Opinion
NO. 2016-CA-000216-ME
02-03-2017
TRACEY BRANHAM APPELLANT v. SHEILA J. DOCKERY APPELLEE
BRIEF FOR APPELLANT: Eric E. Ashley Louisville, Kentucky No brief filed for appellee.
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 13-CI-503467 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: Tracey Branham, the paternal grandmother of James Dockery and step-grandmother of Zachary Dockery, has appealed from the Jefferson Family Court's December 9, 2015, order designating the maternal grandmother, Sheila Dockery, as the children's de facto custodian and awarding custody to her, and from the January 14, 2016, order denying a motion to alter, amend, or vacate that order. Finding no error or abuse of discretion, we affirm.
Sheila's daughter is Edna Geneva Dockery (Geneva), who is the mother of two children: James, born on January 26, 2005, with Tracey's son, Michael Branham; and Zachary, born October 1, 2007, with an unknown and unidentified father. Both children were born out-of-wedlock. In November 2013, Sheila filed a petition with the family court seeking custody of her grandchildren, alleging that both children lived with her and had primarily lived with her since birth and that she had been the primary caregiver and had provided for the children's physical, emotional, educational, and financial needs. She also alleged that the children had been voluntarily placed with her and had lived with her continuously and exclusively for more than two years prior to the filing of the petition. Therefore, Sheila requested to be designated as the de facto custodian and that she be awarded custody of both children. She named Geneva and Michael as respondents in her petition and indicated that she had not participated in another litigation concerning custody of the children and did not know of any other person who had physical custody of the children or claimed to have custodial or visitation rights to the children.
At the time the petition was filed, Michael was incarcerated by the Department of Corrections and serving a thirteen-year sentence for robbery and assault. He would not be eligible for parole until late 2019. Michael appointed his mother, Tracey, as his power of attorney, and in that capacity she filed a response to Sheila's custody petition in December 2013. In the response, Tracey stated that the minor children had lived with both Sheila and Geneva for the past two years and that Geneva had been the primary caregiver and had provided for James' physical, emotional, educational, and financial support. Geneva had been paying rent to Sheila as well. Tracey requested visitation with James on a weekly basis and supervised visitation for Michael.
Geneva did not file her response until late July 2014, after the court filed a sua sponte order due to inactivity in the case since December. In her response, Geneva requested that Sheila be awarded custody of both children. In August 2014, Michael filed a pro se motion seeking joint custody of James and specifically requested that Tracey be granted joint custody along with him and Geneva while he was in prison so that she could have input as to how James was being raised. In the response, Michael indicated that he had not known about his son's existence until he had been served with a maintenance order in, presumably, a separate action. By separate motion, Michael requested, and was granted, the appointment of a guardian ad litem (GAL) to represent his interests. The court ordered Sheila to advance the GAL's $500.00 fee for her work on the case.
In April 2015, the court filed another sua sponte order due to inaction in the case. After none of the parties responded, the court dismissed the case on May 26, 2015. However, Sheila moved the court to set aside the dismissal shortly thereafter, explaining that she had not had the funds to pay the GAL until recently. The court set aside the dismissal in June 2015.
Sheila moved to redocket the case in October 2015, stating in her attached affidavit that Geneva was mentally handicapped, could not read or write, and was not capable of making any decisions. She said she and Geneva had custody of the two children and were waiting for the judge to make a ruling. However, Tracey had obtained guardianship, according to the affidavit, and she was a total stranger to them. The court set the matter for a hearing later that year.
In October 2015, Tracey moved to intervene in Sheila's action to seek custody of James. Tracey had been granted custody on September 3, 2015, pursuant to an order of the Jefferson Family Court in case number 15-CI-502567. In her petition for custody, which was never noticed for a hearing, Tracey stated that she had legal custody of James and was the legal guardian of Zachary pursuant to another action in Jefferson District Court. Tracey was seeking custody of James and argued that the child's parents were not suitable custodians, that Sheila had not provided any financial or emotional support for the child, that she (Tracey) was a fit and proper person, and that it was in the child's best interest for her to have custody.
At the beginning of the December 1, 2015, hearing, the court and the parties discussed the separate actions filed by Tracey, which were both junior to the present action and not served on Sheila. The court stated it would be continuing with the hearing. The court attempted to reach Michael at the prison facility, but the facility was locked down for a count and he was ultimately unable to participate in the hearing because he was at the dentist. Michael's GAL reported to the court that Michael preferred that custody of James be granted to Tracey and Geneva, whom he had married in June 2015. The court then moved forward with the hearing and heard testimony from Sheila, Tracey, and Geneva.
