Opinion
NO. 2012-CA-001670-ME
06-28-2013
JEANETTE LYNN CASS APPELLANT v. COLLIN CASS APPELLEE
BRIEF FOR APPELLANT: Douglas G. Benge London, Kentucky BRIEF FOR APPELLEE: Jill Osborne Edwards London, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE DURENDA LUNDY LAWSON, JUDGE
ACTION NO. 06-CI-00124 & 11-CI-01106
OPINION
AFFIRMING
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Jeanette Cass appeals the orders of the Laurel Circuit Court granting Collin Cass's motion to modify custody of the parties' minor child and Collin's petition for custody of a child born to Jeanette prior to the parties' marriage. After a thorough review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Collin and Jeanette were divorced in 2006. One daughter, hereinafter referred to as "Child," was born to the marriage. Jeanette has another daughter, hereinafter referred to as "Step Child," whom Collin testified that he had raised since she was six weeks old although she was not his biological child. Paternity has never been established regarding the identity of Step Child's biological father, and Step Child had never known her biological father. In the parties' divorce decree, Jeanette and Collin received joint custody of Child, with Jeanette being designated as primary residential custodian. The parties' separation agreement encouraged visitation between Step Child and Collin "whenever possible." Collin indicated that since the parties' divorce, he has exercised liberal visitation and has never exercised visitation with Child without Step Child also being present.
Collin was granted temporary custody of both children on September 20, 2011, as the result of an EPO and neglect petition against Jeanette alleging that she was intoxicated while the children were in her care despite being under court order to refrain from consuming alcohol in the presence of the children. Jeanette stipulated to the statements alleged in the neglect petition, and the charges were dropped in exchange for her compliance with the Cabinet's case plan.
On October 26, 2011, Collin filed a motion seeking sole custody of Child and petitioned for custody of Step Child. Both children were in Collin's custody at that time, and the parties later agreed that Collin would continue to have temporary custody due to the pending allegations of neglect against Jeanette.
Jeanette's counsel concedes that Jeanette pled guilty to the corresponding alcohol intoxication charge. It appears that Jeanette has had a history of alcohol related issues. It is unclear to what degree the children were exposed to Jeanette is being intoxicated prior to the above enumerated incidents.
The family court scheduled a hearing on both the motion for modification of custody and petition for custody to be heard on April 24, 2012. Witness and exhibit lists were to be filed fourteen days before the hearing. Collin timely complied with the pre-trial order, but Jeanette failed to do so. On April 12, 2012, counsel entered an appearance on behalf of Jeanette and filed a motion to continue the hearing. This motion was heard on April 24, 2012, and Jeanette was present. The family court granted the motion to continue, and the hearing was rescheduled for August 21, 2012. However, the court did not grant an extension on filing witness and exhibit lists.
The hearing commenced as scheduled on August 21, 2012. However, Jeanette failed to appear, despite having been present at the hearing during which the court granted her request for a continuance. Her counsel moved for a continuance due to her inexplicable absence. The family court denied the continuance because it was unaware of the reason for her absence and proceeded with the hearing. Nonetheless, her counsel participated in the hearing, presented arguments on her behalf, cross-examined witnesses and preserved issues for review on her behalf.
At the hearing, the family court took judicial notice of the neglect action and Jeanette's plea of guilty to the associated charge of alcohol intoxication. Jeanette had previously stipulated to the facts alleged in the neglect petition.
Collin testified that since the parties' divorce, he has provided financial support for both Child and Step Child and that Jeanette had not paid for any of the children's expenses. He also indicated that he had always maintained health insurance on both of the children, exercised weekly visitation, and cared for the children when Jeanette was arrested for alcohol related violations.
Since Collin obtained temporary custody on September 20, 2011, Jeanette has exercised telephonic visitation only sporadically. Collin explained that on one occasion, Jeanette attempted to arrange a meeting via facebook with one of the children during a field trip despite only being permitted to have supervised visitation. He explained that he ultimately cancelled his internet service because the children became upset when Jeanette would not answer them when they attempted to communicate with her on facebook. Collin also testified that the girls began having some behavioral issues when visitation with Jeanette was increased from five to seven hours per week. Collin referred to an instance where Jeanette left the children with "a drunken person." He further alleged that Jeanette had recently driven the children to his home while under the influence, even though she was under the supervision of a court-designated worker.
The ongoing case worker corroborated that the latter instance regarding Jeanette's driving with the children while intoxicated had been reported and was under investigation at that time. The caseworker also indicated that she had been unable to verify that Jeanette had an established residence despite the caseworker's having visited the address provided by Jeanette on numerous occasions over the past two months. The caseworker concluded that Jeanette "has not maintained a stable home." Jeanette did, however, complete a portion of the case plan, including drug screens, parenting classes, and a treatment assessment plan. However, Jeanette did not seek additional treatment as was required in order for her to complete her case plan.
Step Child's school principal reported that when Step Child enrolled this past school year, she had a few academic deficits and lacked confidence, but reported that Step Child had made wonderful progress. The principal testified that she met with Step Child for counseling at the request of the court to discuss issues occurring within the family.
Child's school counselor also testified and indicated that Child had been sheltered from "a lot of things" by Step Child and that Child has continued safety concerns and worries about her mother's drinking.
Collin explained that his reason for not seeking a modification of custody of Child and custody of the Step Child previously was because he was afraid that he would be unable to get custody of Step Child. Nonetheless, he thought it was necessary to do so after it became evident the children were endangered by Jeanette's alcohol use and that Jeanette was "never going to stop." He further indicated that he believed that it was necessary for the court to grant him custody for the children to have "any future whatsoever."
