WHITE (NOW BLANKENSHIP) (DEZARAE FAITH) VS. HAWES (JOBBY LENN)
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RENDERED: MARCH 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001089-ME
&
NO. 2010-CA-001239-ME
DEZARAE FAITH WHITE
(NOW BLANKENSHIP)
v.
APPELLANT/APPELLEE
APPEALS FROM SHELBY CIRCUIT COURT
HONORABLE JOHN DAVID MYLES, JUDGE
ACTION NO. 06-CI-00021
JOBBY LENN HAWES
APPELLEE/APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
ISAAC, SENIOR JUDGE: In Case No. 2010-CA-001089-ME, Dezarae Faith
White (Now Blankenship) appeals from an order entered on May 7, 2010, granting
sole custody of her minor child to Jobby Lenn Hawes and awarding him child
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
support. She argues: (1) the trial court erred by designating Hawes as a de facto
custodian and (2) her fundamental right to parent her child was violated. In Case
No. 2010-CA-001239-ME, Hawes appeals an order entered June 23, 2010, setting
the amount of child support. He argues the trial court erred by failing to enter a
written finding explaining its reasons for refusing to allocate child care costs as
required by Kentucky Revised Statute (KRS) 403.211(6). We affirm the orders of
the trial court in both cases.
White is the mother of A.H. White was incarcerated when she gave
birth to A.H. in December 2004. White and Hawes agreed that Hawes would care
for the child during the incarceration. It is undisputed that Hawes is not the child’s
biological father, but he has continually cared for A.H. since his birth. White was
released from prison in 2006. Since that time, she has been incarcerated again and
is currently undergoing rehabilitation for drug addiction.
In January 2006, Hawes filed a petition for designation as de facto
custodian and petition for custody in the Shelby Circuit Court. The trial court held
two hearings at which both parties were represented by counsel. On March 1,
2006, the trial court entered an order designating Hawes as a de facto custodian
and awarding him temporary custody. White was awarded reasonable visitation.
In November 2008, Hawes filed a motion for permanent sole custody.
On July 14, 2009, White filed a motion for sole custody. On January 8, 2010,
Hawes filed a motion for child support. Following a hearing, the trial court entered
an order on May 7, 2010, granting sole custody to Hawes and reasonable visitation
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to White. In a subsequent order entered on June 23, 2010, the trial court imputed a
minimum wage income to White and awarded Hawes child support in the amount
of $206.27 per month retroactive to January 8, 2010. These appeals followed.
White first argues that the trial court erred by designating Hawes as a
de facto custodian. Hawes argues that White is barred from raising this issue
because she did not appeal from the March 1, 2006 order designating him de facto
custodian.
In Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008), the
Supreme Court of Kentucky stated:
Prior to entry of a decree, a court may enter temporary
custody orders pursuant to KRS 403.280, and may
determine timesharing/visitation pursuant to KRS
403.320, which may be modified whenever it is in the
child's best interests to do so. Any such decisions are
“pendente lite,” “interlocutory” or “non-final.” As we
have determined in a case that was argued with this one
and is being rendered at the same time, Frances v.
Frances, 266 S.W.3d 754, (Ky.2008), when the court is
making its final and appealable custody decree, it must
do so based on KRS 403.270, the best interests standard.
KRS 405.020(3) provides that “a person claiming to be a de facto custodian, as
defined in KRS 403.270, may petition a court for legal custody of a child. The
court shall grant legal custody to the person if the court determines that the person
meets the definition of de facto custodian and that the best interests of the child
will be served by awarding custody to the de facto custodian.” Thus, the
determination of Hawes’s status as a de facto custodian is an intermediate,
ancillary issue to the parties' custody claims. See KRS 403.270(1). The March 1,
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2006 order determined that Hawes qualified as de facto custodian, but did not
ultimately adjudicate the custody issue pursuant to the best interest factors
contained in KRS 403.270(2). The court did not resolve the custody issue until its
May 7, 2010 order, which White properly appealed. Because the March 1, 2006
order only designated Hawes as de facto custodian and did not adjudicate the
custody issue, it was by its very nature a nonappealable, interlocutory order.
Therefore, we conclude that the de facto custodian issue is properly before this
Court.
White argues that Hawes does not qualify as a de facto custodian
because she never intended to relinquish custody and that incarceration alone
cannot be used to support a finding of abandonment.
KRS 403.270 states in pertinent part:
(1) (a) 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 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.
(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. Once a
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court determines that a person meets the definition of de
facto custodian, the court shall give the person the same
standing in custody matters that is given to each parent
under this section and KRS 403.280, 403.340, 403.350,
403.822, and 405.020.
