MELINDA K. JUSTICE v. DONALD E. HOUTCHENS AND COMMONWEALTH OF KENTUCKY EX REL CABINET FOR FAMILIES AND CHILDREN
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RENDERED: March 5, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002629-MR
MELINDA K. JUSTICE
(formerly Houtchens)
v.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
ACTION NO. 99-CI-00313
DONALD E. HOUTCHENS
AND
COMMONWEALTH OF KENTUCKY EX REL
CABINET FOR FAMILIES AND
CHILDREN
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING IN PART,
AND
REMANDING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MINTON, JUDGES.
BUCKINGHAM, JUDGE:
Melinda K. Justice appeals from a judgment
of the Bullitt Circuit Court awarding custody of one of her
children to her former husband, Donald E. Houtchens, Jr., the
child’s stepfather.
We vacate and remand.
Melinda and Donald were married on June 6, 1987.
Prior to their marriage, Melinda had a son, Adam Dewitt Miller,
who was born on July 30, 1986.1
After the marriage, Melinda and
Donald had a daughter, Briteny Michelle Houtchens, who was born
on July 29, 1988.
Melinda and Donald separated on March 30, 1999.
Donald filed a petition for dissolution of marriage on May 3,
1999.
On May 28, 1999, the court rendered an agreed order
allowing Donald to maintain the residential custody of both Adam
and Briteny “[p]ending a custody determination by the Court.”
Melinda was allowed visitation on alternate weekends.
Melinda filed her response to Donald’s petition on
June 11, 1999.
Therein, she sought custody of both children.
The following month, on July 30, 1999, Melinda and Donald signed
an agreement which stated that they would “share custody of the
two children.”
The agreement also provided that each parent was
to support the child in his or her custody and that each child
could choose which of the two they wanted to live with.
It does
not appear that this agreement was prepared by an attorney, and
neither attorney in the case signed it.
Further, the agreement
was neither approved by the court nor filed of record.
On February 18, 2000, the court entered a decree
dissolving the marriage.
1
On April 20, 2000, the domestic
Donald is not the natural father of Adam.
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relations commissioner (DRC) entered his report making
recommendations concerning the custody and support of the two
children.
The report noted that the parties had agreed that
Donald would have sole custody of Briteny and that Melinda had
indicated an intention to terminate her parental rights in the
child.
Therefore, the DRC recommended that Donald have custody
of Briteny.
Further, the DRC recommended that Donald be awarded
custody of Adam, his stepson.
The DRC recognized that “[i]n a
dispute between a parent and non-parent, the parent must prevail
unless there is a showing of unfitness or a showing that the
parent has voluntarily waived her superior right to custody.”
The DRC then stated that, while there were serious questions
concerning Melinda’s fitness as a parent, it would not make that
determination at that time.
Rather, the DRC found that Melinda
had voluntarily waived her superior right to custody by entering
into the July 1999 agreement, by permitting Donald to be the
exclusive caretaker for Adam for a period of nearly one year,
and by continually telling Adam that he could live with Donald
if he chose to do so.
Melinda filed exceptions to the DRC’s report on April
28, 2000.
Concerning the issue of Adam’s custody, she argued
that the DRC did not consider the best interests of the child
and that the custody award was not supported by the evidence.
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Approximately one and one-half years later, on October 16, 2001,
the circuit court entered a judgment approving and adopting the
DRC’s report.2
The court noted that “it appears that the
Respondent has abandoned both this case and the children and
that the Petitioner is a defacto custodian and the proper
custodian for both children including his step-child Adam
Miller.” [Emphasis in original.]
Melinda then filed a motion to alter, amend, or vacate
the judgment concerning Adam’s custody.
When the motion was
argued to the court, Donald moved the court for leave to amend
his amended petition.
The motion to amend was granted, and
Donald amended his petition so as to allege that he was Adam’s
de facto custodian.
The case was then referred again to the
DRC, and the DRC filed a report recommending that Melinda’s
motion to alter, amend, or vacate be denied.
This report was
entered on October 31, 2002, approximately two and one-half
years after Melinda filed her exceptions.
Finally, on November
25, 2002, the court entered an order denying Melinda’s motion to
alter, amend, or vacate.
Further, the court entered a second
2
It appears to us that the delay between the filing of the exceptions and the
ruling by the circuit court was caused by Melinda’s failure to have a
transcript of the proceedings before the DRC filed for the court’s review of
her argument that the custody award was not supported by the evidence. The
local rules of the circuit court apparently required that a transcript be
filed before the court could review that argument.
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order awarding Donald sole custody of both children.
This
appeal by Melinda followed.
The court awarded Donald custody of Adam on two
grounds.
First, custody was awarded based on a determination
that Donald was Adam’s de facto custodian.
Second, by approving
and adopting the DRC’s initial recommendations, the court
determined that Melinda had waived her superior right to Adam’s
custody.
The statutes define “de facto custodian” as follows:
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.
KRS3 403.270(1)(a).
Because Adam was three years of age or older
at the time of the custody proceedings, the statute required
Donald to show by clear and convincing evidence that he had been
Adam’s primary caregiver and financial supporter for a period of
3
Kentucky Revised Statutes.
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one year or more.
