BENJAMIN A. KIPER v. COMMONWEALTH OF KENTUCKY, EX REL. TAWNYA COY; AND EMMA PHARRIS
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RENDERED:
OCTOBER 29, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-000523-MR
BENJAMIN A. KIPER
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
INDICTMENT NO. 99-CI-00138
v.
COMMONWEALTH OF KENTUCKY,
EX REL. TAWNYA COY;
AND EMMA PHARRIS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND MINTON, JUDGES.
KNOPF, JUDGE:
Benjamin A. Kiper, pro se, appeals from an order
of the Ohio Circuit Court denying his motion for visitation with
his child, R.K.
He argues that the trial court erred in denying
his motion to appoint a guardian ad litem for him, and in
denying his motion for visitation without a hearing.
He also
asserts that the trial court applied the incorrect standard in
denying his motion for visitation.
Although we agree that the
trial court should have afforded Kiper a hearing and an
opportunity to be heard, we conclude that any error did not
affect his substantial rights because Kiper did not seek to
exercise his right to personal visitation with R.K..
Hence, we
affirm.
On April 5, 1999, the Commonwealth, on behalf of
Tawnya M. Coy, filed a complaint against Kiper seeking child
support for R.K., who was born on July 14, 1998.
On August 23,
1999, after Kiper failed to appear, the trial court entered an
order directing him to pay $160.00 per month in child support.
The court also held Kiper responsible for paying one-half of all
necessary medical expenses for the child.
In a separate proceeding in Butler Circuit Court,
Kiper was indicted and later convicted of first degree rape and
first degree sexual abuse.
fifty-five years.
He was sentenced to a total of
Although it is not entirely clear from the
record, it appears that Kiper was incarcerated shortly after the
initial child-support order was entered.
In early 2002, a
dependency action was brought in the Ohio District Court after
Tawnya Coy and her husband Mark Coy, were incarcerated.
By
agreement of the Coys, the district court placed R.K. in the
custody of Emma Pharris, the child’s great-aunt.
At that point,
Kiper appeared in the circuit court action, moving to establish
2
paternity, to proceed in forma pauperis and for appointment of a
guardian ad litem.
The trial court granted Kiper’s motions and ordered
that a paternity test be conducted.
After genetic testing
established Kiper as the father of R.K., Kiper moved for
visitation.
He requested that his sisters, to whom he has given
his power of attorney, be allowed to exercise visitation rights
on his behalf.
On August 27, 2002, the trial court entered an
order adjudging Kiper to be the father of R.K and set the case
for further proceedings before the domestic relations
commissioner.
In the same order, the trial court discharged the
guardian ad litem.
Kiper moved the court to re-appoint a
guardian ad litem for the visitation proceedings, but the trial
court denied the motion.
He also requested an order directing
his personal appearance at the commissioner’s hearing.
The
trial court denied both motions, but directed him to provide a
phone number so he could participate in the hearing by
telephone.
On the date of the scheduled hearing, R.K’s guardian
ad litem appeared, along with counsel for Emma Pharris, who had
been made a party to the action.
Kiper’s sisters appeared with
their own counsel, although they were not representing Kiper nor
were they parties to the action.
Kiper was not contacted for
3
the hearing.
However, the commissioner continued the hearing,
and directed that Kiper be provided with a copy of a report
prepared by Karol Smith-Rowe, a licensed professional clinical
counselor with LifeSkills, Inc.
Smith-Rowe had evaluated R.K.
at Pharris’s behest and concluded that the visitation sought by
Kiper would be detrimental to the child’s emotional development.
Although Kiper was provided with a copy of the report,
the hearing was not rescheduled.
On January 30, 2004, the
commissioner issued his report recommending that Kiper’s motion
for visitation be denied based upon Smith-Rowe’s report and
after considering the nature of the offenses for which Kiper had
been convicted.
In separate orders entered on February 20,
2004, the trial court overruled Kiper objections and adopted the
commissioner’s report.
This appeal followed.
Kiper raises three grounds of error in this appeal.
First, he argues that the trial court erred in denying his
motion to appoint a guardian ad litem to represent him during
the visitation proceedings.
merit.
This argument is entirely without
While CR 17.04 requires appointment of a guardian ad
litem if a prisoner fails to defend a civil action brought
against him, the rule has no application where the action is
brought by, rather than against, the prisoner.1
1
In this case,
May v. Coleman, Ky., 945 S.W.2d 426, 427 (1997).
4
the trial court properly appointed a guardian ad litem during
the contempt proceedings against Kiper for his failure to pay
child support.
But once those matters were resolved and only
his visitation motion remained pending, the trial court properly
discharged the guardian.
We are more concerned that the commissioner entered
his findings without conducting a hearing or affording Kiper an
opportunity to be heard.2
Any deficiency, however, did not
affect his substantial rights.
Kiper did not seek to exercise
visitation rights on his own behalf, but asked that his sisters
be allowed to exercise visitation for him.
only for visitation with a parent.
KRS 403.320 provides
While grandparents and other
non-parents may be granted visitation under certain
circumstances,3 visitation rights cannot be exercised by a nonparent on a parent’s behalf.
Consequently, the trial court was
not obligated to grant Kiper’s request to allow his sisters to
exercise visitation with R.K. on his behalf.
2
See Hornback v. Hornback, Ky. App., 636 S.W.2d 24 (1982).
3
See KRS 405.021 and Simpson v. Simpson, Ky., 586 S.W.2d 33, 35
(1979) (“KRS 403.320 does not prohibit the grant of visitation
to nonparents who stand in loco parentis and are
jurisdictionally capable of litigating custody. It merely
guarantees that a non-custodial natural parent will not be
denied visitation privileges unless it would seriously endanger
the child. … A trial court as an incident to custody
determination may grant visitation to such nonparents if it is
in the best interest of the child.”).
5
In his objections to the commissioner’s report, Kiper
requested that the court require Pharris to arrange visits with
R.K. at his prison.
However, the only motion before the trial
court at that time was Kiper’s motion that his sisters exercise
visitation with R.K. on his behalf.
While Kiper is free to make
a motion for personal visitation with R.K., the trial court did
not abuse its discretion by declining to consider his belated
non-motion attempt to seek personal visitation.
Accordingly, the order of the Ohio Circuit Court
denying Kiper’s motion for visitation is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Benjamin A. Kiper, pro se
Green River Correctional
Complex
Central City, Kentucky
Claire Russell Injeian
Bowling Green, Kentucky
6
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