It is undisputed that Hawes satisfied the requirements of the statute with respect to
the amount of time spent as the child’s primary caretaker and financial provider.
White cites Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky.App. 2001), overruled
on other grounds by Boone v. Ballinger, 228 S.W.3d 1 (Ky.App. 2007), for the
proposition that parenting the child alongside the natural parent does not meet the
de facto custodian standard. While this is a correct statement of the holding,
Consalvi does not apply to the facts of this case. In Consalvi, this Court stated:
the statute is intended to protect someone who is the
primary provider for a minor child in the stead of a
natural parent; if the parent is not the primary caregiver,
then someone else must be. The de facto custodian
statute does not . . . intend that multiple persons be
primary caregivers. . . . 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. at 198.
In the present case, it is clear that Hawes stood in the place of White
while she was incarcerated. White admitted that Hawes was the sole financial
provider for the child and has neither challenged that he was the primary caretaker
nor alleged that she or anyone else provided primary care from the child’s birth on
December 17, 2004, until January 14, 2006. White has not cited any authority to
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support her argument that either parties’ subjective intent weighs upon the de facto
custodian analysis under KRS 403.270(1).
White also argues that incarceration alone cannot support a finding of
abandonment. See J. H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663
(Ky.App. 1985). Again, this is a correct statement of the law, but inapplicable to
the circumstances of this case. White conflates the concepts of custody
determination and termination of parental rights. J.H. simply held that
incarceration alone could not support a finding of abandonment in the context of a
termination of parental rights case. Id. Such is not the case here. The trial court
did not make a finding of abandonment, as such is not required by KRS
403.270(1), nor did it terminate White’s parental rights. We conclude that the trial
court did not err by designating Hawes as de facto custodian.
White next argues that the application of KRS 403.270(1) in these
circumstances is unconstitutional. White has not cited to the record where she
notified the Attorney General of her constitutional challenge. KRS 418.075(1)
provides, in relevant part, that “[i]n any proceeding which involves the validity of a
statute, the Attorney General of the state shall, before judgment is entered, be
served with a copy of the petition, and shall be entitled to be heard . . . .” The
Supreme Court recently held that KRS 418.075(1) does not contain an exception
for “as applied” challenges. Benet v. Commonwealth, 253 S.W.3d 528, 533 (Ky.
2008). The Court explained:
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we reject the Court of Appeals' undoubtedly wellintentioned conclusion that an appellate court may rule
on an “as applied” challenge to a statute's
constitutionality, even if a party's failure to comply with
KRS 418.075 meant that the same court could not
consider a constitutional challenge to the facial validity
of a statute. Although the Court of Appeals' novel
approach may have some superficial appeal, it cannot
withstand close scrutiny because KRS 418.075 contains
no exceptions for “as applied” challenges. When no
exceptions exist in a statute, there is a presumption that
the lack of exceptions reflects a conscious decision by the
General Assembly; and a court lacks authority to graft an
exception onto a statute by fiat. Rather, a reviewing
court must interpret a statute as written, without adding
to or subtracting from the legislative enactment.
Therefore, the Court of Appeals' statement in Sherfey that
a reviewing court has the power to review improperly
preserved “as applied” constitutional challenges must be
overruled as being inconsistent with the plain,
unambiguous language of KRS 418.075.
Id. at 532-33 (footnotes omitted). Because White failed to notify the Attorney
General of her challenge to the application of KRS 403.270(1), we cannot entertain
the claim.
Hawes argues that the trial court erred by failing to make a written
finding explaining the reason for its deviation from the requirements of KRS
403.211(6). The trial court determined that child support was calculated without
the cost of child care expenses included. The court did not specify its reason for so
finding. CR 52.04 states:
A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a
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written request for a finding on that issue or by a motion
pursuant to Rule 52.02.
Hawes did not request any additional findings as required by CR 52.04. Therefore,
the issue is waived.
White attempts to raise an additional issue in her appellee brief
regarding an alleged deficiency in the trial court’s findings concerning the
imputation of income to her. This claim is not properly before us as White has not
cross-appealed from the June 23, 2010 order. Mullins v. Bullens, 383 S.W.2d 130,
134 (Ky. 1964).
Accordingly, the orders of the Shelby Circuit Court are affirmed in
their entirety.
ALL CONCUR.
BRIEFS FOR APPELLANT/
APPELLEE WHITE:
BRIEF FOR APPELLEE/
APPELLANT HAWES:
Mark A. Wohlander
Lexington, Kentucky
Carl D. Devine
Anna Dominick
Lexington, Kentucky
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