Opinion
2022-CA-0683-MR
04-21-2023
ANGELA J. WATKINS APPELLANT v. VANNA R. BRITTAIN; ALEXUS T. WALKER; AND DEMONTREY A. NEAL APPELLEES
BRIEF FOR APPELLANT: Angela J. Watkins, pro se Nicholasville, Kentucky BRIEF FOR APPELLEE VANNA R. BRITTAIN: Janet Humphrey Cole Nicholasville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE CARL D. DEVINE, JUDGE ACTION NO. 22-CI-00968
BRIEF FOR APPELLANT:
Angela J. Watkins, pro se
Nicholasville, Kentucky
BRIEF FOR APPELLEE VANNA R. BRITTAIN:
Janet Humphrey Cole
Nicholasville, Kentucky
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
OPINION
JONES, JUDGE:
Appellant, Angela Watkins, pro se, appeals from an order of the Fayette Circuit Court sua sponte denying her petition for grandparent visitation. Because the circuit court improperly dismissed the petition sua sponte, we vacate and remand for further proceedings.
I. Background
Appellant ("Watkins") is the maternal grandmother of the minor child, J.N. Appellees, Demontrey Neal and Alexus Walker, are the biological parents of J.N. Appellee ("Brittain") is the paternal great-grandmother. During the pendency of a juvenile matter involving the child in 2017, Brittain was awarded permanent sole custody of the child, with visitation afforded to the biological parents.
On September 2, 2021, Watkins filed her first petition for grandparent visitation. Brittain filed a motion to dismiss the petition. The circuit court conducted a hearing on November 5, 2021, and subsequently entered an order including findings of fact which granted Brittain's motion and dismissed the petition on November 23, 2021. That order was not appealed.
On April 8, 2022, Watkins filed a second petition for grandparent visitation in a new action, Case No. 22-CI-00968. (Record ("R.") at 7.) On May 11, 2022, the circuit court dismissed the petition sua sponte, stating that this precise issue had already been heard and dismissed in the previous action. (R. at 14.) This appeal followed. The only appellee's brief received was filed by Brittain.
The first action, Case No. 22-CI-02674, was heard by the Honorable Kathy Stein. Watkins filed her second petition following the appointment of the Honorable Carl Devine to the Fayette Circuit Court, Sixth Division.
II. Standard of Review
We review the dismissal of a petition de novo, without deference to the trial court decision, as it is purely a question of law. See, e.g., Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642, 645 (Ky. App. 2010) (adopting a de novo standard for review of a motion to dismiss generally); Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (adopting a de novo standard of review of a motion to dismiss for failure to state a claim). In this case, the sole issue we consider, as a matter of law, is whether the circuit court properly dismissed this petition for grandparent visitation when it did so sua sponte without a hearing or notice to the petitioner. We hold that it did not.
III. Analysis
Generally, it is improper for circuit courts to dismiss petitions or complaints sua sponte, unless the court lacks subject matter jurisdiction. Storer Communications of Jefferson County., Inc. v. Oldham County Bd. of Educ., 850 S.W.2d 340, 342 (Ky. App. 1993); see also Doster v. Kentucky Parole Bd., 308 S.W.3d 231, 233-34 (Ky. App. 2010). There is no question that circuit courts have subject matter jurisdiction over petitions for grandparent visitation; both parties correctly note that KRS 405.021 affords it.
Kentucky Revised Statutes.
Even in the circumstances in which a sua sponte dismissal by a circuit court with subject matter jurisdiction may be appropriate, the law prescribes minimum requirements for the circuit court to follow to adhere to the tenets of due process and protect the plaintiff or petitioner from undue prejudice. KY. CONST. § 1-2; U.S. CONST. amend. XIV; see Fourroux v. City of Shepherdsville, 148 S.W.3d 303, 305 (Ky. App. 2004). Those minimal procedures include: (1) service of the complaint or petition; (2) notification to all parties of intent to dismiss; (3) providing the petitioner or plaintiff with a chance to amend their pleading or respond to the notification; (4) a chance for the opposing party to respond; (5) and if dismissed, reasons for the dismissal. Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987) (citing Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983)). In applying the Gall factors, we have stated that "[w]hile a court might be justified in using its inherent powers to dismiss sua sponte for lack of subject matter jurisdiction, it is fundamental that a trial court has no authority to otherwise dismiss claims without a motion, proper notice and a meaningful opportunity to be heard." Storer Communications, 850 S.W.2d at 342.
Furthermore, in matters of grandparent visitation, Kentucky courts have held that the need for a circuit court to hold an evidentiary hearing and enter findings of fact is heavily implied by KRS 405.021, though it is not explicitly stated there. K. C. O. v. Cabinet for Health &Fam. Servs., 518 S.W.3d 778, 785 (Ky. App. 2017) (holding that "an evidentiary hearing at which witnesses are subject to cross-examination and after which a judge enters findings of fact and conclusions of law determining the child's best interest will be served by granting visitation, [] appears to be the only reasonable way a grandparent may meet his statutory burden") (footnotes omitted); see VanWinkle v. Petry, 217 S.W.3d 252, 258 (Ky. App. 2007) (determining that a circuit court cannot increase grandparent visitation sua sponte without a hearing); see also, e.g., Thomas v. Phillips, No. 2017-CA-000127-ME, 2018 WL 4191114, at *2 (Ky. App. Aug. 31, 2018) (concluding that a petition for grandparent visitation was improperly dismissed sua sponte by the circuit court without conducting an evidentiary hearing or considering the merits of the petition).
We cite this unpublished opinion for reference as persuasive, nonbinding authority. Rules of Appellate Procedure ("RAP") 41.
IV. Conclusion
In the present case, there was no motion to dismiss before the circuit court, there was no service of the petition, there was no notification of intent of dismissal, and there was no opportunity for Watkins to respond or be heard. Furthermore, the circuit court made no findings of fact, and, most concerningly, there was no hearing of any kind. Since subject matter jurisdiction is not implicated in this case, it is clear that the circuit court erred when it dismissed this petition sua sponte. Accordingly, we vacate the May 11, 2022, order and remand this case to the circuit court for further proceedings consistent with this Opinion.
We will not consider Brittain's argument that the order of dismissal should be upheld on the basis that the November 23, 2021, order is res judicata as to the May 11, 2022, order. Specifically, Brittain maintains that the circuit court rightfully concluded that the second petition should be barred by issue and claim preclusion. (Appellee's Brief at 5.) However, res judicata is an affirmative defense to be considered by the circuit court after being asserted in a responsive pleading and addressed in a hearing. See Sedley v. City of W. Buechel, 461 S.W.2d 556, 559 (Ky. 1970).
ALL CONCUR.