DUSTIN R. LEHMANN AND MICHELLE L. GEORGE v. DAVID WAGONER
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RENDERED: JULY 21, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002205-MR
DUSTIN R. LEHMANN
AND MICHELLE L. GEORGE
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
ACTION NO. 97-CI-03880
v.
DAVID WAGONER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND TACKETT, JUDGES.
TACKETT, JUDGE:
Appellants, Dustin Lehmann (Lehmann) and
Michelle George (George), appeal from an order of the Fayette
Circuit Court denying their motion to reconsider a previous order
granting joint custody of a minor child, S.D.W., to them and
appellee, David Wagoner (Wagoner).
We affirm.
George is the biological mother of S.D.W., who was born
in February 1992.
birth certificate.
Wagoner is listed as S.D.W.’s father on his
Wagoner believed that he was S.D.W.’s father
and voluntarily made child support payments to George, provided
health insurance coverage for the child, and took care of the
child in his home on weekends and, often, during the week.
Some six years later, in 1997, Lehmann, who thought he
was S.D.W.’s biological father, sought blood tests.
The tests
revealed that Lehmann was the actual biological father.
Lehmann
then filed an action in Fayette Circuit Court against George
seeking to establish joint custody and visitation rights.
An
agreed order of paternity and order of child support was
subsequently entered in Fayette District Court.
That order
adjudged Lehmann to be S.D.W.’s biological father and ordered him
to pay seventy-two dollars per week in child support.
Wagoner was not a party to the original action in
circuit court.
However, he and his wife, along with Lehmann,
were granted temporary custody of S.D.W. by the Fayette Circuit
Court in January 1999.
seeking
In June 1999, Lehmann filed a motion
“physical custody” of S.D.W.
Wagoner subsequently filed
a motion to be joined as a party to the action.
The court considered these motions at a final custody
hearing held in July 1999.
The trial court subsequently issued
an order granting Wagoner’s motion to be joined as a party and,
furthermore, finding Wagoner to be the de facto custodian of
S.D.W.
The court further found that it was in S.D.W.’s best
interest to award joint custody of him to Wagoner and Lehmann,
with the child’s primary residence to be with Wagoner.
The court
found that George’s “lack of care and nurturing” of S.D.W. was
sufficient to deny an award of custody to her.
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The court denied
Lehmann’s motion to reconsider, after which Lehmann and George
filed this appeal.
On appeal, Lehmann and George argue that the trial
court erred by finding Wagoner to be S.D.W.’s de facto custodian.
This argument revolves around Kentucky Revised Statute (KRS)
403.270.
That statute provides 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 Social
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 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, 403.420, and
405.020.
(2) 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
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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;
(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.
Lehmann and George argue that the record does not
contain clear and convincing evidence showing that Wagoner met
the elements necessary to be deemed a de facto custodian.
Specifically, they argue that Wagoner did not demonstrate that
S.D.W. resided with him for a year or more, as required by KRS
403.270(1)(a).
The trial court made a specific finding that
Wagoner had met the elements necessary to be considered a de
facto custodian under KRS 403.270(1).
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Thus, Lehmann and George’s
burden on appeal is heavy as “[f]indings of fact in a domestic
relations case shall not be set aside unless clearly erroneous.”
Dull v. George, Ky. App., 982 S.W.2d 227, 230 (1998).
Furthermore, a person may have more than one residence.
See
e.g., Russell v. Hill, Ky., 256 S.W.2d 508, 509 (1953).
Finally,
although KRS 403.270 requires clear and convincing evidence to be
adduced in order for a court to find a person to be a de facto
custodian, it must be borne in mind that clear and convincing
evidence does not mean uncontradicted evidence.
See e.g.,
Janakakis-Kostun v. Janakakis, Ky. App., 6 S.W.3d 843, 850 (1999)
(quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
We cannot hold that the trial court’s finding is
clearly erroneous.
George testified that S.D.W. resided with
Wagoner at least half of the time.
S.D.W.’s teacher testified
that S.D.W. considered Wagoner’s residence to be his home.
Wagoner testified that S.D.W. lived with him more than he did
with anyone else.
Although the parties have not cited evidence
showing exactly how many days per week S.D.W. lived in Wagoner’s
home, all parties agree that the child lived with Wagoner a
significant amount of time from birth.
