LOREN MALLORY SINGER v. MISTY MARIE PERKINS
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RENDERED:
September 19, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001989-MR
LOREN MALLORY SINGER
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 99-CI-00873
MISTY MARIE PERKINS
APPELLEE
OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND TACKETT, JUDGES.
GUIDUGLI, JUDGE.
Loren Mallory Singer (hereinafter “Singer”)
has appealed from the Hopkins Circuit Court’s September 16,
2002, order denying his motion for a change in venue and
granting grandparental visitation rights to his minor child’s
(hereinafter “Jazz”) maternal grandparents.
Having reviewed the
parties’ brief, the record and the applicable case law, we
affirm the portion of the order denying the motion to change
venue, and reverse the portion of the order regarding
grandparental visitation.
The circuit court action underlying this appeal began
with the filing of a Petition for Custody and Support on
November 29, 1999, by Misty Marie Singer (hereinafter Misty)
regarding Jazz, a minor child born out-of-wedlock to her on
January 12, 1998, in Denver, Colorado.
In her petition, Misty
requested permanent custody of Jazz, that Singer be adjudged
Jazz’s biological and legal father,1 that Singer be awarded
reasonable visitation, and that Singer pay child support and
provide medical insurance coverage.
The matter proceeded to a
hearing before a Domestic Relations Commissioner, who by Report
and Recommendation entered September 8, 2000, recommended
establishing paternity, awarding sole custody to Misty as well
as child support, and awarding visitation to Singer.
On
December 29, 2000, the circuit court approved the DRC’s Report
and Recommendation.
On August 14, 2001, Singer filed a motion pursuant to
CR 60.02 to set aside the final order, for a change in custody,
and for a modification of child support.
In support of this
motion, Singer cited Misty’s continuing relationship with
convicted felon Torre Norman (hereinafter “Norman”).
In her
deposition the previous year, Misty had testified that she had
1
Pursuant to the petition, Singer had previously acknowledged paternity upon
Jazz’s birth, but paternity had never been established by court action.
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recently ended the relationship with Norman due to his criminal
record.
However, she married Norman in January 2001, and gave
birth to his child in February 2001.
By order entered August
28, 2001, the circuit court ruled that the matter was to be
heard by the DRC.
An evidentiary hearing was then scheduled for
February 4, 2002.
Tragically, Misty passed away on October 5, 2001,
prior to the scheduled hearing date.2
The DRC held a hearing on
October 10, 2001, and entered the following Report and
Recommendation on October 24, 2001:
This matter is before the Domestic
Relations Commissioner on the Respondent’s
Motion to Assume Custody of the Minor Child,
Jazz. Attorneys for the parties and for the
parents of the Petitioner were present.
After considering the evidence presented,
after hearing the oral arguments of the
attorneys, after review of the court record,
and after careful deliberation, the
Commissioner makes the following findings of
fact, conclusions of law, and
recommendations to the Hopkins Circuit
Court.
The parties are the natural parents of
the minor child and have been engaged in
this action for legal custody of the child.
The Commissioner previously conducted a
hearing on the issue of custody and
recommended that the Petitioner be granted
sole custody of the child. The Respondent
filed exceptions to that recommendation[];
the Hopkins Circuit Court adopted the
Commissioner’s recommendations.
2
Norman strangled Misty to death in a Tennessee hotel room, and then fell to
his death while pushing her body over the room’s balcony.
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Subsequently, the Respondent filed a
Motion for Reconsideration based on newly
discovered evidence. That Motion was
referred to the Domestic Relations
Commissioner for findings of fact and
recommendations of disposition. On October
5, 2001, after the date for the hearing on
that motion was set, but prior to the actual
hearing, the Petitioner died. The
Respondent, being the child’s sole surviving
parent, requests that the Court acknowledge
his superior rights to custody of the child.
The Commissioner finds that, pursuant
to KRS 405.020(1), the Respondent is the
surviving parent of the child, that the
Respondent is suited to the trust of
custody, and that the Respondent is entitled
to the legal custody of the minor child,
Jazz. (Neither the Petitioner’s attorney
nor the grandparents’ attorney presented any
evidence to the contrary.) The Commissioner
thus recommends that the Respondent be
granted legal custody of the child.
The Commissioner further finds that the
child, at the time of the hearing, was in
the physical custody of the Petitioner’s
parents, Clarence and Celeste Perkins, and
that Mr. and Mrs. Perkins should be required
to tender the child to the Respondent’s
agent and mother, Diana Albert, on or before
6 p.m. October 10, 2001, for delivery to the
Respondent. It is so recommended.
