Opinion
NO. 2016-CA-000679-ME
03-24-2017
DENISE STILTNER APPELLANT v. KENDRA STILTNER APPELLEE
BRIEF FOR APPELLANT: W. Jeffery Scott Grayson, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 15-CI-00542 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE AND STUMBO, JUDGES. COMBS, JUDGE: This case involves a dispute over visitation by a parent with her minor child. Appellant, Denise Stiltner (Denise), the child's custodian and paternal grandmother, appeals from an Order of the Greenup Family Court granting visitation to the Appellee, the child's mother, Kendra Stiltner (Kendra). Kendra's visitation was to be supervised by her own parents. Finding no error, we affirm.
Kendra was married to Denise's son, Clay Stiltner. Kendra and Clay are the biological parents of a female child (Daughter), who was three years of age at the time of the proceeding below. Previously, Denise had been given custody of Daughter through juvenile court based upon allegations involving wanton endangerment. Kendra and Clay divorced in May of 2015. There was no order providing for visitation in the juvenile proceeding -- although Denise allowed Kendra to visit Daughter at Denise's home.
On December 18, 2015, Kendra filed a Verified Motion in Greenup Family Court for temporary joint legal custody and sought to establish immediate "timesharing" with Daughter. Kendra stated that in the event that the Court was not comfortable granting her unsupervised visitation, her own parents, the Millers, were agreeable to supervising visitation.
The Millers have custody of Kendra's two older children, then ages six and eight, each of whom has a different father. Kendra has supervised visitation with them at her parents' home.
The matter was set for hearing on March 22, 2016. On March 16, 2016, Denise filed an Objection and Motion on grounds that she had received Kendra's witness and exhibit list by fax on March 16, 2016 -- fewer than 14 days prior to the hearing as required by Family Court Rules of Practice and Procedure (FCRPP) 7. Denise moved the court "for an order striking the witness list and exhibit list and disallowing the use of the witnesses." On March 21, 2016, Denise also objected to Kendra's Supplemental Witness List served by fax on March 18, 2016.
At the commencement of the hearing on Kendra's Motion, Mr. Scott, Denise's counsel, explained that he had filed objections to Kendra's witness lists as untimely and had asked the court to strike them. The trial court offered counsel the option of a continuance at that time. Instead, a lengthy on-the-record discussion ensued. Ms. Frye, Kendra's counsel, asked to proceed on her temporary motion and explained that Kendra was only seeking visitation supervised by her own parents, who had never even met Daughter. The discussion began to deteriorate. Ms. Frye explained that Mr. Scott:
has been involved in this litigation from day one and knows full well that the Millers have custody of the two other children. Judge Flat has had numerous hearing on that with both of the other fathers. And it's ridiculous for him or anybody sitting at that table to even assert that they are not competent to supervise a visit. That's outrageous.
MR. SCOTT: Any reasonably competent adult - and I have no reason to think that [the Millers] are not reasonably competent adults - any reasonably competent adult can do something appropriately for some period of time. What we're talking about is placing a child in their care. If Kendra is still doing the things that we've alleged, which is the drug use, when [Daughter] has never been around that. We're talking a short period of time.
THE COURT: To me, it makes more of an argument on your side, Mr. Scott, if the visitation is for long periods of time.
MR. SCOTT: If the visitation is for what?
THE COURT: Is for long periods of time. If we're talking about short periods of time, then I don't see what difference it makes. ... I don't think, to say that these people can't supervise for two hours. But if you're saying for four days, I don't know what kind of visitation there is in question.
MR. SCOTT: I don't think that it's appropriate for the court to adjudge that there could be some supervisor of visitation without hearing evidence.
THE COURT: (Interposing) Call your first witness, Ms. Frye.
MR. SCOTT: Is the court overruling our motion?
THE COURT: I'm going to overrule your motion, Mr. Scott. You leave me no choice.
On April 8, 2016, the Family Court entered an Order, in relevant part, as follows:
Prior to the beginning of testimony, the attorney for the Respondent Denise Stiltner moved the Court to prohibit the Court from introducing certain evidence because the witness list was not timely filed. The Court gave the Respondent the option of continuing the case which was refused. The Court declined to prohibit the testimony and allowed the hearing to begin.
THE COURT FINDS that [Kendra] ... has two other children.... She has lost custody of those two children .... [who] reside with [her] parents.
...
During her testimony, ... [Kendra] readily admitted that she gets to see [Daughter] anytime she wants, but the visitation has to take place with Denise Stiltner.
Kendra Stiltner testified that she lived with the mother-in-law for seven or eight months. She states that
she has always seen the child on a regular basis. Sometimes Denise Stiltner would allow Kendra and Clay Stiltner to take the child out of the home unsupervised. The parties were divorced in May 2015.
