WANDA CALDWELL AND FRANK CALDWELL v. NOAH KEITH MAY AND SHARON ROSE MAY
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RENDERED:
OCTOBER 21, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-000532-ME
WANDA CALDWELL
AND FRANK CALDWELL
APPELLANTS
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 04-CI-00557
v.
NOAH KEITH MAY
AND SHARON ROSE MAY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; POTTER, SENIOR JUDGE. 1
HENRY, JUDGE:
Frank and Wanda Caldwell appeal from a February
8, 2005 Order of the Johnson Family Court denying their petition
to be named as de facto custodians and for temporary custody of
their grandchildren.
On review, we affirm.
On December 7, 2004, the Caldwells filed a “Petition
to Be Designated De Facto Custodian and for Custody” in the
Johnson Family Court against their daughter, Sharon Rose May,
1
Senior Judge John Woods Potter, sitting as Special Judge by Assignment of
the Chief Justice pursuant to Section 110 (5)(b) of the Kentucky Constitution
and KRS 21.580.
and her husband, Noah Keith May.
The Caldwells sought to be
named as de facto custodians, and to be given temporary and
permanent custody of, their two grandchildren: Alyssa Grace May,
born March 7, 2001, and Layton Keith May, born December 29,
2001.
The basis for the petition was that the Caldwells had
“provided the primary financial, emotional, and physical care of
the minor children” for the required period of time, as set
forth in KRS 2 403.270(1)(a).
An evidentiary hearing was conducted on February 3,
2005, and the family court issued an Order on February 8, 2005
denying the Caldwells’ petition because they “failed to
establish by clear and convincing evidence that they meet the
requisites to qualify as the de facto custodians of Alyssa and
Layton May.”
In reaching this conclusion, the family court set
forth the following “Findings of Fact”:
1.
Noah May and Sharon May are the natural parents
of minor children, Alyssa May, age four, and
Layton May, age 3.
2.
Frank and Wanda Caldwell are the parents of
Respondent, Sharon May, and the maternal
grandparents of Alyssa and Layton May.
3.
Wanda Caldwell testified that she and her husband
provided nearly exclusive care for Alyssa and
2
Kentucky Revised Statutes.
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Layton May between February 2003 and October
2004, with infrequent, weekly assistance from her
daughter, Charlotte Caldwell, and occasional
monthly visits from Sandy Crabtree.
However,
Charlotte Caldwell testified that she was at the
home of Wanda Caldwell daily, with few
exceptions, and provided daily assistance in
caring for the children.
Sandy Crabtree, friend
of the family, testified that she cared for
Layton almost five or six days each week while
Sharon May worked.
4.
Between February 2003 and October 2004, the
Respondents were living separate and apart and
Sharon May had custody of Alyssa and Layton May.
5.
Between approximately February 2003 and July
2003, Sharon, Alyssa, and Layton May lived at the
home of Frank and Wanda Caldwell.
During July
2003, Sharon and her two children shared an
apartment.
6.
Between February 2003 and October 2004, numerous
parties provided financial assistance for the
care of Alyssa and Layton May, including, but not
limited to, Frank and Wanda Caldwell, Sharon May,
and the Commonwealth of Kentucky.
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7.
Between February 2003 and October 2004, numerous
persons provided for the care of Alyssa and
Layton May, including, but not limited to, Sharon
May, Charlotte Caldwell, Sandy Crabtree, and
Frank and Wanda Caldwell.
The amount of care
contributed by Frank and Wanda Caldwell did not
exceed that provided by any other persons.
8.
Since November 2004, Alyssa and Layton May have
lived with their natural parents, Sharon and Noah
May.
The maternal grandparents have visited the
children every other weekend since Christmas.
On March 9, 2005, the Caldwells filed a “Notice of
Appeal” challenging the family court’s decision.
On appeal,
they contend that: (1) the family court erred in admitting the
testimony of Sandy Crabtree at the evidentiary hearing; and (2)
the family court erred in failing to recognize them as the de
facto custodians of Alyssa and Layton May.
We first address the Caldwells’ contention that the
family court erred in allowing Sandy Crabtree to testify at the
evidentiary hearing.
They objected to Crabtree’s testimony
because she purportedly had not been named as a possible witness
in the Mays’ answers to interrogatories, and her testimony was
therefore an unfair surprise.
The Mays indicate in their brief,
however, that the Caldwells actually included Crabtree on their
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own witness list, and that they should have known of the
likelihood that she would testify because of her friendship with
Wanda and her appearance in court on the day of the evidentiary
hearing. 3
It is well-established that decisions as to the
admission of evidence are left soundly to the discretion of the
trial court and will not be reversed absent a showing of an
abuse of discretion.
Welsh v. Galen of Virginia, Inc., 128
S.W.3d 41, 51 (Ky.App. 2001) (Citation omitted).
Moreover, and
of particular relevance in this case, “the question of whether
one party has put another at an unfair disadvantage through
pretrial nondisclosures must be addressed to the sound
discretion of the trial court.”
Collins v. Galbraith, 494
S.W.2d 527, 530 (Ky. 1973).