Although the child also
resided with George’s mother part of the time, the trial court’s
finding that the child resided with Wagoner for more than one
year is supported by substantial evidence and therefore is not
clearly erroneous.
See Janakakis, supra at 852 (“Findings of
fact are not clearly erroneous if supported by substantial
evidence.”).
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Lehmann and George’s reliance on Williams v. Phelps,
Ky. App., 961 S.W.2d 40 (1998) is misplaced.
Williams involved a
custody dispute between a child’s maternal aunt and the sister of
the child’s putative father.
The Williams court discussed how
other jurisdictions had resolved custody disputes between
nonparents, and noted that Illinois required a nonparent to “show
that the parent had relinquished legal custody of the child” in
order for the nonparent to petition for custody.
Id. at 41-42.
Lehmann and George argue that Wagoner must additionally show that
they had relinquished physical custody of S.D.W. before Wagoner
was permitted to petition for custody of the child.
Williams is distinguishable from the case at hand.
Williams was rendered prior to the amendments to KRS 403.270
which added new language concerning de facto custodians.
That
statute does not require a nonparent to show that a parent has
relinquished legal custody of a child before the nonparent can
file for custody of the child.
Furthermore, Williams involves a
custody dispute between two nonparents, whereas the case at hand
involves a dispute between S.D.W.’s parents and a nonparent,
Wagoner.
Lehmann and George argue that KRS 403.270 requires the
residency to be for a continuous one-year period but that the
trial court found that S.D.W. had cumulatively resided with
Wagoner for more than one year.
We note that the trial court did
not mention specifically in its order whether its findings were
based on a cumulative or continuous residency period.
Lehmann
and George failed to file a motion for more specific findings on
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this issue, pursuant to Kentucky Rule of Civil Procedure (CR)
52.02.
Hence, the issue is waived.
CR 52.04.
Regardless, we note that KRS 403.270 does not specify
whether the residency is to be for a continuous one-year period.
In a similar situation, the General Assembly specifically stated
that an adoption proceeding “shall not be filed until the child
has resided continuously in the home of the petitioner for at
least ninety (90) days immediately prior to the filing of the
adoption petition.”
KRS 199.470(3) (Emphasis added).
Thus, the
General Assembly could have easily inserted a continuity
requirement into KRS 403.270(3) if it had so desired.
We may not
insert a continuity requirement where none exists as we are
constrained to interpret statutes by looking to the language
utilized by the legislature and may not “breathe into the statute
that which the Legislature has not put there.”
Gateway
Construction Company v. Wallbaum, Ky., 356 S.W.2d 247, 249
(1962).
Finally, Lehmann and George argue that any time after
Lehmann filed for custody in November 1997 should not be included
in the computation of the one-year time period.
This argument is
based upon language in KRS 403.270(1)(a) stating that “[a]ny
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.”
However, Lehmann had
not previously enjoyed custody of S.D.W., meaning that his
petition for custody was not a “legal proceeding . . . commenced
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by a parent seeking to regain custody of the child. . . .”
(Emphasis added).
Furthermore, it is undisputed that S.D.W.
lived in Wagoner’s home for varying periods of time each week
since just shortly after the child’s birth.
Therefore, even if
any period of time after Lehmann’s petition was filed is excluded
from the one-year computation, the record contains substantial
evidence to support the trial court’s decision.
The “overriding consideration in any custody
determination is the best interests of the child.”
at 230.
Dull, supra
A trial court has “broad discretion in determining the
child’s best interests.”
Id.
A trial court’s findings regarding
custody actions “will not be overturned unless clearly
erroneous.”
(1993).
Basham v. Wilkins, Ky. App., 851 S.W.2d 491, 493
In considering all of the evidence presented and the
considerations set forth in KRS 403.270(2), we cannot find that
the trial court abused its discretion in awarding joint custody
of S.D.W. to Lehmann and Wagoner, with the child’s primary
residence being with Wagoner.1
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Robert F. Ristaneo
Lexington, Kentucky
Don Cetrulo
Lexington, Kentucky
1
We are aware of Wagoner’s argument that Lehmann and
George’s brief is not in compliance with CR 76.12. However,
given the vital importance of this case to the parties and the
child and Lehmann and George’s attempt to correct any errors in
their reply brief, we have considered the issues presented on
their merits.
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