BONEVA MORRIS AND WALTER MORRIS v. KENNETH KADLE AND JESSICA KADLE, A MINOR
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RENDERED:
November 1, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000344-MR
BONEVA MORRIS
AND WALTER MORRIS
APPELLANTS
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR., JUDGE
ACTION NOS. 01-CI-00015 & 94-CI-00024
v.
KENNETH KADLE
AND JESSICA KADLE, A MINOR
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE: Boneva Morris and Walter Morris appeal from a
judgment of the Estill Circuit Court dismissing their petition
for custody of Mrs. Morris’s granddaughter and granting Kenneth
Kadle’s motion for modification of custody.1
We affirm.
Kenneth and Beverly Kadle are the parents of a child,
Jessica Kadle, who was born on May 13, 1993.
Jessica was born in
Pennsylvania but moved with her mother to her grandmother’s home
in Estill County, Kentucky, shortly after her birth.
Kenneth
thereafter instituted divorce proceedings in Pennsylvania, and
1
Mr. Morris is the child’s step-grandfather.
the court there entered a judgment divorcing the parties and
awarding custody of Jessica to Beverly.
Kenneth was awarded
visitation rights, and he has faithfully exercised such rights
despite the distance between his residence and Jessica’s
residence.
Kenneth now lives in Alexandria, Virginia, a suburb
of Washington, D.C.
Although Beverly was awarded custody of Jessica, she is
apparently not capable of taking care of her.
In fact, Mrs.
Morris alleges that Beverly “is believed to be incompetent.”
At
any rate, Jessica continues to live with the Morrises although
Beverly moved out of the household in late 1998.
The Morrises
have provided for all of Jessica’s needs since that time, and, as
found by the domestic relations commissioner, “they are her
primary care givers.”
In 2001, Mr. and Mrs. Morris filed a petition for
custody of Jessica.
As the Morrises alleged that they were the
de facto custodians of the child, their petition was filed
pursuant to KRS2 403.270.
Kenneth then filed a motion for
modification of custody in a separate action.
See KRS 403.340.
The two cases were consolidated by the court.
The domestic relations commissioner (DRC) heard the
case, and she recommended that the Morrises’ petition be
dismissed and that Kenneth’s motion for modification of custody
be granted.
Therein, the DRC found that the Morrises were not
the de facto custodians of Jessica and that there was no credible
evidence that Kenneth was unfit to have custody.
2
Kentucky Revised Statutes.
-2-
After the
Morrises filed exceptions to the DRC’s report, the trial court
overruled the exceptions and adopted the report.
On December 1,
2001, the court entered a judgment which awarded Kenneth sole
custody of Jessica and denied the Morrises’ petition for
custody.3
From that judgment, the Morrises filed this appeal.
The Morrises have raised two arguments in their appeal.
First, they argue that the trial court erred in failing to
determine that they were the de facto custodians of the child.
They assert that the trial court erroneously held that Kenneth’s
payment of child support precluded a finding that they were the
child’s primary financial supporters.
Second, they argue that
Jessica’s best interests mandated that custody be awarded to
them.
KRS 403.270(1)(a) provides in pertinent part that a “de
facto custodian” is:
[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.
KRS 403.270(1)(b) provides in pertinent part that a person who
meets the definition of de facto custodian shall be given the
same standing in custody matters that is given to each parent.
Finally, KRS 403.270(2) states that custody shall be determined
in accordance with the best interests of the child and that
3
The Morrises were awarded visitation.
-3-
“equal consideration shall be given to each parent and to any de
facto custodian.”
In order to be found to be a de facto custodian of a
child, a person must demonstrate by clear and convincing evidence
that he or she is the primary caregiver for the child and the
child’s primary financial supporter.
Swiss v. Cabinet for
Families and Children, Ky. App., 43 S.W.3d 796, 798 (2001).
In
the case sub judice, it is not disputed that the Morrises have
been the child’s primary caregivers.
However, the court found
that the Morrises did not show by clear and convincing evidence
that they were the child’s primary financial supporters.
There was evidence in the record that Kenneth paid $182
every two weeks by wage assignment as child support for Jessica.
These payments total $4,732 per year.
On the other hand, the
Morrises have not cited to any portion of the record which
indicates the amount of money that they have contributed for
Jessica’s financial support.4
Rather, they argue that the DRC
and the court erroneously determined that they were not Jessica’s
primary financial supporters “simply on the fact that Kenneth
Kadle was paying child support.”
The Morrises argued to the trial court that they
provided all of Jessica’s financial support because Kenneth’s
child support payments were used by their daughter, Beverly, for
herself and that none of the support money was turned over to
4
Mrs. Morris did testify that she spent at least $2,500
annually on clothes for Jessica and $300-$400 for lunch money at
school. She also testified that she paid all of Jessica’s
medical bills.
-4-
them to use for Jessica.
In this regard, the DRC held as
follows:
The fact that the money was not used for that
purpose, particularly where those now
claiming to have the same standing as a
parent failed to disclose that information to
Kenneth or take any action to secure those
funds for Jessica’s support, does not operate
to elevate them to a status equal to that of
Jessica’s father for purposes of a custody
action against him. It was within their
power to take action to cause the support
money to be paid to them. Failure to take
that action will not result in a finding that
Kenneth did not support Jessica or that the
Morrises were the primary financial
supporters of Jessica. The Morrises did not
show by clear and convincing evidence that
they were the primary financial supporters of
Jessica for at least one year, as required by
KRS 403.270 in order for “de facto custodian”
status to be accorded them.
We do not read the language employed by the DRC as
holding that the mere fact that the father paid child support
precludes the Morrises from being de facto custodians.
we offer no opinion on this issue.
In fact,
Rather, it appears that the
trial court correctly held that the Morrises did not meet their
burden of proving by clear and convincing evidence that they were
Jessica’s primary financial supporters.
The Morrises unsuccessfully attempted to convince the
trial court that Kenneth did not contribute to Jessica’s support
because Beverly got the money and did not use it for that
purpose.
However, Kenneth faithfully paid his child support even
though the child’s mother may not have properly applied it.
In
the face of evidence that Kenneth paid $4,732 a year for child
support, the Morrises did not meet their burden of proving by
-5-
clear and convincing evidence that they were Jessica’s primary
financial supporters.
The second argument raised by the Morrises is that it
was in Jessica’s best interest that they be awarded custody of
her.
As we have noted, KRS 403.270(2) requires courts to
determine custody in accordance with the best interests of the
child and that equal consideration be given to each parent and to
any de facto custodian.
Since the Morrises were held not to be
de facto custodians, they had no standing to assert custody under
this statute.
Finally, Kenneth argues that KRS 403.270 as it relates
to the rights of non-parents to assert custodial rights against a
parent under a best interest standard without alleging unfitness
is a violation of his constitutional rights.
In support of his
argument, Kenneth cites Troxell v. Granville, 530 U.S. 57, 120
S.Ct. 2054, 147 L.Ed 2d 49 (2000).
Our previous determinations
herein have rendered Kenneth’s argument moot.
Thus, we offer no
opinion on whether his argument has merit or whether it was
properly preserved for our review.
The judgment of the Estill Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Michael Dean
Irvine, Kentucky
Jerry W. Gilbert
Richmond, Kentucky
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