Opinion
NO. 2015-CA-000753-ME
03-04-2016
CINDY UTZ APPELLANT v. DAVID UTZ APPELLEE
BRIEF FOR APPELLANT: Patrick J. Monohan Florence, Kentucky BRIEF FOR APPELLEE: Patrick J. Walsh Newport, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 12-CI-01473 OPINION
AFFIRMING BEFORE: CLAYTON, MAZE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Cindy Utz appeals from a Campbell Family Court order denying her Kentucky Rules of Civil Procedure (CR) 60.02 motion. Cindy seeks to set aside the final order in her dissolution action from David Utz in which he was awarded sole custody of their three minor children.
Cindy and David were married in 1987. On November 27, 2012, David filed a petition for dissolution of marriage and a motion for temporary custody, child support, and exclusive use of the marital residence. Following a hearing on December 4, 2012, at which Cindy was present but not represented by counsel, the family court granted David temporary custody of the children, exclusive use of the marital residence during the pendency of the action and supervised visitation for Cindy to be overseen by Cindy's mother. The family court ordered Cindy to provide written proof she was receiving treatment from her psychiatrist, Dr. Joseph Klein.
On May 1, 2013, the parties mediated a property settlement which was later incorporated into the final decree.
At a hearing on May 10, 2013, at which Cindy was present, the family court set the matter for a final hearing on August 16, 2013, to resolve the remaining child custody issues. The family court advised Cindy to obtain counsel.
On August 9, 2013, the guardian ad litem appointed for the children filed an emergency ex parte motion seeking to suspend visitation because Cindy had been arrested for assaulting her mother. The family court entered a protective order suspending Cindy's visitation.
On August 16, 2013, the date set for the final hearing, Cindy appeared without an attorney, advised the family court that she mistakenly thought counsel representing her in another matter would be representing her in this matter, and requested a continuance to allow her to obtain counsel. The family court, over David's objection, continued the final hearing until December 2, 2013, but cautioned this would be the last and only continuance granted to allow Cindy to obtain counsel.
On December 2, 2013, Cindy again appeared without counsel for the final hearing. Cindy did not request a continuance to allow her to obtain counsel.
The family court heard testimony from David and Cindy. David testified regarding Cindy's history of mental health problems beginning in 2011 and three incidents requiring involuntary hospitalizations in 2011 and 2012.
During the first incident, David came home from work to find all the doors in their house open, several large garbage bags filled with random household objects, and Cindy and the children missing. When they returned, they had additional bags filled with random household objects that Cindy had tried to find a place to dump. David called the police and Cindy was placed under a seventy-two hour hold and then hospitalized for four to six weeks.
David testified that after Cindy was released, a worker with the Cabinet for Health and Family Services visited their house and developed a safety plan. The plan included Cindy's agreement that she would take her medications, attend therapy appointments and follow all recommendations of her psychiatrist, Dr. Klein. Cindy failed to follow this plan.
During the second incident, David observed Cindy's erratic behavior and paranoia, as well as hearing disturbing reports from his children before deciding to call the police. Cindy was again placed under a seventy-two hour hold, but then released on the condition that she attend group therapy with Dr. Klein and take medication. Almost immediately, she stopped attending the therapy and taking medication.
A third incident occurred at their children's elementary school. Although David was not present, he received several calls from the school and the police. Cindy was again placed under a seventy-two hour hold. The incident resulted in David and Cindy being informed via letter from the school district superintendant that Cindy was banned from all Campbell County Schools during the school day.
David testified that each time Cindy was released from the hospital she was required to obtain follow-up treatment and medication from a psychiatrist, but each time Cindy stopped following up and stopped taking medications. David testified Cindy refused to acknowledge she had mental health issues that required therapy and medication. David testified because Cindy was still covered under his insurance, he received explanation of benefit forms regarding visits to the doctor but since entry of the temporary custody order, he had not received any forms indicating she was seen by anyone other than her dentist and gynecologist.
David testified that after Cindy left the marital residence she moved five times between different relatives' residences. It was his understanding she left each time due to arguments. The first time Cindy lived with her mother, Cindy failed to comply with having her mother supervise visitation by taking the children by herself in her vehicle. Her initial stay with her mother ended when Cindy was arrested for assaulting her mother, resulting in the ex parte order denying Cindy all visitation. However, Cindy lived with her mother an additional two times and was currently living with her.