The family court granted Collin's motion to modify custody of Child, granting him sole custody. It also granted his petition for custody of Step Child, finding that he had standing as a "person acting as a parent" as defined in KRS 403.800. The court made a finding that Jeanette was an unfit parent and ordered her to pay child support on both children. Jeanette filed a timely notice of appeal.
Kentucky Revised Statute.
II. ANALYSIS
We first address Jeanette's assertion that Collin lacks standing to seek custody of Step Child. The family court determined that Collin had standing to seek custody of Step Child as a "person acting as a parent" pursuant to KRS 403.800(13); Mullins v. Picklesimer, 317 S.W.3d 569, 574-75 (Ky. 2010). A "person acting as a parent" is defined as
a person, other than a parent, who:
(a) Has 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
(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state[.]
Collin meets these requirements. He was granted temporary custody of Step Child in September 2011, and she, along with Child have remained in Collin's custody until the August 2012 hearing. Consequently, the family court did not err when finding that Collin had standing to maintain a custody action as a "person acting as a parent."
Regarding Jeanette's argument that it was error for the court to deny her motion for a continuance, our standard of review is whether the trial court abused its discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). A court has broad discretion in controlling the disposition of the cases on its docket and in determining whether to grant a continuance. Rehm v. Clayton, 132 S.W.3d 864, 869 (Ky. 2004). This, however, involves a "weigh[ing of] competing interests and maintain[ing] an even balance." Id. A court should consider several factors when deciding whether to grant a continuance:
1) The length of delay;Anderson v. Commonwealth, 63 S.W.3d 135, 138 (Ky. 2001).
2) Whether there have been any previous continuances;
3) The inconvenience to the litigants, witnesses, counsel, and the court;
4) Whether the delay is purposeful or caused by the [movant];
5) The availability of competent counsel, if at issue;
6) The complexity of the case; and
7) Whether denying the continuance would lead to any identifiable prejudice.
Weighing these factors, we conclude that the trial court did not abuse it discretion in denying a continuance. Granting a continuance would have caused inconvenience to Collin, and to the court, which were prepared to proceed on the day of trial, as was Jeanette's attorney. The court had previously granted her a continuance of the trial date. Jeanette had actual notice of the trial date and discovery deadlines, yet she chose not to make the appropriate disclosures or appear at trial. Jeanette's counsel represented her interests at the trial, cross examined witnesses and argued the case on her behalf, and there is no indication that Jeanette's counsel was incompetent. Moreover, the children herein were entitled to know the outcome of the custody dispute in a timely fashion. Jeanette was the person who put the children in an unstable environment, and they should not have to continue to endure the consequences of Jeanette's inability to timely resolve the custody matter. In short, the situation of which Jeanette complains was one of her own making. Consequently under the facts of this case, the trial court did not abuse its discretion in refusing to grant a continuance.
Jeanette next argues that the family court erred in finding her unfit. The Kentucky Supreme Court has set forth the type of evidence which would support a finding of unfitness as follows: (1) evidence of inflicting or allowing to be inflicted physical injury, emotional harm, or sexual abuse; (2) moral delinquency; (3) abandonment; 4) emotional or mental illness; and (5) failure, for reasons other than poverty alone, to provide essential care for the children. Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989). This list is not exclusive but is a guideline for making unfitness determinations.
Regarding its finding of Jeanette's unfitness, the family court found that:
the evidence presented clearly and convincingly establishes the mother to be unfit to have the custody and control of the minor child. Specifically, the mother's history of alcohol abuse which is evidenced by a history of alcohol related arrests over the past few years. The latest arrest of which directly impacted the safety of the minor child and a sibling. Respondent in a companion case before this court stipulated to her neglect of the minor child. There is no indication that Respondent has availed herself of any treatment for her substance abuse problem. Respondent does not have a stable home. Respondent has failed to provide essential care, including but not limited to financial support, for the child over the last eleven months.
Based on the findings by the family court, we agree that the standard for unfitness on the part of Jeanette has been established by clear and convincing evidence.
Jeanette also contends that the family court's method for calculating child support was erroneous. We review child support determinations under an abuse of discretion standard, i.e., whether the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008).
Specifically, Jeanette asserts that her child support should have been a single calculation instead of making a separate calculation for each child and that Collin's income should have been used when calculating child support for Step Child. Jeanette fails to cite any authority to support her argument. The statute governing the calculation of child support does not contemplate the use of a nonparent's income when determining a parent's child support obligation. See KRS 403.211 et. seq. Accordingly, Jeanette's contention is without merit.
Lastly, Jeanette contends that the family court's reduction of her supervised visitation was unreasonable. Absent a showing that "visitation would endanger seriously the child's physical, mental, moral, or emotional health," a noncustodial parent must be afforded "reasonable visitation." KRS 403.320(1). "[V]isitation rights are held to be peculiarly with the discretion of the [family] court." Drury v. Drury, 32 S.W.3d 521, 526 (Ky. App. 2000). We are mindful that the family court is in the better position to assess the credibility of the witnesses and the needs of the children. See CR 52.01. The testimony elicited at the hearing clearly demonstrated that the current visitation schedule was creating issues for the children. Accordingly, we cannot conclude that the family court's reduction of Jeanette's visitation was unreasonable or an abuse of discretion under the circumstances.
Kentucky Rule of Civil Procedure.
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For the aforementioned reasons, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Douglas G. Benge
London, Kentucky
BRIEF FOR APPELLEE: Jill Osborne Edwards
London, Kentucky