AARON JEROME TUCKER v. DONNA FROST AND TOM FROST
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RENDERED: DECEMBER 7, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001054-ME
AARON JEROME TUCKER
v.
APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 06-CI-00230
DONNA FROST AND TOM FROST
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; HOWARD,1 JUDGE; GUIDUGLI,2 SENIOR
JUDGE.
COMBS, CHIEF JUDGE: Aaron Jerome Tucker appeals from orders of the McCreary
Circuit Court that awarded sole custody of his daughter, CSDT,3 to her maternal great1
Judge Howard concurred in this opinion prior to Judge Michael Caperton being sworn in on
December 7, 2007, as Judge of the Third Appellate District, Division 1. Release of this opinion
was delayed by administrative handling.
2
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
3
Because the child is a minor, we use her initials in order to protect her privacy.
grandparents, Tom and Donna Frost. After our review, we affirm in part and vacate and
remand in part.
CSDT was born on March 18, 1996, to Tucker and Deborah Warman, a
granddaughter of the Frosts. Tucker and Warman were never married and separated
close to the time of CSDT's birth. CSDT initially resided with Warman and her husband,
Brian, but she moved in with the Frosts sometime in 2000 or 2001. Although CSDT
visited with Tucker on occasion, those visits were somewhat sporadic in nature. He did
spend a number of birthdays and holidays with her. Warman died unexpectedly on
March 29, 2006. Shortly after Warman's death and just after the end of CSDT's school
year, Tucker visited the Frosts' home. He told them that he wanted to take CSDT to
dinner. Instead, he took her to his home in Scott County, Tennessee, with the apparent
intent to keep her there permanently.
On June 1, 2006, the Frosts filed a petition for custody of CSDT in the
McCreary Circuit Court. The petition alleged that the Frosts had been CSDT's de facto
custodians for more than five years and that Tucker was an unfit parent who had had
merely minimal contact with CSDT since her birth. On June 12, 2006, Tucker filed a
response challenging the allegations in the Frosts' petition and asking for sole custody of
CSDT. On June 16, 2006, the Frosts filed a motion seeking temporary custody of CSDT.
The trial court granted this motion in a temporary order entered on June 26, 2006,
directing that CSDT be returned to the Frosts' custody. Tucker was granted visitation
with CSDT on every other weekend. He subsequently filed a motion asking the court to
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alter, amend, or vacate this temporary custody order, arguing that the court failed to
comply with the provisions of Kentucky Revised Statutes (KRS) 403.270 and KRS
403.280 in reaching its decision. The court denied the motion.
On December 4, 2006, a permanent custody hearing was held during which
extensive testimony and evidence were presented concerning CSDT's living
arrangements and Tucker's prior involvement with the child. On February 8, 2007, the
trial court entered findings of fact, conclusions of law, and a decree of custody awarding
sole custody of CSDT to the Frosts. The final custody decree provided as follows:
FINDINGS OF FACT
1. The Petitioners, Donna and Tom Frost are the
maternal great-grandparents of [CSDT], a minor, whose date
of birth is March 18, 1996.
2. The Respondent, Aaron Jerome Tucker, is the
natural father of [CSDT]. Paternity was determined by a
DNA test, and a copy of same was attached to the Petition.
3. Deborah Warman was the natural mother of
[CSDT]; she died on March 29, 2006.
4. [CSDT] has resided primarily with the Petitioners
since the year 2001.
5. The Petitioners have been [CSDT's] primary
caregivers since 2001, and have also been her primary
financial providers.
6. The Respondent has had sporadic contact with the
child since her birth.
7. The Petitioners were granted temporary custody of
the child by this Court in an Order dated June 26, 2006.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, the Court
makes the following Conclusions of Law:
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1. The Petitioners have established by clear and
convincing evidence in accordance with KRS 403.270 that
they are the de facto custodians of [CSDT];
2. The Petitioners have established that it would be in
the best interests of [CSDT] for the Petitioners to be granted
custody; and
3. The Petitioners are entitled to the entry of a Decree
granting Petitioners sole custody of [CSDT].
DECREE
Based upon the foregoing Findings of Fact and
Conclusions of Law, the Court issues the following Decree:
The Petitioners are hereby granted the sole care,
custody, and control of [CSDT], whose date of birth is March
18, 2006. The Respondent shall be granted visitation as
described in the temporary Order issued by this Court on June
26, 2006.
This is a final and appealable Order and there is no just
cause for delay.
Tucker subsequently filed a motion on February 16, 2007, for more specific
findings as well as a motion to alter, amend, or vacate the trial court's February 8 order.
On April 25, 2007, the court entered supplemental findings and an order that read as
follows:
The Petitioners, Donna and Tom Frost are the maternal
great-grandparents of [CSDT], a minor, whose date of birth is
March 18, 1996.
The Respondent, Aaron Jerome Tucker, is the natural
father of [CSDT]. Paternity was determined by a DNA test,
and a copy of same was attached to the Petition.
Deborah Warman was the natural mother of [CSDT];
she died on March 29, 2006.
