Opinion
NO. 2019-CA-000817-ME NO. 2019-CA-000820-ME
06-19-2020
MATTHEW POPP APPELLANT/CROSS-APPELLEE v. KYNEA JOHNSON APPELLEE/CROSS-APPELLANT
BRIEFS FOR APPELLANT/CROSS-APPELLEE: John P. Schrader Lexington, Kentucky BRIEFS FOR APPELLEE/CROSS-APPELLANT: Tammy C. Skeens Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 17-CI-00115 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES. ACREE, JUDGE: By separate appeals, Matthew Popp and Kynea Johnson seek review of multiple orders of Knott Family Court. After considering the arguments and citations to the record, we find no error and affirm.
FACTS AND PROCEDURE
Johnson and Popp are the parents of Keeno Nox Johnson Popp. Johnson became pregnant with Popp's child in 2016. Popp was then residing in Scott County; Johnson was residing in Fayette County. They made plans to marry, but the wedding never happened. In the following months, their relationship deteriorated. In 2017, Johnson, along with her family, moved to Knott County.
Johnson gave birth to Keeno on June 5, 2017. The following day, she electronically filed a petition for custody in Knott Family Court, seeking sole custody of Keeno. The petition contained Johnson's electronic signature, and was notarized by her former attorney, Timothy Parker. Parker's notary jurat verified Johnson signed the petition on June 6, 2017. However, Johnson testified in deposition she did not see Parker while in the hospital, from June 5 through June 7. She did, however, acknowledge signing a petition before being admitted to the hospital, on June 5, and after she was discharged.
Popp apparently learned of Keeno's birth on June 7, 2017. On June 8, 2017, he filed a petition in Scott Family Court to determine paternity, custody, and child support. He also filed a special entry of appearance in Knott Family Court, moving to dismiss Johnson's petition or, in the alternative, to transfer the case to Scott Family Court. In his petition, Popp asserted Knott Family Court was an improper venue and that Johnson's petition for custody did not meet the requirements of KRS 403.838(1).
Kentucky Revised Statutes.
Johnson responded and filed an amended petition. It does not appear Johnson moved for leave to file the amended petition and we are not directed to one. But, on October 10, 2017, Johnson filed a motion for leave to file a second amended complaint, presumably to correct any deficiencies in her initial petition.
A hearing on Popp's motion to dismiss and transfer of venue was held on June 12, 2017. Popp made the additional argument that Johnson's petition failed to meet the requirements of eFiling Rule 11(4), which requires a handwritten signature on all documents required to be notarized, acknowledged, verified, or made under oath. And, because her initial petition contained only an electronic signature, he argued, it should be stricken from the record and the case dismissed.
Renumbered section 11, and amended, by Supreme Court of Kentucky Order 2018-11, eff. 8-1-18; formerly section 10, amended by Order 2015-02, eff. 1-15-15; adopted by Order 2014-09, eff. 5-1-14. KY ST ADMIN E-FILING AP E-Filing, Sec. 11.
Knott Family Court did not rule on the motion to dismiss at that time. However, the court notified the parties it would contact Scott Family Court to resolve the venue dispute. Pursuant to FCRPP 2(2), the family court judges conferred over the telephone and concluded Knott Family Court was the appropriate venue. Scott Family Court issued an order dismissing Popp's petition. This Court dismissed the appeal of that order as interlocutory.
Kentucky Family Court Rules of Procedure and Practice.
On July 28, 2017, the Knott Family Court awarded temporary joint custody to the parents with Johnson as the primary residential parent; Popp was granted two overnight visitations per week. Popp moved to alter, amend, or vacate the order or, alternatively, to make specific findings of fact. The family court made additional findings, concluding equal parenting time was not in the best interest of the child at that time.
