HELTSLEY (ANTHONY), ET AL. VS. FROGGE (BRIAN LEE), ET AL.
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RENDERED: JUNE 17, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001867-ME
AND
NO. 2010-CA-000049-ME
ANTHONY HELTSLEY; AND
REBECCA HELTSLEY
v.
APPELLANTS
APPEALS FROM WARREN CIRCUIT COURT
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
ACTION NO. 07-CI-00307
BRIAN LEE FROGGE, SR.;
AND SUSAN JEAN FROGGE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON AND CLAYTON, JUDGES.
ACREE, JUDGE: The primary issue on appeal is whether the Warren Family
Court properly denied de facto custodian status to a child’s grandparents. We must
also determine whether the family court properly ordered the grandparents to pay a
portion of the attorney’s fees incurred by the child’s father.1
Facts and procedure
Brian Frogge, Sr. (Father) and Susan Frogge (Mother) were married on April
24, 2001, and lived near the Kentucky-Tennessee border for most of their
marriage. A child (Child) was born to the couple on September 11, 2003. Prior to
his parents’ separation, Child’s maternal grandparents (Grandparents collectively)
provided the family significant financial support, and Mother and Child spent
lengthy periods in Grandparents’ home in Bowling Green, Kentucky, while Father
was on active military duty.
Anticipating divorce proceedings, Mother and Child moved permanently to
Grandparents’ home on January 14, 2007. Three days later, Grandparents filed a
petition alleging Child was dependent. The Warren Family Court agreed, and
Grandparents were granted temporary custody on January 22, 2007. Mother
continued to reside with Grandparents and Child.
On February 23, 2007, Mother commenced an action for dissolution of
marriage from Father. She identified Grandparents as previously having been
awarded temporary custody of Child. However, Mother’s petition sought to regain
custody of Child.2 On April 16, 2007, when Father responded to Mother’s petition,
he did so pro se. His prayer for relief in that response specifically asks the family
1
These issues were raised in two separate appeals, but have been combined for the convenience
of the parties and the Court.
2
Mother reiterated this request in her July 17, 2007 pleading entitled “Intervening Third[-]Party
Complaint in [sic] Petition for Dissolution of Marriage.”
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court to “[g]rant the Respondent joint custody, custodial care to be in favor of
Respondent . . . .”
Grandparents were permitted to intervene in that action on July 17, 2007.
They asserted they were Child’s de facto custodians and requested they be granted
permanent custody of Child.
On April 20, 2009, following several evidentiary hearings, the family court
entered an order dismissing Grandparents’ intervening petition, determining that
they were not Child’s de facto custodians and that they therefore lacked standing to
pursue custody. On October 26, 2009, the family court also ordered Grandparents
to pay Father’s attorney fees. Grandparents took timely appeals from both orders.
Standard of review
The family court’s determination that Grandparents were not de facto
custodians of Child was a conclusion of law based on facts that were uncontested.
Accordingly, our review of this decision is de novo. Laterza v. Commonwealth,
244 S.W.3d 754, 756 (Ky. App. 2008). “Under this standard, we afford no
deference to the trial court’s application of the law to the facts[.]” Id. (Citation
omitted.)
We reverse a family court’s award of attorney’s fees following a custody
dispute only when the family court abused its discretion in making the award.
Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004).
Grandparents did not satisfy the requirements of de facto custodian status
-3-
Kentucky Revised Statute(s) (KRS) 403.270(1) controls the issue of de facto
custody. Under that statute, the party claiming de facto custodian status must show
the family court “by clear and convincing evidence” that he was “the primary
caregiver for, and financial supporter of, a child who has resided with the person
for a period of . . . one (1) year or more if the child is three (3) years of age or
older[,]” as in the case sub judice. KRS 403.270(1)(a). The first step, therefore, is
determining the date the one-year period began.