This Court finds from the evidence that the child
[CSDT] moved her belongings from her mother's house to the
home of the Petitioners Donna Frost and her husband Tom in
2001. She clearly lived with them until the Respondent took
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her to Tennessee for a visit and did not return her until
Ordered to do so by this Court.
The evidence is unrefuted that Donna and Tom
provided her clothing, food, school needs and her allowance.
Though there was some evidence that the Respondent
paid some child support to the child's mother, Petitioners did
not receive any of this money.
Further evidence showed that the Petitioners discipline
the child as well. They provided her with her own room. She
caught the school bus at Donna and Tom's and got off the bus
at Donna and Tom's. If she wanted to go somewhere she
asked the Petitioners for permission. Petitioners would
discipline her by taking away TV and phone privileges.
Petitioners also take her to the doctor. [CSDT] has been
going to school in McCreary County. She has developed a
network of friends in her classmates. She has family support
in McCreary County.
Her father only saw her sporadically over a number of
years. He now wants her to leave everything she has known
all her life and go to a new and different place.
This Court does not believe it to be in the best interest
of the child to move her.
Therefore, Respondent's Motion to Alter, Amend or
Vacate the previous Court Judgment is OVERRULED.
This appeal followed.
Tucker first challenges the temporary custody order. He argues that the
court erred in failing to conduct a hearing on the Frosts' motion for temporary custody as
required by KRS 403.280 and in failing to make the findings required by KRS 403.270
concerning CSDT's best interests. KRS 403.280(1) provides:
A party to a custody proceeding may move for a temporary
custody order. The motion must be supported by an affidavit
as provided in KRS 403.350. The court may award
temporary custody under the standards of KRS 403.270
after a hearing, or, if there is no objection, solely on the
basis of the affidavits.
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(Emphasis added). Thus, before granting a party's motion for temporary custody in a
contested proceeding, a court must hold a hearing to consider the criteria of KRS
403.270. Although the trial court failed to comply with these requirements with respect
to the temporary order, that order was later replaced with a permanent custody order.
Gladish v. Gladish, 741 S.W.2d 658, 661-62 (Ky.App. 1987). “[U]nder our standard of
review, we cannot set aside the final custody award because of irregularities in the
temporary custody phase of the litigation.” Id. at 662. If Tucker had wanted immediate
relief from the court's temporary order, the proper course of action would have been to
file a petition for a writ of prohibition with this court. See id. at 661. Since he did not,
we may consider only the arguments made with respect to the trial court's subsequent
order as to permanent custody.
With respect to that order, Tucker first argues that the Frosts failed to prove
that they were CSDT's primary caregivers and financial supporters for one year or more;
therefore, they failed to show by clear and convincing evidence that they were her de
facto custodians for purposes of KRS 403.270(1)(a). Acknowledging that the Frosts
provided a great deal of care for CSDT, Tucker contends that they did so in conjunction
with her mother. Therefore, he believes that they failed to establish that they were the
primary caregivers and financial supporters of CSDT as required by KRS 403.270(1)(a).
That statute provides 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
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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 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.
According to the statute, in order for the Frosts to be considered CSDT's de facto
custodians, the trial court was required to find by “clear and convincing evidence” that
they were “the primary caregiver for, and financial supporter of, a child who has resided
with [them] for a period of ... one (1) year or more” since CSDT is older than three (3)
years of age. Id. Case law has construed the statute as requiring putative de facto
custodians to demonstrate “not only that they had been the primary caregiver for the child
but also the primary financial supporter of the child in order to prove de facto custodian
status.” Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 798 (Ky.App.
2001).
In reviewing a trial court's decision in a custody case, we are governed by a
stringent standard and may set aside the court's findings of fact only if those findings are
clearly erroneous ( i.e., unsupported by substantial evidence). Allen v. Devine, 178
S.W.3d 517, 523 (Ky.App. 2005); see also Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003). Substantial evidence is defined as evidence that “has sufficient probative value to
induce conviction in the minds of reasonable men.” Moore, 110 S.W.3d at 354, quoting
BLACK'S LAW DICTIONARY 580 (7th ed. 1999) and Blankenship v. Lloyd
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Blankenship Coal Company, Inc., 463 S.W.2d 62, 64 (Ky. 1970). Even if we were to
dispute the correctness of the trial court's findings, we are not permitted to reverse the
court if those findings are supported by substantial evidence. Id., quoting 7 KURT A.
PHILIPPS, JR., KENTUCKY PRACTICE, RULES OF CIVIL PROCEDURE
ANNOTATED, Rule 52.01, comment 8 (5th ed. West Group 1995).
After a trial court makes its findings of fact, it is required to apply the law
to those facts. Our review of its application of the law to the facts as found is governed
by a de novo standard. Allen, 178 S.W.3d at 524. Even under the de novo standard, we
may not reverse the trial court unless it has committed an abuse of its broad discretion.
Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky.App. 2002); Allen, 178 S.W.3d at 524.