According to Kendra Stiltner, she calls the child every day. She sees the child at her ex-mother-in-law's home but is not allowed to take the child outside the supervision of Denise Stiltner. She wants a set schedule and she wants her parents to be able to supervise her visits.
[Kendra] readily admits that she smoked synthetic Marijuana in the past. There is a photograph of her smoking a pipe that was introduced into evidence. Further, there are pictures of synthetic Marijuana in her car, which she states someone else must have put it in there. There is also testimony of the Petitioner being under the influence of drugs on a couple of occasions.
[Kendra] goes to see her other two children at her mom and dad's house every Monday, Thursday and Friday for approximately three hours.
David Miller is the father of Kendra. He states that he and his wife has not had any contact with [Daughter]. [Daughter] has never met her two siblings. He is willing to supervise and do the pick up and drop off. Mr. Miller's work schedule is two days on and five days off. He works every other weekend. Kendra is required to have supervised visitation with her other two children at his home.
Denise Stiltner lives in Ashland, Kentucky. She states that she has seen both Kendra and Clay smoke synthetic Marijuana at Kendra's house. According to Denise Stiltner, Kendra sees [Daughter] all of the time at her house. She has never told Kendra that she couldn't come over and see the child. She objects to any visitation being unsupervised. She is afraid of Kendra's drug usage and that she is very irresponsible.
Based on the foregoing, the COURT HEREBY FINDS that it is in the best interest of the child to allow [Kendra] to have visitation with [Daughter], but that said visitation shall be supervised. The COURT ORDERS that the supervision shall be by Denise Stiltner in the beginning, but the COURT ORDERS that there be visitation by Kendra with her parents [the Millers] present until such time that [Daughter] becomes comfortable with Mr. and Mrs. Miller. The COURT FINDS that it is in the best interest of the child that the child develop a relationship with her other two siblings. Visitation by Kendra with her other two children is supervised by Mr. and Mrs. Miller. The COURT FURTHER ORDERS that once the child becomes familiar and comfortable with Mr. and Mrs. Miller that Kendra's visitation with Daughter shall be at the same times as she is currently visiting with her two other children, which is Monday, Thursday and Friday for three hours. If the parties are unable to agree when the supervised visits with the Millers shall begin, then the COURT ORDERS that same shall begin three months after the date of this Order, unless the parties agree to begin same earlier.
The record reflects that Mr. Miller has been married to Kendra's mother, Renee, for 30 years, and that Renee does not work outside the home. Mr. Miller is a pharmacist at CVS.
On April 18, 2016, Denise filed a Motion to Alter, Amend, or Vacate which the Family Court denied by Order entered April 28, 2016. On May 10, 2016, Denise filed Notice of Appeal to this Court.
KRS 403.320(1) provides that:
Kentucky Revised Statutes. --------
A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.
Our discretion on such a matter is limited, and we may only reverse "a trial court's determinations as to visitation if they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case." Hudson v. Cole, 463 S.W.3d 346, 350 (Ky. App. 2015).
On appeal, Denise argues that the Family Court erred in awarding supervised visitation without hearing testimony from Mrs. Miller but rather in relying upon testimony from Mr. Miller, disclosure of whom on Kendra's witness list was untimely. Denise cites no authority in support of her argument other than the Family Court Rule.
Kentucky Family Rule[s] of Practice and Procedure (FCRPP) 7 provides:
(1) Unless otherwise ordered by the court, in any action in which the permanent custody or time-sharing of the child(ren) is in issue, each party shall, not less than 14 days prior to the day set for hearing, provide the other party(ies) with a list of the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a witness, as well as a list of exhibits to be entered.(Emphasis added).
In Commonwealth, Cabinet for Health and Family Services v. S.H., 476 S.W.3d 254 (Ky. 2015), our Supreme Court analyzed that rule as follows:
FCRPP 7 falls within "Sec. III. Custody, Shared Parenting, Visitation, and Support" and is titled "Custody." Rule 6, the "General Provisions" rule governing that section, provides, "[t]he provisions of this
section shall apply to all actions in which there are disputes regarding custody, shared parenting, visitation or support."Id. at 258-59 (emphasis added).
. . .
[W]e must also consider the effect of the first phrase of the rule[,] "Unless otherwise ordered by the court" ... [and whether] its presence in the rule gives discretion to a family court to alter the 14 day notice requirement....
. . .
We hold that the introductory phrase of FCRPP 7(1) extends discretion to the family court to reasonably alter the notice requirement. The reasonableness of the alteration will depend on the specific facts of the case.
We find no abuse of discretion in the trial court's proceeding with the hearing under the specific facts of this case. The trial court properly considered the best interests of the child, and it thoughtfully crafted an individualized Order allowing for reasonable, supervised visitation.
We affirm the Opinion of the Greenup Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: W. Jeffery Scott
Grayson, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye
Russell, Kentucky