CLYDE D. CLEMENTS v. STEPHANIE JEAN CLEMENTS (NOW BERNDT), MICHAEL ATWOOD, AND LYLIA ATWOOD
Annotate this Case
Download PDF
RENDERED: April 15, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001734-ME
CLYDE D. CLEMENTS
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 96-CI-00105
v.
STEPHANIE JEAN CLEMENTS (NOW BERNDT),
MICHAEL ATWOOD, AND LYLIA ATWOOD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Clyde B. Clements brings this appeal from an
April 8, 2003, Order of the Casey Circuit Court denying his
motion to modify custody of his minor child, Raven Clements.
We
affirm.
Clyde and Stephanie Jean Clements (now Berndt) were
married on July 3, 1993.
1
On October 21, 1996, the marriage was
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
dissolved by a decree of dissolution entered in the Casey
Circuit Court.
The decree provided for joint custody of Raven.
Stephanie was designated the primary residential custodian, and
Clyde was to have reasonable visitation.
Clyde was ordered to
pay child support.
Following entry of the decree, there was no activity
of record over the next four years.
filed a motion for contempt.
In October 2000, Stephanie
Therein, Stephanie alleged Clyde
had not paid child support as ordered.
Clyde then filed a
motion for a “specific visitation schedule.”
Clyde alleged he
had “not had any significant visitation or telephone contact
with the child for several months.”
On January 11, 2001, an
order was entered finding Clyde to be $110.00 in arrears in
child support but not finding him in contempt.
The order also
specifically outlined Clyde’s visitation schedule.
On January 13, 2003, Clyde filed a motion to modify
custody.
Clyde alleged that Stephanie was incarcerated and that
he should be awarded sole custody of Raven.
Stephanie’s
parents, Michael and Lylia Atwood (referred to collectively as
the Atwoods), subsequently filed a motion to intervene in the
custody action.
The Atwoods asserted they were de facto
custodians for the child pursuant to Kentucky Revised Statutes
(KRS) 403.270 and, as such, were “entitled to assert their claim
to a right of custody.”
-2-
On April 8, 2003, an order was entered adjudicating
all issues between the parties.
The Atwoods’ motion to
intervene was granted, and they were designated de facto
custodians for the child.
was denied.
The Atwoods’ motion to modify custody
Clyde’s motion to modify custody and his motion to
declare the de facto custodian statute unconstitutional as
applied to this case were also both denied.
The practical
effect of the order was that Clyde and Stephanie retained joint
custody of the child with Stephanie remaining as primary
residential custodian.2
This appeal follows.
Clyde contends the circuit court “committed an error
in failing to grant primary custody to the natural father while
granting custody and status of ‘defacto [sic] custodians’ to
maternal grandparents.”
Appellant’s Brief at 6.
Clyde’s
argument focuses upon his assertion that by the circuit court
granting the Atwoods de facto custodian status, he has been
denied his custodial rights.3
Clyde devotes three (3) pages of
his brief to this argument.
2
Stephanie appeared at the February 13, 2003, evidentiary hearing and the
circuit court’s order of April 8, 2003, reflected that she was no longer
incarcerated.
3
The gist of Clyde’s argument is that he is being penalized for not
maintaining “financial supervision” of his child support payment to
Stephanie. We interpret the court’s order to the contrary, finding that for
the 27 months prior to Clyde’s motion, the grandparents were the primary
caregivers as well as financial supporter for the child, providing moral,
religious and educational support.
-3-
We emphasize the circuit court did not grant custody
of the child to the Atwoods; rather, the court designated the
Atwoods’ de facto custodians, but denied their motion to modify
custody.
The effect of the circuit court’s order was to
maintain the status quo.
That being Stephanie and Clyde
retained joint custody of the child and Stephanie remained the
primary custodian.
As such, we view Clyde’s argument that the
circuit court erred by denying his motion to modify custody
while granting custody to the maternal grandparents to be
without merit.
Clyde contends, in the alternative, that “application
of KRS 403.270 in the present case would be unconstitutional.”4
However, Clyde fails to set forth any facts to support this
argument, nor does he present any legal authority for this
position.
We, thus, summarily reject Clyde’s alternative
argument.
For the foregoing reasons, the Order of the Casey
Circuit Court is affirmed.
ALL CONCUR.
4
Clyde does not claim that the statute is unconstitutional. This argument
would fail on its face for failure to comply with KRS 418.075 and Ky. R. Civ.
P. 24.03.
-4-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kirk A. Correll
Stanford, Kentucky
Edward D. Hays
SHEEHAN, BARNETT, HAYS, DEAN &
PENNINGTON, P.S.C.
Danville, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