Before the family court, Grandparents claimed their period of de facto
custodian care began on January 14, 2007.3 Because of the analysis undertaken by
the family court, it was not necessary for it to determine whether the Grandparents
were, in fact, “the primary caregiver” under Consalvi v. Cawood. Consalvi, 63
S.W.3d at 197-98 (emphasis in original; citation and internal quotation marks
omitted). Instead, the family court presumed Grandparents were the primary
caregivers and focused its legal analysis on the “tolling” provision of KRS
403.270(1)(a) which states: “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.”
Grandparents quoted Sherfey v. Sherfey as establishing two requirements for
application of the tolling provision. 74 S.W.3d 777 (Ky. App. 2003), overruled on
3
Although Grandparents originally claimed an earlier starting date for their caregiving,
Grandmother admitted under oath that, prior to January 14, 2007, Grandparents were not “the”
primary caregivers as required by Consalvi v. Cawood, 63 S.W.3d 195, 197-98 (Ky. App. 2001),
abrogated on other grounds by Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Grandparents
have not challenged that part of the family court’s order.
-4-
other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). “First, the
statute requires that the action be ‘commenced’ by the parent – not merely
defended. Second, the statute requires the court appearance to be an action in
which the parents seek to ‘regain custody.’” Id. at 781.4
Father argued that his actions in the divorce proceeding were sufficient
under KRS 403.270(1)(a) to defeat the Grandparents’ claim of de facto custodian
status. The family court agreed with Father.
In pertinent part, the family court’s order found that “[t]he record in this
civil dissolution proceeding shows that [Father] has been active . . . although his
participation was pro se for almost the entire first year of the pendency of this
action.” The family court cited Father’s pro se filing on September 11, 2007, of a
document he entitled “Motion Regarding Visitation and Custody” in which Father
“request[ed] the court to change” the custody and visitation orders to grant him
“joint custody w/custodial care to [Father.]” And while acknowledging that
Father’s document was procedurally defective, the family court relied on the fact
that the document “was not filed in response to anything. Rather it was an action
initiated by [Father] in an effort to regain custody.”
4
Unfortunately, in Sherfey this Court referred to “the action” whereas the statute clearly refers
only to “a legal proceeding.” We previously criticized our imprecision in the use of such
language in an unpublished opinion, Stiffey v. Curtis, 2004 WL 2486243 (Ky. App. 2004)(2004CA-000450-MR), where we said,
most plainly understood the phrase “legal proceedings” [as used in KRS
403.270(1)(a)] has a broader meaning than the technical one the Stiffeys urge.
According to Black’s Law Dictionary, “proceeding” is a word much used to
express the business done in courts. A proceeding in court is an act done by the
authority or direction of the court, express or implied. It is more comprehensive
than the word “action,” but it may include in its general sense all the steps taken
or measures adopted in the prosecution or defense of an action, including . . . all
motions made in the action.
Id. at *1.
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The family court also noted that on November 15, 2007, Father appeared in
court, again pro se, and reminded the court of his pending “motion for order of
visitation and custody.” The court responded that it would hear the custody issue
at the final hearing.
Furthermore, the family court noted that in December 2007, Father retained
counsel who filed an answer to the Grandparents’ intervening complaint,
specifically pleading that Father “objects to the award of temporary custody or
permanent custody with the [Grandparents], because [Father] desires to have
custody of his own son . . . .”
The reasoning offered by the family court is that, even under Sherfey,
“[c]ommencement of a legal proceeding to regain custody does not necessarily
require the filing of a new court case by a parent.” We agree with this statement
and further believe that Grandparents misread Sherfey.
In Sherfey, the child in question was thirteen years old and walked to his
grandparents’ home to escape the turbulent household of his parents. From June
18, 1998, until June 17, 1999, the parents did nothing whatsoever to regain
custody. Then, the parents arranged, by the clandestine efforts of a third party, to
forcibly remove the boy from his grandparents’ home and take him to a camp in
Florida. The grandparents immediately went to court and on July 17, 1999,
obtained an order granting them custody. In July 2000, one of the parents
collaterally attacked the custody order. Sherfey, 74 S.W.3d at 779-80.
