CALHOUN (JERRY) VS. SELLERS (VIVIAN KEITH), ET AL.
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RENDERED: OCTOBER 9, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001311-DG
JERRY CALHOUN
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NOS. 08-XX-00002 & 08-XX-00003
VIVIAN KEITH SELLERS, AS
MOTHER OF J.C., A MINOR;
AND VIVIAN KEITH SELLERS,
AS ADMINISTRATRIX OF THE
ESTATE OF J.C., A MINOR;
VIVAN KEITH SELLERS, AS
MOTHER OF S.C., A MINOR;
AND VIVIAN KEITH SELLERS,
AS ADMINISTRATRIX OF THE
ESTATE OF S.C., A MINOR
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
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Senior Judge Michael L. Henry 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.
STUMBO, JUDGE: In February 2008, the Pulaski District Court determined that
Jerry Calhoun willfully abandoned his two minor children. Based on this finding,
it applied “Mandy Jo’s Law” (KRS 391.033 and KRS 411.137), to conclude that
he was not entitled to recover for the wrongful deaths of the two children and did
not have a right to intestate succession. Calhoun appealed to the Pulaski Circuit
Court, which affirmed. This appeal followed, in which Calhoun now argues that
he did not willfully abandon his children and that the circuit court erred in failing
to so rule. For the reasons stated below, we affirm the Order on appeal.
Appellant, Jerry Calhoun, Sr., and Appellee, Vivian Keith Sellers,
were the biological parents of minor children, Sarena Calhoun and Jerry Calhoun,
Jr. On January 22, 2006, the children died tragically at ages two and four
respectively as a result of an automobile accident. The children’s estates were
administered in Pulaski District Court. On December 5, 2007, an evidentiary
hearing was conducted for the purpose of determining whether Calhoun willfully
abandoned the children prior to their deaths pursuant to KRS 391.033 and KRS
411.137, thus precluding him from receiving any distribution.
After considering the matter, on February 19, 2008, the district court
rendered two Orders2 finding in relevant part that Calhoun had abandoned the
children by refusing to contribute to their care, maintenance and support. While
noting that Calhoun was incarcerated for much of the children’s lives, the court
stated that it had not considered Calhoun’s incarceration as a factor in concluding
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The Court rendered one Order for each estate.
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that he had abandoned the children. The court went on to find that Calhoun was
subject to a Domestic Violence Order (DVO), that the Order resulted in custody of
the children being placed with Sellers, and that Calhoun did not exercise any
opportunity to engage in supervised visitation with the children pursuant to the
terms of the custody order. And finally, the court found as not credible Calhoun’s
testimony that he provided care to and maintenance of the children based on the
court’s finding that Calhoun “is lacking in personal knowledge of basic facts and
general circumstances which a father, who provided care and maintenance as Mr.
Calhoun testified he did, would know.”
Based on these findings, the district court applied KRS 391.033 and
KRS 411.137 to conclude that Calhoun had willfully abandoned the children, had
failed to provide parental care to them for at least one year prior to their deaths,
and therefore was not entitled to recover for the wrongful deaths of the children
nor to possess a right to the intestate succession of their estates. Calhoun appealed
to the Pulaski Circuit Court, which affirmed. The circuit court applied Kimbler v.
Arms, 102 S.W.3d 517 (Ky. App. 2003), to conclude that the district court
improperly failed to consider Calhoun’s incarceration as one factor in determining
whether Calhoun abandoned the children. The circuit court went on to conclude,
however, that the district court properly determined that Calhoun had abandoned
the children for purposes of Mandy Jo’s Law. The circuit court noted that though
Calhoun had filed pro se motions beginning on November 18, 2004, seeking
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visitation of the children, the totality of the circumstances demonstrated that
Calhoun abandoned the children prior to his incarceration.3 Calhoun then sought
and received discretionary review from this Court, and this appeal followed.
Calhoun now argues that the Pulaski Circuit Court erred in concluding
that the Pulaski District Court properly determined that he had abandoned his
children and therefore was not entitled to recovery from the wrongful death
proceeds and/or the children’s estates. He maintains that Kimbler, supra, upon
which the circuit court relied in part, was not applicable to the instant facts because
prior to the children’s deaths, he tried to do “everything he possibly could” to have
visitation and interaction with the children. He also argues that KRS 391.033 and
KRS 411.137 should be applied in such a manner as to reach a determination that
he did not willfully abandon the children but was prevented from seeing them by
Sellers and the Pulaski Family Court. He also directs our attention to the fact that
he filed pro se motions while incarcerated seeking visitation of the children, which
demonstrated that he did not evince a desire to abandon them. And finally,
Calhoun contends that from the date of his incarceration in September 2003, until
the time of the children’s deaths in January 2006, he was deprived of custody by a
court of competent jurisdiction and was in substantial compliance with all court
orders. Based on this last argument, he maintains that a determination of willful
abandonment was improper. In sum, he seeks reversal of the Orders on appeal
3
These motions were never ruled upon because they were subsumed by the DVO proceeding.
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based on his contention that he did not willfully abandon the children and was in
compliance with all applicable Orders relating to the children.
We have closely examined Calhoun’s arguments and find no error in
the Pulaski Circuit Court’s Order affirming the Orders of the Pulaski District
Court. KRS 391.033 states that,
(1) A parent who has willfully abandoned the care and
maintenance of his or her child shall not have a right to
intestate succession in any part of the estate and shall not
have a right to administer the estate of the child, unless:
(a) The abandoning parent had resumed the care
and maintenance at least one (1) year prior to the
death of the child and had continued the care and
maintenance until the child’s death; or
(b) The parent had been deprived of the custody of
his or her child under an order of a court of
competent jurisdiction and the parent had
substantially complied with all orders of the court
requiring contribution to the support of the child.