David requested he continue to have sole custody and Cindy have supervised visitation because of her failure to address her mental health issues. He testified joint custody would not work because they could not make decisions together. He testified he supported the children through his employment as a mail carrier. Since the separation, he worked out an arrangement between his children's school and his parents to provide for the children's care while he worked. The children remained in their own home and regular schools, and were doing well.
While a number of documents were marked for identification during David's testimony and David consulted with them to refresh his recollection, the documents were not admitted into evidence. Cindy interrupted David's testimony one time, not to object but to give her version of the events. The family court instructed Cindy that she should not interrupt and would be given an opportunity to testify. At the conclusion of David's testimony, the family court explained to Cindy she could ask David questions. Cindy declined.
During Cindy's extensive testimony, she mostly confirmed David's account. Cindy admitted to being hospitalized three times for mental health issues. She agreed the three incidents her husband testified about occurred, but blamed the incidents on their marital difficulties and work issues. She explained she refused to continue taking her medications after being released from the hospital because she did not believe they were helpful and did not like their negative side effects. She believed she had been fraudulently diagnosed and wanted to be independently examined by a medical professional without reference to her past medical history.
Cindy testified her mental health was fine and she was appropriate around the children. She had a clear mind and was able to be on time for work. She testified that while having supervised visitation, she successfully drove her children to extracurricular activities, never had a DUI or been in an accident with them in the car and had not abused them. She admitted to driving her children back and forth to what was supposed to be supervised visitation without her mother being present.
Cindy testified that although she was not allowed to visit her children's schools during the school day following the third incident, she was permitted to attend extracurricular activities and successfully volunteered all day for one child's activities. She testified she was granted permission to attend another child's grade school graduation and no incident occurred.
While Cindy acknowledged she was arrested for assaulting her mother, she testified her mother had actually assaulted her. The case was dismissed after her mother failed to appear.
Cindy testified she was seeking work as a registered nurse and had no problems with her license. She testified that in 2011 and 2012 she worked for Dillards, but was terminated for insufficient sales. She later worked for Kohl's but was terminated for misconduct due to an inappropriate conversation with another employee. She was then hired by Macy's but quit during her initial training.
Cindy requested sole or shared custody of her children or unsupervised visitation. She testified her frequent moves were due to not having sufficient income to live on her own and she could qualify for a three bedroom apartment with the Dayton Housing Authority if she had partial custody of her children.
It was only at the end of Cindy's testimony that she expressed regret that she had been unable to find an attorney for the final hearing. However, she did not request a continuance.
After Cindy began to repeat her previous testimony, the family court asked Cindy to "wrap up" her testimony because she was rambling. However, she was permitted to continue for a few additional minutes. Cindy did not call any witnesses or introduce evidence.
At the conclusion of her testimony, the family court judge explained to Cindy he believed that most of the time she could probably handle unsupervised visitation, but was concerned that if she had another mental health incident while having unsupervised visitation, the children would be at risk. He stated he would feel better about granting her unsupervised visitation if Dr. Klein or another professional indicated she was being treated or did not need treatment, and his decision as to visitation was "not forever." Cindy was allowed to make additional comments she wished the family court to consider.
On January 23, 2014, the family court entered a decree of dissolution and findings of fact and conclusions of law. In its findings, the family court addressed Cindy's significant mental health issues, noting she had at least three involuntarily hospitalizations, refused to provide proof to the court that she is treating with her therapist and moved approximately five times in the last twelve months. The family court found David had stable employment and the children had been in David's exclusive care since the temporary custody order and had done well.
The family court concluded it was in the children's best interest that sole custody be awarded to David because they had done well under his exclusive care with the assistance of his parents and "[Cindy] does not acknowledge the fact that she needs mental health treatment or medication" even though "[s]he did admit to the previous incidents and involuntary hospitalizations." The family court ordered Cindy to have supervised contact with the children at David's discretion. The order provided: "[Cindy] may move for more parenting time after she seeks and maintains mental health treatment and prescribed medication and provides proof of such, or provides a release from treatment by a mental health provider." Cindy did not file a motion for a new trial or an appeal.
Almost one year later, Cindy obtained counsel and filed a motion for relief from the final order pursuant to CR 60.02. The family court denied the motion, and this appeal by Cindy followed.
