Opinion
NO. 2018-CA-001674-ME
07-19-2019
LEAH NICOLE GOODWIN APPELLANT v. CAITLYN MANON CURNUTT AND THOMAS LEE PERRY APPELLEES
BRIEFS FOR APPELLANT: Matthew D. Dusing Covington, Kentucky BRIEF FOR APPELLEE: Randy J. Blankenship Erlanger, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 18-CI-00620 OPINION
REVERSING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND NICKELL, JUDGES. MAZE, JUDGE: Leah Nicole Goodwin ("Nicole") appeals the order of the Boone Circuit Court denying her petition to be declared the de facto custodian of her niece, S.A.P. For reasons stated below, we reverse.
S.A.P. was born in May 2012. Caitlyn Manon Curnutt ("Caitlyn") and Thomas Lee Perry ("Thomas") are the child's biological parents. Nicole is Caitlyn's half-sister. Caitlyn and Thomas resided together in Texas when S.A.P. was born, but Caitlyn left the home when the child was nine months old. Until April 2017, S.A.P. resided exclusively with Thomas, save for a one-month visit with Nicole in June 2016. Caitlyn would only occasionally visit the child. In March 2017, Nicole proposed that S.A.P. spend a few months with her and Caitlyn in Nicole's home in Florence, Kentucky. Thomas agreed, believing such a visit would help S.A.P. establish a closer relationship with Caitlyn.
Although the parties initially intended S.A.P.'s visit to last from April 22, 2017, to the end of June 2017, the child remained in Nicole's home without any dissent from Thomas until May 2018. Around this time, Nicole informed Thomas that neither she nor Caitlyn would be returning S.A.P. to his custody. On May 4, 2017, Nicole filed a petition to be declared S.A.P.'s de facto custodian, alleging S.A.P. had been residing solely with her from April 22, 2017, to May 4, 2018. Thomas then filed a motion for temporary custody, claiming he had not been aware S.A.P. had been residing solely with Nicole. At this hearing, Thomas inquired to the extent of Caitlyn's parental care. Nicole testified that she provided almost all of the child's care, but conceded Caitlyn enrolled S.A.P. in school and chose her primary care physician because only a parent could do so at that time. Following the hearing, the court granted Thomas temporary custody and ordered S.A.P. be returned to his care.
The trial court held an evidentiary hearing on Nicole's petition for de facto custodianship one month later. Nicole testified that Caitlyn lived with her for one week in April 2017 and for another week in August 2017 following S.A.P.'s enrollment in school. At all other times, Caitlyn resided with her boyfriend but would visit Nicole's home approximately once a month. Nicole alleged she was S.A.P.'s sole financial provider while Caitlyn took a "hands off" approach to S.A.P. Nicole explained that when Caitlyn visited, Caitlyn would usually remain in her room while Nicole cared for S.A.P. On cross-examination, Nicole described the relationship as Caitlyn being "five to 10 percent" involved with S.A.P.'s care, and "zero percent financially." Nicole also called several witnesses who knew Caitlyn who testified that they had never seen Caitlyn participating in S.A.P.'s care. One of these witnesses, Toni Denato, routinely babysat S.A.P. for Nicole. Denato testified that Caitlyn picked S.A.P. up from babysitting on three occasions in August 2017 in order to take the child to doctor appointments. Denato testified she did not observe Caitlyn provide any other parental care for S.A.P., despite visiting Nicole at her house approximately five days a week.
Thomas testified that he was at all times under the impression that Caitlyn was residing with Nicole and that Caitlyn was providing all of S.A.P.'s parental care and support. Thomas alleged that several photographs Nicole posted on social media fostered this impression. These included photos depicting Caitlyn taking S.A.P. to get her ears pierced, Caitlyn getting S.A.P. ready for her first day of school, and S.A.P. visiting her new half sibling and Caitlyn in the hospital. Thomas also testified he frequently exchanged text messages with Caitlyn and Nicole and neither informed him that Caitlyn no longer resided with Nicole and was not involved in S.A.P.'s life. Thomas admitted he did not provide any financial support for S.A.P. from April 22, 2017, to May 4, 2018. However, he claimed that if he had any indication Caitlyn could not meet S.A.P.'s financial needs, or was not providing all of the parental care, he would have traveled to Kentucky to regain custody. Caitlyn did not appear at the hearing.