(2) Any part of a decedent child’s estate prevented from
passing to a parent, under the provisions of subsection (1)
of this section, shall pass through intestate succession as
if that parent has failed to survive the decedent child.
(3) This section may be cited as Mandy Jo’s Law.
Similarly, a parent may not recover for the wrongful death of his child
if he has willfully abandoned the child. KRS 411.137 states that,
(1) A parent who has willfully abandoned the care and
maintenance of his or her child shall not have a right to
maintain a wrongful death action for that child and shall
not have a right otherwise to recover for the wrongful
death of that child, unless:
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(a) The abandoning parent had resumed the care
and maintenance at least one (1) year prior to the
death of the child and had continued the care and
maintenance until the child’s death; or
(b) The parent had been deprived of the custody of
his or her child under an order of a court of
competent jurisdiction and the parent had
substantially complied with all orders of the court
requiring contribution to the support of the child.
(2) This section may be cited as Mandy Jo’s Law.
Under Mandy Jo’s Law, then, a parent may not recover proceeds of a
child’s estate, nor proceeds of a wrongful death proceeding, if he has willfully
abandoned the child unless he resumed the care and maintenance of the child at
least one year prior to his or her death, or was deprived of custody by a court of
competent jurisdiction and substantially complied with Orders requiring
contribution to the support of the child.
Calhoun directs our attention to Kimbler, supra, which he states is the
only Kentucky case that has given an in-depth analysis of KRS 391.033 and KRS
411.137, and which he maintains is distinguishable from the instant facts in that the
abandoning party in Kimbler was not incarcerated. We cannot conclude that
Kimbler operates to demonstrate the existence of error in the district court’s
conclusions. The dispositive holding in Kimbler, and which is applicable to the
instant facts, is that there is no objective rule to determine what parental acts or
omissions constitute abandonment, but rather that any analysis under Mandy Jo’s
Law must be conducted on a case-by-case basis. “[G]enerally, abandonment is
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demonstrated by facts or circumstances that evince a settled purpose to forgo all
parental duties and relinquish all parental claims to the child.” Kimbler at 523,
quoting J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App.
1986).
The essence of the circuit court’s conclusion of law on this issue was
that 1) Calhoun abandoned his children prior to his incarceration, and 2) that
Calhoun’s motions seeking visitation made while incarcerated were insufficient to
establish he had resumed the care and maintenance at least one (1) year prior to the
death of the children for purposes of Mandy Jo’s Law. We find no error in these
conclusions. In examining these conclusions, it is helpful to consider the timeline
of events. Jerry, Jr. was born on February 14, 2001, while Calhoun was
incarcerated. Calhoun was released from incarceration on August 14, 2001, and
began living with Sellers and Jerry, Jr., until the Pulaski Circuit Court rendered a
DVO on January 22, 2003. Sarena was born on May 9, 2003, and Calhoun was
again incarcerated around September 2003, where he remained at the time of the
children’s deaths in 2006.
The record reveals that at the time of Sarena’s death in January 2006,
Calhoun had never contributed to her care, maintenance or support. Similarly, at
the time of the children’s deaths, Calhoun was approximately six months in arrears
on his child support obligation for Jerry, Jr., which was calculated prior to the time
of his incarceration in 2003. Furthermore, the district court found as not credible
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Calhoun’s testimony that he provided care and maintenance for the children. This
conclusion was based on the court’s conclusion that Calhoun lacked the personal
knowledge of basic facts and general circumstances which a father, who was
providing care and maintenance as Calhoun testified he did, would know. Calhoun
did not know the children’s favorite foods, the names of their child care providers
or their diaper sizes despite stating that he had changed “too many to count.” This
point aside, Jerry’s incarceration may be considered as one factor - though not the
deciding factor - in finding abandonment.
Calhoun also contends that he was in compliance with all court orders
for purposes of proving that he had re-established care for the children for purposes
of Mandy Jo’s Law. This claim is refuted by the record. Calhoun was ordered to
pay $180 per month in child support for Jerry, Jr. pursuant to DVO. At the time of
his incarceration, he had paid only $80 despite being employed and able to provide
for his own needs. While non-payment of child support is not by itself dispositive
of a finding of abandonment, it is a factor which may be considered. Kimbler at
523. And non-payment does demonstrate non-compliance with court orders for
purposes of Mandy Jo’s Law. Furthermore, Calhoun admitted violating the “no
contact” provision of the DVO on two occasions.
Substantial evidence exists in the record to support the circuit court’s
conclusion that the district court properly made a finding of abandonment for
purposes of Mandy Jo’s Law. In so doing, the circuit court also properly
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considered Calhoun’s incarceration as one factor in finding abandonment, and it
correctly applied the holding in Kimbler that there is no bright line rule to establish
a finding of abandonment, but rather that all of the facts must be considered on a
case-by-case basis. And lastly, while Calhoun’s reference to his pro se motions
seeking visitation made while incarcerated are compelling, it does not alter the
district court’s proper determination that Calhoun had not resumed the care and
maintenance of the children at least one year prior to their deaths nor substantially
complied with all orders requiring contribution to the support of the children. We
find no error.
For the foregoing reasons, we affirm the Order of the Pulaski Circuit
Court
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEES:
Robert E. Norfleet
Somerset, Kentucky
Bruce R. Bentley
London, Kentucky
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