Both Johnson and Popp moved to modify the temporary timesharing order. After considering the evidence and arguments presented by both parties, the family court concluded "the parties are not capable of exercising equal timesharing with their minor child, nor would it be in the minor child's best interest for the parties to exercise equal sharing of the minor at this time." However, the court did conclude Popp was entitled to an extension of his visitation and awarded him visitation on alternating weekends from Thursday at 2:00 p.m. through Sunday at 2:00 p.m. In fact, this resulted in a reduction of Popp's total number of visit days.
Popp moved to amend or correct clerical mistakes in the order and for a custodial or psychological evaluation of Johnson. On May 30, 2018, Knott Family Court denied his motions, adopting verbatim Johnson's proposed order. It concluded the modified order "allows him a greater period of consecutive days with the child and significantly decreased the amount of travel time."
Based, in part, on these adverse rulings, Popp filed a motion for Judge Marshall to recuse. He also moved to vacate the May 30, 2018 order and reminded the family court it had not ruled on his motion to strike Johnson's petition and dismiss the case or on Johnson's motion to file a second amended complaint. On July 16, 2018, the family court entered three separate orders: (1) granting Johnson's motion to file second amended complaint and denying Popp's motion to strike the petition; (2) denying Popp's motion for Judge Marshall to recuse; and (3) denying Popp's motion to transfer this matter to Scott Family Court.
This motion was brought before the Chief Justice of the Kentucky Supreme Court upon certification of the Clerk of Knott County Circuit Court. Chief Justice Minton denied the motion without prejudice to seek appellate review after entry of a final judgment, finding "[Popp] has failed to demonstrate any disqualifying circumstances that would require the appointment of a special judge under Kentucky Revised Statute (KRS) 26A.020."
After a final custody hearing, Knott Family Court rendered its findings of fact, conclusions of law, and judgment on April 22, 2019. The ruling was favorable to Popp, awarding joint custody with equal timesharing. These appeals followed.
STANDARD OF REVIEW
Child custody matters involve two types of review. First, a circuit court's findings of fact are examined for clear error and will be set aside when they lack substantial evidence to support them. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence from the record must support any factual determinations regarding a child custody or visitation decision. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Second, the analysis shifts to an examination of legal conclusions. "[W]e afford no deference to the trial court's application of the law to the facts[.]" Laterza v. Commonwealth, 244 S.W.3d 754, 756 (Ky. App. 2008).
Kentucky Rules of Civil Procedure.
ANALYSIS
Johnson's Appeal , No. 2019-CA-000820-ME
Johnson asserts the family court erred in awarding joint custody and equally shared parenting time. Additionally, she argues it erred by retroactively applying the rebuttable presumption that joint custody with equal timesharing pursuant to KRS 403.270(2) and 403.280(2) is in the child's best interest. We are not persuaded by the arguments.
Because a final order of custody has been entered, whether KRS 403.280(2), which deals with temporary custody orders, was applied retroactively is moot.
Kentucky courts determine custody in accordance with the best interest of the child. KRS 403.270(2). The Kentucky Legislature amended KRS 403.270 to include a rebuttable presumption that joint custody and equal parenting time is in the best interest of the child. This amendment became effective on July 14, 2018, while this case was pending. The family court applied the presumption and addressed each of the applicable factors enumerated in KRS 403.270(2). It concluded Johnson was unable to overcome the presumption.
Johnson suggests in her brief that there are numerous facts about Popp, which she believes sufficiently overcome the presumption. But she never cites where in the record this Court might find those facts. There are few citations to the record at all and none to these assertions. That violates our procedural rules, CR 76.12(4)(c)(iv) and (v); these rules are not mere niceties but are essential in reaching the substance of an advocate's argument. Commonwealth v. Roth, 567 S.W.3d 591, 593 (Ky. 2019) (citation omitted) ("Procedural rules 'do not exist for the mere sake of form and style.'").
Although we have not undertaken the task of counting how many allegations she makes in her brief, Popp asserts that she makes as many as 50 factual allegations against him.