Cindy argues she is entitled to CR 60.02 relief because the family court erred by: (1) making its decision on the basis of objected to hearsay; (2) denying her an additional continuance to seek counsel despite knowing she had a mental condition that would impact her ability to make decisions; and (3) preventing her from completing her case by denying her the opportunity to fully testify, submit medical records and call witnesses. Cindy argues it was in the best interest of the children that she be awarded joint custody and unsupervised visitation, and CR 60.02 relief in the form of a new hearing on custody is appropriate based upon excusable neglect in failing to present her defense, as well as extraordinary circumstances.
We review the denial of a CR 60.02 motion for an abuse of discretion. Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky.App. 2010). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). CR 60.02 motions are limited to afford special and extraordinary relief not available in other proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
Cindy's arguments are foreclosed from review under CR 60.02 because all of these issues could have been presented in a direct appeal from the final judgment. "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal[.]" McQueen, 948 S.W.2d at 416 (internal citations and quotation marks omitted). As we have repeatedly held, a CR 60.02 motion is not a substitute for an appeal. Mauldin v. Bearden, 293 S.W.3d 392, 397 (Ky. 2009); Cinnamon v. Commonwealth, 455 S.W.2d 583, 584 (Ky. 1970).
After having carefully reviewed the evidence, we determine all of Cindy's arguments to be refuted by the record. Cindy never objected to hearsay. The documents that contained the complained of hearsay were never admitted into evidence. David was qualified to testify to his personal observations as to Cindy being hospitalized, entry into a safety plan and failure to follow up on aftercare. Additionally, any hearsay evidence relayed by David was harmless because Cindy largely confirmed his account.
Although Cindy expressed regret that she had been unable to secure counsel, Cindy never requested a continuance during the final hearing and, therefore, the family court cannot be faulted for failing to sua sponte provide an additional continuance. KRS 403.310(1) provides that "[c]ustody proceedings shall receive priority in being set for hearing." Under the circumstances of this case, we see no reason to ignore Kentucky's "expressed interest in expediting and efficiently determining child custody and visitation matters." Wallace v. Wallace, 224 S.W.3d 587, 590 (Ky. App. 2007). Additionally, Cindy's testimony was cogent, rational and did not reflect any present disability preventing her from adequately representing her own interests.
Cindy's argument that the family court erred by preventing her from completing her case by denying her the opportunity to fully testify, submit medical records and call witnesses is also refuted by the record. She was given ample time to testify and never asked to submit medical records or call witnesses. Cindy's testimony indicated her medical records would confirm David's account of her mental health problems. She simply disagreed with her psychiatrist's conclusions.
We note Cindy had no right to counsel in this civil case. See May v. Coleman, 945 S.W.2d 426, 427 (Ky. 1997); Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky.App. 2013). We do not discount the importance of the custody hearing to Cindy and that parental rights are fundamental. "The Courts of the Commonwealth have consistently recognized a parent's superior right to the care and custody of his biological children and that he has a fundamental, basic and constitutionally protected right to raise his own children." London v. Collins, 242 S.W.3d 351, 357 (Ky.App. 2007). However, this superior right does not translate into having a right to appointed counsel during custody proceedings, because unlike in a dependency or termination action, Cindy's status as the legal parent of the children was not threatened. Compare with R.V. v. Commonwealth, Dep't for Health & Family Servs., 242 S.W.3d 669, 671-73 (Ky.App. 2007) (holding that parental rights may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings.)
Cindy, as a parent, has a panoply of rights regarding her children. She has the right to reasonable visitation unless "visitation would endanger seriously the child's physical, mental, moral, or emotional health." KRS 403.320(1). She has the ongoing right to pursue modification of visitation if in the best interest of the children. KRS 403.320(3). She had the right to be considered equally with David for sole or joint custody if in the best interest of the children. KRS 403.270(2), (5). She also has the right to seek modification of custody after two years if it is in the best interests of the children. KRS 403.340(2), (3). --------
Additionally Cindy has failed to establish what, if anything, could have been excluded or presented if she had obtained counsel that would have changed the outcome of the hearing. The evidence clearly supported the family court's decision that it was not in the best interest of the children that Cindy be awarded joint custody and unsupervised visitation while her mental health problems continued to be untreated in violation of a previous court order.
Accordingly, we affirm the Campbell Family Court's denial of Cindy's motion for CR 60.02 relief.
ALL CONCUR. BRIEF FOR APPELLANT: Patrick J. Monohan
Florence, Kentucky BRIEF FOR APPELLEE: Patrick J. Walsh
Newport, Kentucky