Opinion
NO. 2014-CA-001745-ME
06-19-2015
SHAUN SHOCKLEY APPELLANT v. JESSICA RUSSELL; JUNIOR RUSSELL; AND KATHY RUSSELL APPELLEES
BRIEFS FOR APPELLANT: Brad Coffman Bowling Green, Kentucky BRIEF FOR APPELLEES JUNIOR AND KATHY RUSSELL: David Goin Scottsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 14-CI-00040
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND STUMBO, JUDGES. DIXON, JUDGE: Shaun Shockley appeals from an order of the Allen Circuit Court designating Junior and Kathy Russell, the maternal grandparents, as de facto custodians of Shaun's minor child, R.R. We affirm.
In February 2014, Shaun filed a motion seeking sole custody of R.R. Junior and Kathy Russell also filed a motion for custody contending they were the de facto custodians of R.R. The court consolidated the cases and held a hearing on the issue of whether Junior and Kathy were indeed de facto custodians.
The court heard testimony from Junior, Kathy, and Shaun. It was undisputed that R.R. had resided with Junior and Kathy from the time she was born in November 2012. Junior and Kathy's daughter, Jessica (R.R.'s mother), also lived in the home, but she resided in the lower level of the house which had its own entrance. Junior testified that R.R. lived with Kathy and him in the upper level of the house. Junior did not work, and he took care of R.R. during the day while Kathy was working. According to Junior, Jessica did not work, but she would stay out all night with friends and sleep during the day. He acknowledged that, if Jessica was awake, she would help him with R.R. Kathy testified that she paid all of the bills associated with the house and purchased groceries. Kathy acknowledged that Shaun paid child support, which was usually spent on diapers. According to Kathy, Jessica did not contribute financially to R.R.'s care, aside from registering R.R. for WIC and food stamps. Shaun testified that he had visitation with R.R. every-other weekend and that he paid child support of $50.00 per week through the child support office. Shaun acknowledged on cross-examination that Junior and Kathy, rather than Jessica, had been the primary caregivers for R.R.
At the conclusion of the hearing, the court found that Junior and Kathy were the de facto custodians of R.R. The court determined that the evidence clearly established that Junior and Kathy had been the primary caregivers for R.R. for at least six months prior to the filing of the petition. The court also concluded that Junior and Kathy had been the primary financial supporters of R.R. by providing a home, food, clothing, and other necessities that were not covered by WIC or child support. At a subsequent hearing, the court determined that it was in R.R.'s best interest for Junior and Kathy, Jessica, and Shaun to share joint custody, with Junior and Kathy designated as primary residential custodians. The court denied Shaun's motion for post-judgment relief, and this appeal followed.
On appeal, we will not disturb the trial court's findings of fact unless they are clearly erroneous, bearing in mind that the lower court was in the best position to weigh the evidence and assess witness credibility. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). We review de novo the court's application of the law to the facts. Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky. App. 2011).
In a custody dispute between a parent and non-parent, KRS 403.270(1)(b) provides that a non-parent who qualifies as a de facto custodian is entitled to the same standing that is given to each parent in the court's custody determination. To qualify as a de facto custodian, the non-parent must establish by clear and convincing evidence that he was "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 . . . ." KRS 403.270(1)(a). Here, Junior and Kathy had to establish that Jessica, as the biological parent, had "abdicated the role of primary caregiver and primary financial supporter" of R.R. for at least six months. London v. Collins, 242 S.W.3d 351, 358-59 (Ky. App. 2007).
On appeal, Shaun argues the court's designation of Junior and Kathy as de facto custodians was clearly erroneous because they were not the primary caregivers and financial supporters of R.R.; rather, they simply were loving grandparents who assisted Jessica and Shaun in caring for R.R.
Shaun's argument is unpersuasive. Shaun acknowledged on cross-examination that he believed Junior and Kathy, rather than Jessica, had been the primary caregivers of R.R. Further, there was ample testimony that Junior and Kathy provided a home, food, clothing, and other necessities for R.R. without any financial contribution from Jessica. Although Shaun points to his own care-giving and financial support of R.R., we are mindful that Junior and Kathy were required to prove they were R.R.'s "primary caregiver[s] and primary financial supporter[s] - not that [they were] the child's sole, only or exclusive provider[.]" Ball v. Tatum, 373 S.W.3d 458, 463 (Ky. App. 2012).
At the conclusion of the hearing, Shaun's attorney addressed the court, conceding that Junior and Kathy were "probably the primary" caregivers. --------
After carefully reviewing the record, we believe there was clear and convincing evidence that Junior and Kathy were the primary caregivers and financial supporters of R.R., who had lived with them for a period of more than six months. We conclude the trial court did not err in designating Junior and Kathy as the de facto custodians of R.R.
For the reasons stated herein, the judgment of the Allen Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brad Coffman
Bowling Green, Kentucky
BRIEF FOR APPELLEES
JUNIOR AND KATHY RUSSELL:
David Goin
Scottsville, Kentucky