Commonwealth, Department of Highways v. Richardson states the "basic principle that an appellant has the obligation and burden to establish trial error upon appellate review." 424 S.W.2d 601, 604 (Ky. 1967). To satisfy that obligation and burden (absent manifest injustice), an appellant must accomplish at least four things. First, the appellant must preserve the error in the trial court. Keco v. Ayala, 592 S.W.3d 753, 757 (Ky. App. 2019) ("manifest injustice required to prevail on his unpreserved claim of error"; otherwise relief is not available on appellate review). Second, he must make sure the certified record on appeal includes: the alleged error; proof of how the error was preserved; and, if the claim of error relies on any facts, the evidence necessary to demonstrate the error. Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968) (appellant is responsible for ensuring the record is "sufficient to enable the court to pass on the alleged errors"). Third, the appellant must include a statement of preservation immediately after the argument heading. CR 76.12(4)(c)(v). Fourth, he must pepper his brief with citations to the record directing the reviewing Court where to find evidence of the factual assertion. CR 76.12(4)(c)(iv), (v).
The rule regarding citation to the record could not be clearer. It says citation to the record must be included both in the Statement of the Case and in the Argument(s). In the Statement of the Case, there must be:
ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.CR 76.12(4)(c)(iv) (emphasis added). The references must be "ample," meaning plentiful, and they must support "each of the statements narrated" in the "summary of the facts and procedural events necessary to an understanding of the issues . . . ." Id. In addition, the Argument(s) must also include "ample supportive references to the record . . . ." CR 76.12(4)(c)(v). Johnson's brief fails in this regard.
"It is well-settled that an appellate court will not sift through a voluminous record to try to ascertain facts when a party has failed to comply with its obligation under [our rules of procedure] . . . to provide specific references to the record." Roth, 567 S.W.3d at 595 (quoting Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009)). "[I]t is not our duty to search the record to find support for [Johnson's] argument." Smith v. Smith, 235 S.W.3d 1, 9 (Ky. App. 2006) (citation omitted).
The record in this case consists of thirteen volumes, multiple depositions, and video recordings.
Failing to cite to the record where the Court can find evidence sustaining an appellant's argument is no different than having no record of such evidence before us at all. The same rule applies in both scenarios - we presume the record supports the ruling under review. As the Supreme Court has said:
We will not engage in gratuitous speculation as urged upon us by appellate counsel, based upon a silent record. 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) (citation omitted). We decline to address a fact-based argument not supported by citation to facts.
Johnson next contends the family court erred by retroactively applying the presumption found in KRS 403.270(2). We find Johnson's argument without merit.
As this Court has previously said in two unpublished opinions, the amendment of KRS 403.270(2) in 2018 is not retroactive. That is not where Johnson's argument fails.
Page v. Page, No. 2018-CA-001634-ME, 2019 WL 2317157, at *3 (Ky. App. May 31, 2019) ("[A]s the statute does not include language requiring retroactive application, it is apparent that the General Assembly did not intend its amendment of KRS 403.270 to apply retroactively."); Miller v. Miller, No. 2017-CA-000889-ME, 2019 WL 169132, at *2 n.7 (Ky. App. Jan. 11, 2019) ("KRS 403.270 was amended effective July 14, 2018 . . . . Because we find that the statutory changes effected substantive changes in the law, we do not apply them retroactively to this case. KRS 446.080. See also Moore v. Stills, 307 S.W.3d 71, 81 (Ky. 2010) (statute which alters the law in a substantive way may not be applied retroactively)."). --------
Johnson argues that because she filed her petition on June 6, 2017, twenty-three days before the effective date of the amendment to KRS 403.270(2), the new law cannot apply retroactively to the adjudication of custody. She fails to understand that, absent statutory language affecting the default position that statutes do not act retroactively, the filing date of an action is not relevant.
When speaking of the retroactive or prospective nature of new laws, we are necessarily comparing two points in time. The first is the effective date of the legislation. But the second is not the date an action is filed. The second point in time is the date of the res litigiosae, which translates as "the thing being litigated[.]" BLACK'S LAW DICTIONARY (7th ed. 1999). In a criminal case, the res litigiosae is the crime alleged to have been committed. A law with an effective date after the date of the crime - the res litigiosae - will not affect the adjudication.