The attorneys for the parties
acknowledge that, as the Respondent resides
in California, it might be difficult for the
child to maintain a relationship with the
Petitioner’s family. Mr. Singer has agreed
that, in order to maintain the relationship
between the child and her maternal
grandparents, he will allow the child to
visit Clarence and Celeste Perkins at
mutually agreeable times and places whenever
the child may be in the Commonwealth. The
Commissioner so recommends.
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The Commissioner further finds that the
Respondent’s continuing child support
obligation, as owed to the Petitioner,
should be terminated effective October 10,
2001. This does not alter any obligation
that the Respondent may have to the
Commonwealth of Kentucky or to any third
parties, such as childcare providers and
health insurers. It is so recommended.
The costs associated with this Motion
are assessed at $60.00 and have been paid by
the Respondent.
At the hearing, the DRC questioned whether her notation
regarding visits with the grandparents would have any binding
legal consequence, as they had not petitioned the circuit court
for grandparental visitation.
No exceptions were filed, and the
circuit court approved the Report and Recommendation on December
17, 2001.
No appeal was taken from the order approving the
DRC’s recommendations.
On July 11, 2002, Celeste and Clarence Perkins,
Misty’s parents and Jazz’s maternal grandparents, (hereinafter
“the grandparents”) filed an Ex Parte Motion for Rule,
requesting that the circuit court order Singer to show cause why
he should not be held in contempt for violating the portion of
the previous order regarding visitation.
In her affidavit
attached to the motion, Celeste Perkins stated that she believed
that Jazz was residing in McCracken County with her paternal
grandmother, Diana Albert, and that she and Singer were
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intentionally hiding the child from her.
In particular, the
grandparents wanted the circuit court to establish a specific
visitation schedule.
Singer filed a response to the grandparents’ motion on
August 6, 2002, arguing, in part, that the original order only
permitted visitation at mutually agreeable times and places, and
that there had never been a mutual agreement between him and the
grandparents regarding visitation.
Additionally, Singer filed a
motion to change venue from Hopkins Circuit Court to McCracken
Family Court, asserting that both he and Jazz currently lived in
McCracken County.
The grandparents objected to the motion to
change venue, arguing that they were solely seeking enforcement
of a prior visitation order rather than a re-litigation of the
custody action itself.
Therefore, a change in venue would be
unwarranted.
The circuit court held a hearing on the two pending
motions on August 19, 2002.
At that time, Singer, through new
counsel, continued to argue that grandparental visitation was
inappropriate and not in Jazz’s best interest, and indicated
that there were several factual issues to be decided.
Furthermore, he argued that there was never any type of mutual
agreement as to visitation.
At the close of the hearing, the
circuit court decided to enforce the original order, but not
hold Singer in contempt.
The circuit court also denied the
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motion to change venue.
On September 16, 2002, the circuit
court entered an order memorializing its bench rulings:
This matter is before the Court on a
motion by Celeste and Clarence Perkins, the
maternal grandparents of Jazz, concerning
Respondent’s failure to allow visitation
with said child and the respondent’s motion
for a change of venue. The Court being duly
and sufficiently advised orders as follows:
1.
The respondent’s motion for change
of venue is untimely. The parties
submitted to this court’s
jurisdiction by having a hearing on
the issue of grandparent visitation
before the Domestic Relations
Commissioner. It was not until Mr.
and Mrs. Perkins tried to enforce
the resulting order that the
respondent claimed that venue
should be changed. Had said motion
been brought before the Court prior
to said hearing and order, the
Court would have been more inclined
to grant the same. But as that did
not happen, said motion to change
venue is hereby DENIED.
2.
As to the issue of visitation, Mr.
and Mrs. Perkins shall be awarded
visitation with Jazz, the minor
child, once a month beginning on
Saturday at 10:00 a.m. until Sunday
evening at 4:00 p.m. It is
strongly suggested that the parties
communicate with each other to
decide upon a weekend each month
that best suits their respective
schedules, otherwise the Court will
be forced to pick a set weekend per
month. The parties shall pick up
and drop off Jazz at the
respondent’s home in Paducah.
This appeal followed.
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On appeal, Singer argues that the circuit court erred
in granting visitation to the grandparents because they were not
parties to the action and did not file a petition for
visitation.
Additionally, the circuit court did not hold an
evidentiary hearing prior to awarding visitation.
Singer also
argues that the circuit court erred in denying his motion for a
change in venue.
On the other hand, the grandparents argue that
this Court’s review is limited only to a review of the contempt
charge, and that Singer should not be permitted to collaterally
attack the validity of the order granting visitation.
Furthermore, they argue that they were not required to file a
petition or move to be substituted as parties because Singer
agreed to the visitation.