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The parents argued that the grandparents’ period of de facto custodianship
was interrupted for purposes of KRS 403.270(1)(a) by: (1) the forced removal of
the boy from the grandparents, and (2) their court appearances to defend a juvenile
petition and a domestic violence action brought as a result of that forced removal.
Id. at 780. With regard to the first argument, we said the child’s “one-month stay
at [the Florida c]amp . . . did not disqualify the grandparents [because that]
nonconsensual transporting of [the child] was adjudged by the courts of Kentucky
to be an act of domestic violence – not an abandonment of support by the
grandparents.”
More to the point of the issues before us in this case, we addressed the
Sherfeys’ other argument that “a legal proceeding ha[d] been commenced by a
parent seeking to regain custody of the child[.]” KRS 403.270(1)(a). After
describing the two requirements quoted above and relied upon by Grandparents,
we made a point of demonstrating how far short of those requirements the Sherfeys
fell.
From the plain language of the statute, it is clear that [the
Sherfeys] satisfied neither of these requirements. Not
once during the two years [the child] spent with his
grandparents did [the Sherfeys] initiate a legal action to
regain custody of [their child]. In fact, it appears they
voluntarily abandoned [the child], showing little concern
for his daily well-being for nearly two years.
Accordingly, we affirm the trial court’s finding of de
facto custodianship by the grandparents.
Id. at 781. The facts of the case before us are clearly distinguishable from Sherfey.
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We conclude, as did the family court, that neither KRS 403.270(1)(a) nor
Sherfey requires a parent to file a new and separate lawsuit in order to suspend the
running of time needed to confer standing as a de facto custodian. In addition to
Father’s efforts noted by the family court, we believe others were overlooked.
Father’s response to Mother’s original petition specifically demanded
custody. “All pleadings shall be so construed as to do substantial justice.”
Kentucky Rules of Civil Procedure (CR) 8.06. Furthermore, if Mother’s demand
for custody is fairly called a claim of custody, Father’s demand is fairly called a
counterclaim. See CR 8.03 (“[T]he court on terms, if justice so requires, shall treat
the pleading as if there had been a proper designation” of a counterclaim). We see
no reason for failing to construe Father’s pro se response as Father’s
commencement of a legal proceeding to regain the custody of his child.
There also can be no doubt that when Mother filed her petition, she
commenced proceedings to regain custody of Child for herself. Even if, as is
indicated in the record, there was collusion between Mother and Grandparents
intended to result in an award of custody to Grandparents, it “was a purely
technical device, a method for evading the natural father’s superior claim to
custody ‘if suited to the trust’ as against the grand[parents], as specified in KRS
405.020(1).” Greathouse v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995).
Under these circumstances, proper application of the law mandated denying
Grandparents de facto custodian status. Mother’s petition, Father’s response, as
well as his motions, and finally his counsel’s answer to Grandparents’ intervening
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complaint all occurred prior to the date on which Grandparents might have become
de facto custodians under KRS 403.270(1).5 They were sufficient steps to justify
the family court’s ruling that Grandparents were not the primary caregivers for the
statutory period. Therefore, we affirm the family court’s April 20, 2009 order
denying Grandparents standing to proceed as Child’s de facto custodians.
The family court’s order requiring Grandparents to pay $2,500 of attorney’s fees
does not constitute manifest injustice
In an order dated October 26, 2009, the family court instructed Grandparents
to pay $2,500 to Father’s attorney. In so ruling, the family court considered an
affidavit of Father’s attorney and an invoice for the services she had provided
Father in the custody dispute. According to the invoice, Father had accumulated
more than $36,000 in attorney’s fees. Grandparents assert the family court’s
reliance upon the invoice and the award of $2,500 constituted an abuse of
discretion and was the result of denial of due process.
In response, Father has provided to this Court explanations for various
entries of the billing invoice, though he presented none of this evidence to the
family court. “Normally, matters not a part of the record will not be considered on
appeal.” Wells v. Wells, 406 S.W.2d 157, 158 (Ky. 1966). We therefore decline to
consider that portion of Father’s brief which presents new evidence regarding the
billing statement. We therefore consider only the merits of Grandparents’
arguments.
