal." Montgomery v. Koch, 251 S.W.2d 235, 237 (Ky. 1952). "It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Vittitow should have been aware of his responsibility from CR 75.01(1), the caselaw and our December 17, 2017 order expediting the appeal in this matter. In that order, we stated that "[t]he appellant must file a designation of evidence, pursuant to CR 75.01, on or before 10 days from the date of entry of this order. To facilitate the timely and complete preparation of the record, appellant shall provide the Clerk of the Circuit Court with a list setting out the dates for all proceedings necessary for inclusion in the record on appeal." The circuit court clerk was directed to certify the record thirty days from this order and notify the parties.
Vittitow failed to file a designation of evidence. The Nelson County Clerk's certification of record on appeal occurred on December 27, 2017. It listed 130 pages in the record and one envelope of exhibits. The clerk did not mark "yes" or "no" in the boxes designating whether there was a video record or cd/dvd recordings. Copies of this certification were sent to the parties.
Vittitow did not take any action after he received the clerk's certification to either request supplementation of the record or to clarify whether the video of the evidentiary hearing was included in the record on appeal.
We are dependent on the trial court's orders for its interpretation of what the testimony was at the evidentiary hearing. Therefore, we must assume that the trial court's orders accurately summarize the testimony as to timesharing after child was placed with the Embrys. We defer to the trial court's finding that after child was placed with the Embrys, Vittitow's interactions with child only amounted to "some visitation" that never exceeded child staying with Vittitow for two consecutive days per week. There is no basis in Kentucky law to hold such limited contact with a child is sufficient to establish standing. Compare with Picklesimer, 317 S.W.3d at 576-77, and Chadwick, 488 S.W.3d at 642-44.
For the foregoing reasons, the orders of the Nelson Circuit Court denying Vittitow's motion for custody and reasonable timesharing for lack of standing are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Amanda Rogers Deaton
Bardstown, Kentucky NO APPELLEE BRIEF FILED