Lastly, the grandparents argue that
the circuit court did not abuse its discretion in denying the
motion for a change in venue because Singer had previously
waived venue by voluntarily submitting himself to the Hopkins
Circuit Court.
Additionally, logic and judicial economy dictate
that the judge who issued an order preside over the show cause
hearing regarding the contempt charge.
We shall first review the circuit court’s denial of
Singer’s motion to change venue.
Through this motion, Singer
was attempting to change venue from Hopkins Circuit Court to
McCracken Family Court because he and Jazz lived in McCracken
County.
The grandparents objected, and the circuit court denied
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the motion, noting that the parties had already submitted
themselves to its jurisdiction and that the motion was therefore
untimely.
KRS 452.050, regarding change in venue, provides that:
A change of venue shall be made to the
Circuit Court of the adjacent county most
convenient to the parties, their witnesses
and their attorneys, and to which there is
no valid objection. The order of change of
venue may be made subject to any equitable
terms and conditions that safety to the
rights of the parties requires and the
court, in its discretion, prescribes.
A trial court’s decision on a motion to change venue will not be
disturbed unless there was an abuse of discretion.
Big Sandy
Realty Co. v. Stansifer Motor Co., Ky., 253 S.W.2d 601 (1952).
Therefore, we shall uphold the circuit court’s decision unless
Singer can establish an abuse of discretion.
In reviewing the parties’ arguments, we agree with the
grandparents that the circuit court did not abuse its discretion
in refusing to change venue for purposes of ruling on the motion
for a rule.
The matter came before the circuit court on the
grandparents’ motion for a rule, in which they were attempting
to have a prior ruling regarding visitation enforced.
It is
logical to go before the same court for enforcement of one of
its prior orders.
Therefore, we cannot hold that the circuit
court abused its discretion in its ruling on venue.
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We shall next address the grandparental visitation
issue.
KRS 405.021(1) establishes a right to reasonable
visitation rights for grandparents, and provides in relevant
part:
“The Circuit Court may grant reasonable visitation rights
to either the paternal or maternal grandparents of a child and
issue any necessary orders to enforce the decree if it
determines that it is in the best interest of the child to do
so.”
KRS 405.021(2) requires an action for grandparental
visitation to be brought in the circuit in the county where the
child lives.
In King v. King, Ky., 828 S.W.2d 630 (1992), the
Supreme Court of Kentucky addressed grandparental visitation,
and stated that, “visitation cannot be granted until an action
is filed in Circuit Court, a hearing conducted before a judge or
commissioner, and findings of fact and conclusions of law
entered finding that the best interests of the child will be
served by granting or denying visitation.”
Id. at 632.
The matter before us is by no means a normal
grandparental visitation case.
We are aware that when the DRC
made her original Report and Recommendation, she indicated that
her notation regarding Misty’s parents being able to visit with
Jazz might not be legally binding because they had not filed any
type of petition or entered the case.
We are also aware that no
exceptions to the Report and Recommendation were filed, and that
the circuit court subsequently adopted it in full.
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Only with
difficulty can we even call the DRC’s notation regarding
visitation as an order.
However, whether or not this notation
was an order is not before us, nor is not crucial in this
appeal.
When Singer and the grandparents returned to court on
the grandparents’ motion for a rule, which was in essence a
motion to hold Singer in contempt for failing to abide by the
terms of the original visitation order, the circuit court opted
not to hold Singer in contempt and to “enforce” the visitation
order.
However, we believe that the circuit court went too far
in its enforcement.
The original visitation order indicated
that Singer would allow Jazz to visit the grandparents “at
mutually agreeable times and places whenever the child may be in
the Commonwealth of Kentucky.”
In the September 16, 2002,
order, the circuit court went much further, and in actuality
entered a new order awarding visitation to the grandparents one
weekend per month.
We find several problems with this new
order, which require reversal.
The statutory and case law is clear that grandparents
are required to petition the circuit court in the county in
which the child resides for visitation rights.
Here, the
grandparents never filed a petition in either Hopkins Circuit
Court or McCracken Family County, nor did they ever enter an
appearance in the circuit court action below.
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Even if they had
petitioned the circuit court for visitation rights, the circuit
court failed to hold an evidentiary hearing or to make any
findings of fact and conclusions of law as to Jazz’s best
interest.
Therefore, we must reverse the portion of the circuit
court’s September 16, 2002, order specifically awarding the
grandparents visitation with Jazz one time per month.
However,
this holding does not prevent the grandparents from seeking
visitation pursuant to KRS 405.021 in a properly filed action in
the county where Jazz resides.
For the foregoing reasons, the order of the Hopkins
Circuit Court is affirmed in part and reversed in part.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Anne M. Smith
Calvert City, KY
Natalie Moore White
Paducah, KY
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