After testifying about her relationship to Geneva and the children, who were at that time eight and ten years old, Sheila testified that Geneva was mentally handicapped and had lived with her forever. She could not live on her own. The children had always lived with her from the times of their birth until July 2015. Geneva took James from Sheila in July and Zachary in September. In August 2011, Sheila stated that Geneva left the children with her to raise when she moved in with a boyfriend in Shelby County. Geneva signed a notarized document stating that she was leaving the children with Sheila and that Sheila had the right to put them in school and keep them safe. Geneva lived with the boyfriend for about six to eight months, after which she returned to live with Sheila. She noted that Zachary had special needs that needed to be addressed and that James had anger issues that were being treated. Geneva was unable to meet the children's needs financially and used her disability checks for herself and Michael. Michael had not been in the picture until one year before the hearing. Sheila also addressed the children's educational and medical needs. Geneva was unable to do so, and she was not able to drive. Sheila provided food, shelter, educational, medical, and all other needs of the children.
In her testimony, Tracey also explained her relationship to the children; James was her grandchild and Zachary was her step-grandchild. She disagreed that the children had always lived exclusively Sheila. Tracey said she had been involved with the children since Zachary was in diapers and that Geneva and the children had lived with a boyfriend for three or four years independently of Sheila. Geneva cared for the children during this time. James and Geneva had lived with Tracey since July and Zachary since September. Over the past two years, Tracey would see the children on weekends and during the week, and she would take James to sporting activities and medical and therapy appointments. She was also involved with James' education, meeting with counselors and the principal regarding his issues. His grades had improved during his time with Tracey. Tracey stated that Geneva had difficulty with reading, writing, and comprehension and that she could only read simple things. Tracey believed the current case reemerged when Zachary was removed from Sheila in September and Tracey requested a change in the payee status on Zachary's social security checks. Tracey believed Sheila had lapsed in several areas and that she (Tracey) was better able to provide for the children.
Geneva testified that she had been living with Tracey since July. She did not want Sheila to have custody of the children, but she was not able to give a reason for this. She thought it would be better for the children to live with her and Tracey. Geneva did not recall the custody document, but she admitted that her signature was on the page. She agreed that she and the children had lived with Sheila all of their lives, until July. At times, the children lived with Sheila when Geneva did not live there. When Geneva lived with her, Sheila did all of the chores for the family. Geneva did not work but stayed home all day.
Following the hearing, the court entered an order on December 9, 2015, ruling on the petition for custody. The court first found that Sheila had met the statutory requirements to be designated as both children's de facto custodian pursuant to Kentucky Revised Statutes (KRS) 403.270(1) and therefore appointed her as such. The court then considered custody pursuant to KRS 403.270(2) and made the following findings:
In this case it is clear that the mother of both children cannot now, nor will she ever be able to provide a home for her children. She is simply not able to care for them. Michael Branham, the father of James, has stated in his previously filed motions, that he was unaware of the child's existence until he received notice of the paternity action, while incarcerated. Mr. Branham has never lived with or cared for his son due to his incarceration. Mr. Branham has attempted to have his mother, Tracey Branham stand in his stead and gain custody of the child. This has occurred, but only within the last few months, following the marriage of the mother and Mr. Branham in June 2015 and the mother's move into Tracey's home. The mother and the father are both asking for the Court to grant custody to Tracey Branham. However, the Court notes that in the original petition in this case, the mother, Geneva, asked the Court, at that time, to give custody to her mother, Sheila Dockery. The Court acknowledges that Geneva loves her children and wants to be with them. However, the Court also acknowledges that she is not capable of providing for them. Mr. Branham is incarcerated and has no chance of release until, at the earliest, sometime in 2019. Tracey Branham is attempting to follow her son's wishes, but only one child is her biological grandchild. The Court further notes that paternity has never been established for Zachary and there is no known putative father.
Sheila Dockery, the maternal grandmother of both children, has cared for these children since birth. James is now 10 and Zachary is 8. She is the most only [sic]
stability they have experienced in their young lives. The next most consistent thing for the children is being together. The Court has given great thought to separating the children, with James being in the joint custody of Geneva and Tracey Branham and Zachery [sic] returning to Sheila Dockery. However, the Court is strongly against separating children who have spent their entire lives together and finds that is not in their best interest.Accordingly, the court granted custody of both children to Sheila and liberal visitation to Geneva. If Geneva continued to live with Tracey, visitation and overnights could occur in Tracey's home. Tracey was also permitted to provide transportation for visitation between Michael and James.
Michael, through his GAL, moved to alter, amend or vacate the order because he was not given the opportunity to participate in the hearing. The court denied the motion on January 14, 2016. This expedited appeal by Tracey now follows.
Before we reach the merits of the case, we note that Sheila did not file an appellee brief in this matter. It appears that her attorney attempted to file a brief on her behalf, but the brief was returned as late. This Court's records reflect that there was an issue with the correct address for Sheila's attorney, but it was identified prior to submission of this case and the late brief with the accompanying notice were re-mailed to her attorney of record. The Court has never received a motion seeking an enlargement of time to file an appellee brief.
Pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(8)(c), "[i]f the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." The decision whether to impose any of these penalties is within the discretion of this Court. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). Because this matter addresses child custody, we shall choose to address the merits of Tracey's case without penalizing Sheila for failing to file a brief.
On appeal, Tracey contends that the family court improperly ignored a prior custody order granted by a different division of Jefferson Family Court, erred in designating Sheila as the children's de facto custodian, and erred in proceeding without notifying Zachary's father.
For her first argument, Tracey asserts that any further consideration of custody was barred by the doctrine of res judicata because James' custody had already been decided in another family court action. We reject this argument because the present custody action was filed two years before the action Tracey filed, and is therefore senior, and because neither Sheila nor the family court in this matter were notified of its filing or of the entry of the custody order.
Next, Tracey argues that there was insufficient evidence to designate Sheila as a de facto custodian. Again, we disagree.
CR 52.01 provides the general framework for the family court as well as review in the Court of Appeals: "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An appellate court may set aside a lower court's findings made pursuant to CR 52.01 "only if those findings are clearly erroneous."). The Asente Court went on to address substantial evidence:
"[S]ubstantial 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." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted).
CR 52.01 also provides that a reviewing court must afford "due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses." It has long been held that "when the testimony is conflicting we may not substitute our decision for the judgment of the trial court." R.C.R. v. Com. Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998), citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967). See Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) ("When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974).").
A de facto custodian is statutorily defined in KRS 403.270 as follows:
(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.In Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 798 (Ky. App. 2001), this Court explained that in order to meet this status, a person is "required to show not only that [he or she] had been the primary caregiver for the child but also the primary financial supporter of the child in order to prove de facto custodian status."
(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.
In her brief, Tracey argues that the testimony concerning Sheila's de facto custodian status was conflicting and that Sheila never testified to a specific time frame during which she kept the children. At the hearing, Tracey testified that she had been involved in the children's lives for many years and that Geneva had raised the children with a boyfriend for several years, outside of Sheila's home. However, the record also reflects Sheila's testimony that she had raised both children for their whole lives and that the children, and Geneva for the most part, had lived with her until July 2015. There was testimony that Geneva left Sheila's home to live on her own or with a boyfriend for short periods, but she always returned to live with Sheila. The children remained with Sheila during these times. The record also includes a sworn statement from Geneva giving custody of the children to Sheila in August 2011, and the court noted that this had never been rescinded. Furthermore, there is no question that Geneva was incapable of raising the children, and Sheila provided for the children's needs without any support from Geneva.
Faced with this conflicting testimony, the family court carefully weighed the evidence and testimony and determined that Sheila met the definition of the children's de facto custodian. Based upon our review of the record, we find there was clear and convincing evidence to support the family court's findings and hold that there was no of abuse of discretion in designating her as the de facto custodian.
Finally, Tracey argues that Sheila failed to join Zachary's father as an indispensable party to her custody action. First, Tracey has failed to point to where in the record this issue was preserved for review pursuant to CR 76.12(4)(c)(v), and we are unable to find this argument in the lower court's record. Therefore, Tracey is precluded from raising this issue for the first time on appeal. As the Supreme Court of Kentucky stated in Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016),
We have long endorsed a rule that "specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal." When a trial court never has the opportunity to rule on a legal question presented to an appellate court, an appellant presents a different case to the appellate court than the one decided by the trial court. Indeed, an appellate court is "without authority to review issues not raised in or decided by the trial court." The proper role for an appellate court is to review for error—and there can be no error when the issue has not been presented to the trial court for decision. [Footnotes including citations omitted.]
Even if we were to consider the merits of Tracey's argument on this issue, we find no merit in it. Zachary's father is unknown and was never identified by any of the parties, including Geneva, making it impossible to serve him. The cases cited by Tracey are distinguishable. While the Supreme Court in West v. Goldstein, 830 S.W.2d 379, 382 (Ky. 1992) observed that indispensable parties are "those persons whose interest would be divested by an adverse judgment[,]" we note that West addresses the failure to add named beneficiaries to a will contest. And Goldfuss v. Goldfuss, 565 S.W.2d 441, 442-43 (Ky. 1978), is an appeal in an adoption action where the father was known, but was not named or brought before the court during the adoption proceedings, thereby invalidating the judgment of adoption.
Although Tracey has not raised this particular argument, we also hold that the family court did not abuse its discretion in awarding custody of the children to Sheila pursuant to the statutory factors set forth in KRS 403.270(2). "When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008), citing Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974).
For the foregoing reasons, the order of the Jefferson Family Court awarding custody of the children to their maternal grandmother as well as the order denying the motion to alter, amend or vacate are affirmed.
THOMPSON, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Eric E. Ashley
Louisville, Kentucky No brief filed for appellee.