The res litigiosae is different here. In this custody case, from the moment of their child's birth, Johnson and Popp were joint custodians as a matter of law. KRS 405.020(1) ("The father and mother shall have the joint custody, nurture, and education of their children . . . ."). "[T]he thing being litigated" now is whether there should be a change from the joint custody established in KRS 405.020(1) or whether it should be left as is. It does not matter that the birth and the filing of the petition both predated the effective date of the legislation. As the Supreme Court of the United States said:
Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations. When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.Landgraf v. USI Film Products, 511 U.S. 244, 273, 114 S. Ct. 1483, 1501, 128 L. Ed. 2d 229 (1994). It does not matter that the birth, the establishment of joint custody pursuant to KRS 405.020(1), and the filing of the petition all predated the legislation. None of these is the res litigiosae.
The adjudication to be made here - the thing being litigated - is custody going forward, and the law that applies to that res litigiosae is the law in effect when the decision is made. Id. ("Although we have long embraced a presumption against statutory retroactivity, for just as long we have recognized that, in many situations, a court should 'apply the law in effect at the time it renders its decision . . . .'"). Like the Supreme Court of the United States in another case, this Court will "anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711, 94 S. Ct. 2006, 2016, 40 L. Ed. 2d 476 (1974). Applying the newer version of KRS 403.270 to this case will not result in a manifest injustice; the family court did not err by applying the amended version of KRS 403.270. Popp's Appeal , No. 2019-CA-000817-ME
Popp asserts the family court erred by: (1) granting Johnson's motion to file a second amended petition and denying his motion to strike the petition from the record; (2) denying his motion for Judge Marshall to recuse; and (3) denying his motion to transfer the matter to the Scott Family Court. He contends that, because of these errors, the April 22, 2019 findings of fact and conclusions of law should be reversed. Again, this Court finds no error by the family court.
Popp first asserts Johnson's initial petition for custody had three defects, requiring dismissal of the case: (1) it failed to include all the requirements of KRS 403.838(1); (2) it failed to comply with eFiling Rule 11(4); and (3) it was fraudulently notarized. We note from the outset that Kentucky is a notice pleading state, and Popp admitted he was on notice of the action prior to filing a petition in Scott County. Therefore, if there is error, Popp was not prejudiced. Nonetheless, we will address his concerns.
KRS 403.838(1) lists information, such as the names and addresses of the parties involved in the action, that must be contained in a petition for custody. Although these requirements were not initially met, this defect does not mandate dismissal of the petition. KRS 403.838(2) states "[i]f the information required by subsection (1) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished." The family court was not required to dismiss the petition. The appropriate action would have been for Popp to file a motion to stay the proceedings until the appropriate information was furnished.
We also acknowledge that Johnson's initial petition did not meet the requirements of eFiling Rule 11(4), because it contained only an electronic signature. Another subsection of that rule, eFiling Rule 11(5), states that failure to prove the authenticity of the record will result in the document being stricken from the record. However, the eFiling rules are supplemental to the Kentucky Rules of Civil Procedure, see eFiling Rule 4(1), and do not abridge any substantive rights of the parties, eFiling Rule 2. Therefore, Johnson had the right to move for leave to file an amended complaint. When the family court granted her leave, this cured any defect in the petition. We find the family court did not abuse its discretion by denying Popp's motion to dismiss.
Popp further asserts it was error to grant Johnson leave to file a second amended complaint. CR 15.01 allows a trial court to grant leave to amend when justice so requires. "Ultimately, whether a party may amend his complaint is discretionary with the circuit court, and we will not disturb its ruling unless it has abused its discretion." Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869-70 (Ky. App. 2007). The court may consider whether the non-moving party would be prejudiced as a factor in deciding whether to grant leave. Id. at 869. As we already said, Popp was not prejudiced by any of these failings, all of which were corrected.