5
Again, we are presuming they were “the primary caregiver[s].” Consalvi, 63 S.W.3d at 19798.
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KRS 403.220 permits a family “court from time to time after considering the
financial resources of both parties [to] order a party to pay a reasonable amount for
the cost to the other party of maintaining or defending any proceeding under this
chapter and for attorney’s fees . . . .” KRS 403.220 (emphasis supplied).
Contrary to Grandparents’ position, it was not necessary for the family court
to conclude that Grandparents employed delay tactics to justify an award of
attorney’s fees to Father. Rather, the only factor the family court was required to
consider was the financial resources of the parties.6 Poe v. Poe, 711 S.W.2d 849,
852 (Ky. App. 1986). The mere fact that litigation was lengthy and hotly
contested, paired with consideration of the parties’ relative financial resources, is
sufficient. See Johnson v. Johnson, 204 S.W.2d 592, 594 (Ky. 1947). It was
Grandparents’ position throughout the custody dispute that Father was unable to
financially support Child, while Grandparents were capable of doing so. Given the
lengthy, contentious dispute and the evidence of the relative financial resources of
the parties, the family court’s award of attorney fees cannot be said to be an abuse
of discretion.
Grandparents next assert the invoice was partly fabricated, or at least
unreliable, and the family court should not have relied upon it to award fees. In
particular, they claim the invoice contains improper charges because some events
6
The order awarding attorney’s fees does not explicitly address the financial resources of the
parties. If, however, Grandparents believed the order was deficient for this reason, they should
have moved the Court to make additional findings, or alter or amend the order on this ground,
pursuant to Rule 52. They did not do so.
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are entered twice, some events could not possibly have been completed on the
dates listed, and some charges are simply unexplained.
These supposed inconsistencies in the invoice do not render the entire
document unreliable or the family court’s award of attorney’s fees unreasonable.
The family court ordered Grandparents to pay only a small portion of Father’s
$36,000 legal bill. Even discounting all the invoice entries to which Grandparents
object, Father’s total legal bill was, without any reasonable doubt, well over
$2,500. Additionally, the parties and their attorneys spent considerable time before
the family court judge sub judice. That judge was certainly in a position to
determine whether $2,500 was too great a sum to award. Gentry v. Gentry, 798
S.W.2d 928, 938 (Ky.1990) (A trial judge is in the best position to assess conduct
and tactics which may unnecessarily increase the amount of attorney’s fees.).
Given the nature and length of the dispute, it was reasonable for the family court to
award $2,500 in fees.
Grandparents’ last argument addressing attorney’s fees is that they
were denied due process when the family court refused to allow them to crossexamine Father’s attorney regarding the billing statement. They have cited no
caselaw to support their position. This Court has addressed this matter in the past,
and we cannot improve on the language we used then.
Our courts have established that an alleged
error may be deemed waived where an appellant fails to
cite any authority in support of the issues and arguments
advanced on appeal. [W]ithout any argument or citation
of authorities, [an appellate] [c]ourt has little or no
indication of why the assignment represents an error. It
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is not our function as an appellate court to research and
construct a party’s legal arguments, and we decline to do
so here.
Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citations
and quotation marks omitted).
Finding no abuse of discretion, we affirm the October 26, 2009 order
awarding attorney fees.
Conclusions
The Warren Family Court correctly determined Grandparents were not de
facto custodians of Child. It was not an abuse of discretion to require
Grandparents to pay $2,500 of Father’s attorney’s fees. Accordingly, we affirm
both as to Court of Appeals Action No. 2009-CA-001867 and No. 2010-CA000049.
ALL CONCUR.
BRIEFS FOR APPELLANTS AND
CROSS-APPELLEES:
BRIEFS FOR APPELLEES AND
CROSS-APPELLANTS:
Dixie R. Satterfield
Bowling Green, Kentucky
Nancy Oliver Roberts
Bowling Green, Kentucky
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