“The test for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
Our review of the record reveals that the trial court's findings of fact are
supported by substantial evidence and that they support the court's ultimate conclusion
that the Frosts are the de facto custodians of CSDT. Multiple witnesses testified that
CSDT spent almost every night with the Frosts after moving in with them. Some
evidence was offered to refute this testimony; however, issues of witness credibility and
the weight of the evidence are left to the exclusive province of the trial court. See CR
52.01; Moore, 110 S.W.3d at 354. There was also testimony that the Frosts provided the
vast majority of CSDT's food, clothing, discipline, and financial support. Tucker argues
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that the Frosts failed to produce financial records supporting their testimony. However,
this argument goes to the weight of the evidence and remained properly a matter for the
trial court to determine. We also note that while Tucker did pay child support to CSDT's
mother after CSDT moved in with the Frosts, it appears that none of this support was
ever given to the Frosts. It is correct that evidence was introduced reflecting that CSDT's
mother handled some aspects of her education and medical care -- and that Tucker
purchased clothing and other items for CSDT on occasion. Nonetheless, these facts do
not refute the trial court's conclusion that the Frosts were CSDT's primary caretakers and
financial supporters. Primary does not equate with sole. Thus, substantial evidence was
presented to support the trial court's conclusion that the Frosts were CSDT's de facto
custodians.
Next, the court was obligated to render a custody decision based upon the
best interests of the child as set forth by KRS 403.270(2). Because the Frosts were found
to be CSDT's de facto custodians, they were entitled to the same standing afforded to
Tucker under KRS 403.270 and were required to receive equal consideration in the trial
court's custody determination. KRS 403.270(1)(b). It appears from the record that the
court complied with these requirements. KRS 403.270(2) provides as follows:
The court shall determine custody in accordance with the best
interests of the child and equal consideration shall be given to
each parent and to any de facto custodian. The court shall
consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de
facto custodian, as to his custody;
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(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his
parent or parents, his siblings, and any other person who may
significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and
community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as
defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured,
and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with
a de facto custodian; and
(i) The circumstances under which the child was placed or
allowed to remain in the custody of a de facto custodian,
including whether the parent now seeking custody was
previously prevented from doing so as a result of domestic
violence as defined in KRS 403.720 and whether the child
was placed with a de facto custodian to allow the parent now
seeking custody to seek employment, work, or attend school.
Tucker contends that the trial court based its decision as to best interests on
only one of the factors enumerated in KRS 403.270(2) - KRS 403.270(2)(d): “[t]he
child's adjustment to his home, school, and community....” Therefore, he argues that
reversal is required. We disagree. Undoubtedly, an ideal order would have contained
factual findings specifically referencing and addressing each portion of KRS 403.270(2).
However, the court was not required to do so as courts are only obligated to consider the
factors set forth in that provision in their decision-making. See McFarland v.
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McFarland, 804 S.W.2d 17, 18 (Ky.App. 1991). After reviewing the record, we
conclude that the court's orders clearly reflect that it carefully pondered and considered
all of the elements of KRS 403.270(2). For example, the parties expressed their wishes
as to who should have custody of CSDT – which is a factor under KRS 403.270(2)(a)).
The court also interviewed CSDT about her own wishes as to who should be her
custodian. She expressed her desire to live with the Frosts – another critical criterion
under KRS 403.270(2)(b). We are satisfied from the record that the court's findings of
fact also clearly reflect consideration of KRS 403.270(2)(c), (d), (g), and (i). Therefore,
regardless of an explicit recitation of each factor, we are persuaded that the trial court
gave proper consideration to all of the elements set forth in KRS 403.270(2) in reaching
its decision as to the best interests of CSDT.
We are also satisfied that the trial court did not err in awarding sole custody
of CSDT to the Frosts pursuant to the standard of the best interests of the child. Ample
evidence was presented supporting this decision. CSDT enjoyed an established home
and relationship with the Frosts and expressed her clear preference that she remain in
their custody. Although Tucker persuasively presented evidence and arguments that
might have supported a different decision, we nevertheless cannot decree that the trial
court's ultimate determination was erroneous based on the standards governing our
review.
Tucker last contends that the trial court did not give proper consideration to
the question of visitation because it failed to explain why it neglected to provide a
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visitation schedule for holidays, birthdays, and summer. When a party requests specific
findings with respect to visitation, a court is required to make “a de novo determination
of what amount of visitation is appropriate, and enter a visitation order accordingly.”
Drury v. Drury, 32 S.W.3d 521, 525 (Ky.App. 2000). KRS 403.320(1) provides:
[u]pon request of either party, the court shall issue orders
which are specific as to the frequency, timing, duration,
conditions, and method of scheduling visitation and which
reflect the development age of the child.
We agree that Tucker made an adequate request for specific rulings on the question of
holiday, birthday, and summer visitation in his motion of February 16, 2006, asking for
specific findings. Consequently, we vacate and remand solely that portion of the court's
order as to the visitation issue and direct that it make specific findings as requested by
Tucker.
The decision of the McCreary Circuit Court is affirmed in part and is
vacated and remanded in part for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Erin M. Butcher
London, Kentucky
Joseph B. Venters
Somerset, Kentucky
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