Opinion
NO. 2012-CA-000306-ME
10-26-2012
SARAH DENHOLM APPELLANT v. MATTHEW DENHOLM, EMILY DENHOLM, CAROL KIRBY, AND SUSAN RUFER APPELLEES
BRIEF FOR APPELLANT: Catherine Ann Monzingo Lexington, Kentucky BRIEF FOR APPELLEES SUSAN RUFER AND CAROL KIRBY: Jimmy Dale Williams Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEFFREY M. WALSON, JUDGE
ACTION NO. 11-CI-01606
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Sarah Denholm appeals from an order dismissing her petition for custody due to lack of standing. Multiple arguments are made on appeal, but because we find that Sarah Denholm was not permitted to testify or present evidence at the custody hearing regarding the standing issue, we reverse and remand for a new hearing on the matter.
H.D. is the biological child of Matthew and Emily Denholm. Sarah Denholm is H.D.'s stepmother. At the time this custody petition was heard, Sarah and Matthew were beginning the divorce process. Sarah and Matthew have another child together. Matthew has sole custody of H.D. pursuant to a divorce decree between Matthew and Emily. Emily has no visitation rights to H.D.
Because this case involves a minor child, we will only use her initials.
On September 21, 2011, Matthew placed H.D. in the custody and control of Carol Kirby, his great aunt, and Susan Rufer, his grandmother. A power of attorney form was executed pursuant to this act. Sarah filed this custody petition on November 3, 2011. On November 21, 2011, Matthew allegedly shot and killed a man. At the time of the custody hearing, Matthew was incarcerated and awaiting trial for this alleged crime. On November 22, 2011, Sarah filed a motion for emergency temporary custody. The same day, Ms. Kirby and Ms. Rufer filed a joint motion to intervene in the custody action due to their having actual physical custody of H.D.
On December 5, 2011, a hearing was held to determine whether Sarah had standing to pursue a custody action. Sarah alleged she had standing pursuant to Kentucky Revised Statute (KRS) 403.800(13) (defining a "person acting as a parent") and Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), in that she was a "person acting as a parent" and that Matthew had waived his superior right to custody. The only witness to testify at the hearing was Matthew. Sarah requested that she be allowed to testify and present evidence to prove Matthew waived his superior right to custody, thereby giving her standing to seek custody. The trial court did not allow Sarah to present evidence and awarded temporary custody to Ms. Kirby and Ms. Rufer.
On December 12, 2011, Sarah filed a motion for specific findings and to reconsider. A hearing was held on the motion. Through counsel, Sarah again requested that she be allowed to present evidence. The court again declined. On January 10, 2012, the trial court entered an order specifically finding that Sarah did not have standing to seek custody because Matthew did not waive his superior right to custody. This appeal followed.
Due process requires, at a minimum, that persons forced to settle their claims of right and duty through the judicial process be given a meaningful opportunity to be heard. It has been said that no hearing in the constitutional sense exists where a party does not know what evidence is considered and is not given an opportunity to test, explain or refute.Utility Regulatory Com'n v. Kentucky Water Service Co., Inc., 642 S.W.2d 591, 593 (Ky. App.1982) (citations omitted). Sarah was unable to present evidence regarding the main issue before the trial court: whether she had standing to seek custody of H.D. While the trial court may again find she does not have standing, Sarah must be given the opportunity to present evidence. We therefore reverse and remand for a new hearing in which Sarah be allowed to present evidence.
Sarah also appeals the decision of the trial court that gave Ms. Kirby and Ms. Rufer standing to intervene in this action. Sarah claims they do not have standing. If Sarah does not have standing in this case, then she cannot contest the standing of Ms. Kirby and Ms. Rufer. On remand, should the trial court find that Sarah has standing, then it must also determine if Ms. Kirby and Ms. Rufer have standing. The trial court should consider whether Ms. Kirby and Ms. Rufer have standing pursuant to KRS 403.800(13); Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010); KRS 403.270 (the de facto custodian statute), or some other means.
Based on the foregoing we reverse and remand for a new custody hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Catherine Ann Monzingo
Lexington, Kentucky
BRIEF FOR APPELLEES SUSAN
RUFER AND CAROL KIRBY:
Jimmy Dale Williams
Richmond, Kentucky