The trial court ultimately denied Nicole's petition to be declared de facto custodian. In its written findings of fact and conclusions of law, the trial court found that Caitlyn lived with Nicole for "a few weeks" in April 2017 and for "several weeks" in August 2017, during which Caitlyn participated in the care of S.A.P. The trial court concluded that when this time was accounted for, Nicole could not prove she was S.A.P.'s primary caregiver for the one-year period required for de facto custodianship under KRS 403.270. Although irrelevant to a de facto custodian determination, the trial court also found that Nicole misled Thomas into believing Caitlyn was actively involved in S.A.P.'s life. This appeal follows.
Kentucky Revised Statutes.
In addition to challenging the trial court's finding that she was not S.A.P.'s de facto custodian, Nicole argues Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) is unconstitutional. This argument was not raised before the trial court and is not preserved for appellate review. See Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
"When reviewing a decision in a child custody case, the test is whether the findings of fact of the trial court were clearly erroneous or the decision constitutes an abuse of discretion." Burton v. Burton, 355 S.W.3d 489, 493 (Ky. App. 2011). Findings of fact are not clearly erroneous when supported by substantial evidence, that is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
A de facto custodian is
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.
KRS 403.270(1)(a). "It has been held that parenting the child alongside the natural parent does not meet the de facto custodian standard in KRS 403.270(1)(a)." Mullins v. Picklesimer, 317 S.W.3d 569, 574 (Ky. 2010). However, "the statute requires a person seeking to be named a de facto custodian to prove he is the child's primary caregiver and primary financial supporter—not that he is the child's sole, only or exclusive provider[.]" Ball v. Tatum, 373 S.W.3d 458, 463 (Ky. App. 2012) (emphasis in original).
Nicole argues the trial court's finding that she was not S.A.P.'s primary caregiver for several weeks in April 2017 and multiple weeks in August 2017 was clearly erroneous. We agree. Nicole testified that Caitlyn resided full time in her home for two weeks, one week in April 2017 and one week in August 2017. This testimony was uncontroverted. It was also undisputed that Nicole provided all of the financial support for S.A.P. Accordingly, the trial court's order can stand only if there was other evidence sufficient to support its finding that Nicole had not proven through clear and convincing evidence she was S.A.P.'s primary caregiver.
There was evidence Caitlyn participated in five to ten percent of S.A.P.'s care, took her to a doctor's appointment on three occasions, took S.A.P. to get her ears pierced, and was photographed with S.A.P. in some pictures posted on social media. Nicole also testified at the temporary removal hearing that Caitlyn enrolled the child in school and chose her primary care physician. Thomas has not cited, and we have not found, any cases in which such minimal participation in a child's life by a parent precluded a finding of de facto custodianship. In Ball, the grandparents permitted the mother and child to reside in their home rent free, provided 95% of the child's financial support, and took the child to 95% of her physical therapy appointments. 373 S.W.3d at 464. In affirming the trial court's finding that the adoptive parents were de facto custodians, we held that these facts clearly and convincingly established the adoptive parents were the child's de facto custodians. Id. The uncontroverted facts in this case show Nicole provided an even greater portion of the parental care than the grandparents in Ball. Thus, we are compelled to hold that the trial court clearly erred when it found Nicole failed to show through clear and convincing evidence that she was S.A.P.'s de facto custodian.
Thomas also argues the trial court's finding that Nicole intentionally misled him about Caitlyn's lack of participation in S.A.P.'s life should prevent her being declared a de facto custodian under the doctrine of unclean hands. This argument was not raised before the trial court and is not preserved for appellate review. Tackett, 770 S.W.2d at 228. Regardless, a different panel of this Court has previously explained that "the statute [KRS 403.270(1)] does not provide any exceptions to prevent someone from qualifying as a de facto custodian because one of the biological parents did not know the other biological parent with primary residential custody was abdicating caregiving and financial responsibilities to someone else." Berry v. Harrison, 2017-CA-000818-ME, 2018 WL 2277493, at *7 (Ky. App. May 18, 2018). Whether Nicole misled Thomas about Caitlyn's involvement in S.A.P.'s care is not relevant to Nicole's standing as a de facto custodian. It is an issue to be considered when deciding custody or visitation arrangements and specifically listed under KRS 403.270(2)(j) as a factor the trial court must consider when determining the best interest of the child.
We cite to this unpublished case as persuasive authority that meets the requirements of CR 76.28(4)(c) for citation.
Accordingly, the Boone Circuit Court's order denying Nicole's petition to be declared a de facto custodian is reversed.
ALL CONCUR. BRIEFS FOR APPELLANT: Matthew D. Dusing
Covington, Kentucky BRIEF FOR APPELLEE: Randy J. Blankenship
Erlanger, Kentucky