The family court obviously concluded justice required leave be granted to correct the deficiencies in the petition. The court did note that Johnson lacked knowledge that her prior attorney fraudulently notarized her petition. More importantly, the court concluded Popp had knowledge of the action prior to filing his petition in Scott Family Court, and he would not be prejudiced by the amendment. We find no abuse of discretion in the family court's decision.
Popp's second major point of contention is that the family court erred by not transferring venue to Scott Family Court. "[C]hange of venue lies within the sound judicial discretion of the trial court." Miller v. Watts, 436 S.W.2d 515, 518 (Ky. 1969). "The exercise of that discretion will not be disturbed on appeal unless the facts clearly indicate an abuse of it." Id.
FCRPP 2(2) states "[w]hen actions concerning the same underlying claims are filed in different circuit courts within this state, the first action filed shall be the controlling action, subject to transfer by the court of that circuit . . . . On notice to the parties, the courts in both circuits may confer concerning proper venue." Here, Johnson filed her petition in Knott Family Court two days before Popp filed his petition. Knott Family Court is the proper venue. After providing notice to the parties, the judges from both Knott Family Court and Scott Family Court conferred via telephone. Scott Family Court Judge Lisa Hart Morgan acknowledged that venue was proper in Knott Family Court and declined to exercise particular case jurisdiction. The Knott Family Court properly retained control of this case.
Popp also asserts Judge Marshall erred by not disqualifying himself from the case. "Appellate courts apply an abuse of discretion standard when reviewing a trial court judge's denial of a motion to recuse." Adkins v. Wrightway Readymix, LLC, 499 S.W.3d 286, 290 (Ky. App. 2016) (citation omitted).
Canon 3E of the Judicial Code of Ethics, codified in Supreme Court Rule ("SCR") 4.300, provides that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be
questioned, including but not limited to instances [where] the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]" This principle is also codified in Kentucky Revised Statute (KRS) 26A.015, which requires that a judge disqualify himself or herself "[w]here [the judge] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding[,]" as well as "[w]here he has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(a) and (e). "Thus, under both the statute and the Canon, recusal is proper if a judge determines that his impartiality might reasonably be questioned[.]" Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 471 (Ky. 2010) (internal citations and quotations omitted).Minks v. Commonwealth, 427 S.W.3d 802, 806 (Ky. 2014).
Popp alleges Judge Marshall was not faithful to the law and had showed bias, presumably on the basis of Popp's gender. His contention is premised on Judge Marshall's adverse and delayed rulings, and his adoption, verbatim, of Johnson's proposed order denying his motion to vacate.
The bulk of Popp's evidence is based merely on adverse rulings. A "trial court's adverse ruling, even if erroneous, does not provide a basis for finding bias." Bissell v. Baumgardner, 236 S.W.3d 24, 29 (Ky. App. 2007). His contention that the delayed rulings of Judge Marshall show partiality is baseless. Given the caseload of family courts, they are entitled to broad discretion in managing their dockets. And, the family court noted it intentionally delayed ruling on his motion to dismiss and transfer of venue pending his appeal to this Court of the Scott Family Court's order dismissing his petition.
Many of Judge Marshall's findings of fact throughout this litigation are favorable to Popp. And, the court ultimately awarded Popp joint custody with equal parenting time, the outcome he sought from the outset. Our review shows no evidence compromising the impartiality of Judge Marshall. Again, we find no abuse of discretion.
CONCLUSION
Based on the foregoing, we affirm the Knott Family Court's April 22, 2019 findings of fact and conclusions of law granting joint custody with equal timesharing between the parents and its related July 16, 2018 orders.
ALL CONCUR. BRIEFS FOR APPELLANT/CROSS-
APPELLEE: John P. Schrader
Lexington, Kentucky BRIEFS FOR APPELLEE/CROSS-
APPELLANT: Tammy C. Skeens
Pikeville, Kentucky