Furthermore, in computing the time period,
the period of time after the custody proceeding was commenced by
Melinda could not be included in determining whether Adam had
resided with Donald for the required minimum period of one year.
We agree with Melinda’s argument that the court
erroneously determined that Donald was Adam’s de facto
custodian.
As we have noted, Melinda and Donald separated on
March 30, 1999, and Adam was left in Donald’s care at that time.
Less than three months later, on June 11, 1999, Melinda
responded to Donald’s petition and stated that she was seeking
custody of both Adam and Briteny.
Because the time period
following Melinda’s response to Donald’s petition could not be
included in determining whether Donald had been Adam’s primary
caregiver and financial supporter for at least a one-year
period, Donald was unable to prove his status as a de facto
custodian.
Thus, the court erred in this determination.4
The second ground for awarding custody of Adam to
Donald was the court’s determination that Melinda had waived her
superior right to custody.
In her appeal of this determination,
Melinda contends that the court did not find that she was an
4
We are unpersuaded by Donald’s reliance on Sherfey v. Sherfey, Ky. App., 74
S.W.3d 777 (2002), to support his argument that he met the one-year
requirement for being Adam’s de facto custodian. While Donald contends that
Melinda never “commenced” a custody action within the meaning of KRS
403.270(1)(a), we conclude that her response to Donald’s petition on June 11,
1999, commenced the action because she stated therein that she was seeking
the custody of both children.
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unfit parent and did not find that the custody award was in
Adam’s best interests.
Further, she asserts that the court
erred in granting Donald custody on the basis that she had
agreed at one time to such an arrangement.
In Moore v. Asente, Ky., 110 S.W.3d 336 (2003), the
Kentucky Supreme Court addressed custody contests between a
parent and a nonparent in situations where the nonparent was not
a de facto custodian.
The court stated:
Custody contests between a parent and a
nonparent who does not fall within the
statutory rule on ‘de facto’ custodians are
determined under a standard requiring the
nonparent to prove that the case falls
within one of two exceptions to parental
entitlement to custody. One exception to
the parent’s superior right to custody
arises if the parent is shown to be ‘unfit’
by clear and convincing evidence. A second
exception arises if the parent has waived
his or her superior right to custody.
Id. at 359.
(1995).
See also Greathouse v. Shreve, Ky., 891 S.W.2d 387
In other words, Melinda was entitled to custody of Adam
unless Donald could prove either that she was unfit or that she
had waived her superior right to custody.
The court did not
find that Melinda was unfit, but it did find that she had waived
her superior right to custody.
Waiver must be shown by clear and convincing evidence.
Moore, 110 S.W.3d at 360.
In order to prove a waiver by a
parent of his or her superior right to custody, there must be a
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showing of an intentional or voluntary relinquishment of the
right.
Greathouse, 891 S.W.2d at 390.
“[W]hile no formal or
written waiver is required, statements and supporting
circumstances must be equivalent to an express waiver to meet
the burden of proof.”
Id. at 391.
We conclude there was clear and convincing evidence
supporting the court’s determination that Melinda had waived her
superior right to custody.
As we have noted, the DRC found that
Melinda had voluntarily waived her superior right to custody by
entering into the July 19, 1999 agreement, by permitting Donald
to be the exclusive caretaker for Adam for a period of nearly
one year, and by continually telling Adam that he could live
with Donald if he chose to do so.
The July 1999 agreement,
wherein Melinda agreed to share the custody of both children
with Donald and agreed that each child could choose who they
wanted to live with, is strong support for the court’s
determination that Melinda had waived her superior right to
Adam’s custody.
In short, we find no error in this
determination by the court.
Finally, Melinda argues that the court erroneously
awarded Donald custody of Adam without making a determination
that such an award would be in Adam’s best interests.
In
reviewing the DRC’s recommendations and the court’s orders, we
have been unable to find any reference to the award being in
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Adam’s best interests.
We agree with Melinda that the failure
of the court to address Adam’s best interests requires the
custody order to be vacated and remanded for further
proceedings.
KRS 403.270(2) requires the court to determine custody
“in accordance with the best interests of the child.”
In
Stafford v. Stafford, Ky. App., 618 S.W.2d 578, 580 (1981),
overruled on other grounds by Largent v. Largent, Ky., 643
S.W.2d 261 (1982), this court held that “in a trial without a
jury conducted pursuant to CR 52.01, the trial court is required
to find those facts which are raised in the pleadings or those
facts which are mandated to be considered by statute, whichever
the case may be.”
Because the court was required by statute to
consider Adam’s best interests and because it did not make a
specific finding in that regard, we must vacate the custody
award and remand for further proceedings.
Simply because Melinda had waived her superior right
to custody did not mean that Donald was entitled to custody.
Rather, the determination between the parent and the nonparent
rested on what was in Adam’s best interests.
As the Kentucky
Supreme Court noted in the Moore case, “if a waiver has been
shown by clear and convincing evidence, the trial court shall
determine custody between the parent and nonparent based on the
best interest of the child.”
Id. at 360.
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We vacate the award of Adam’s custody to Donald and
remand this case to the circuit court for the entry of a custody
award based upon a finding as to Adam’s best interests.5
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Timothy White
Shepherdsville, Kentucky
Mark Shouse
Shepherdsville, Kentucky
5
We note that Adam is now within months of his eighteenth birthday.
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