Here, the record does not contain the interrogatory
answers in question, so we are unable to definitively determine
whether Crabtree was actually disclosed as a witness by the
Caldwells, as the Mays argue.
We note, however, that there is
no argument by the Caldwells that this is not the case.
We also
note that in Collins, supra, the Kentucky Supreme Court, in
denying relief, found it significant that the party complaining
3
The Mays originally attempted to include these discovery answers as an
Appendix to their brief to show that Crabtree was disclosed as a witness by
the Caldwells, but as these items were not included in the record on appeal,
the Appendix was stricken in a July 14, 2005 Order and is unavailable for our
consideration.
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about the testimony of two witnesses whose names were not given
in pre-trial disclosures failed to seek a continuance or recess
on the grounds of unfair surprise or to conduct further
investigation based upon what the witnesses said.
Id.
In
reviewing the record, we see that the Caldwells similarly failed
to seek this type of relief.
The Supreme Court also deemed it
important that no suggestion of bad faith was made by the
complaining party.
Id.
Again, we see that no such claim is
made here by the Caldwells.
Accordingly, given these facts, we
are not inclined to find that the family court abused its
considerable discretion in admitting the testimony in question.
We next turn to the Caldwells’ contention that the
family court erred in failing to designate them as the de facto
custodians of Alyssa and Layton May.
In custody matters tried
without a jury, the family court’s “[f]indings of fact shall not
be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses."
CR 52.01; Sherfey v. Sherfey, 74
S.W.3d 777, 782 (Ky.App. 2002) (Citations omitted).
“A factual
finding is not clearly erroneous if it is supported by
substantial evidence.”
omitted).
Sherfey, 74 S.W.3d at 782 (Citations
“Substantial evidence” is “evidence of substance and
relevant consequence sufficient to induce conviction in the
minds of reasonable people.”
Id. (Citations omitted).
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“After a
trial court makes the required findings of fact, it must then
apply the law to those facts.
The resulting custody award as
determined by the trial court will not be disturbed unless it
constitutes an abuse of discretion.”
omitted).
Id. at 782-83. (Citations
“Abuse of discretion in relation to the exercise of
judicial power implies arbitrary action or capricious
disposition under the circumstances, at least an unreasonable
and unfair decision.”
Id. at 783 (Citation omitted).
exercise of discretion must be legally sound.”
“The
Id. (Citation
omitted).
After reviewing the record, we believe that the family
court’s findings of fact are supported by substantial evidence,
and that its application of the law to those facts does not
constitute an abuse of discretion.
KRS 403.270(1)(a) sets forth
the statutory standards that a person must meet in order to be
named as a “de facto custodian.”
That provision reads as
follows:
As used in this chapter and KRS 405.020,
unless the context requires otherwise, "de
facto custodian" means a person who has been
shown by clear and convincing evidence to
have been the primary caregiver for, and
financial supporter of, a child who has
resided with the person for a period of six
(6) months or more if the child is under
three (3) years of age and for a period of
one (1) year or more if the child is three
(3) years of age or older or has been placed
by the Department for Community Based
Services. Any period of time after a legal
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proceeding has been commenced by a parent
seeking to regain custody of the child shall
not be included in determining whether the
child has resided with the person for the
required minimum period.
As further stated in KRS 403.270(1)(b): “A person
shall not be a de facto custodian until a court determines by
clear and convincing evidence that the person meets the
definition of de facto custodian established in paragraph (a) of
this subsection.”
This means that a person claiming this status
must demonstrate that he or she is the primary caregiver for,
and the primary financial supporter of the child(ren) in
question.
Swiss v. Cabinet for Families and Children, 43 S.W.3d
796, 798 (Ky.App. 2001), citing KRS 403.270(1)(a).
Furthermore,
and of particular importance here, KRS 403.270(1)(a) does not
intend that multiple persons be primary caregivers.
Cawood, 63 S.W.3d 195, 198 (Ky.App. 2001).
Consalvi v.
“It is not enough
that a person provide for a child alongside the natural parent;
the statute is clear that one must literally stand in the place
of the natural parent to qualify as a de facto custodian.”
Id.
We agree with the family court’s findings of fact that
the record here reflects a situation in which multiple persons,
including the Caldwells and Sharon May, were providing care and
financial support to Alyssa and Layton May between February 2003
and October 2004.
While there is some conflict in the
testimonial record as to specifically how much time the children
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spent with particular persons each week, the question of which
version of the facts to believe is left firmly to the family
court’s discretion.
CR 52.01.
Our statutory and case law is
clear that the Caldwells were required to establish by clear and
convincing evidence that they were the primary caregivers and
the financial supporters of the children, and that they did more
than simply provide care alongside Sharon May.
supra, and Consalvi, supra.
See Swiss,
On the record before us we must
conclude that the family court did not abuse its discretion in
finding that the Caldwells failed to prove by clear and
convincing evidence that they satisfied the requisite standards
to qualify as de facto custodians.
The judgment of the Johnson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Cumbo
Inez, Kentucky
Lana Gresham
Prestonsburg, Kentucky
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