DAVID STIFFEY AND DIANE STIFFEY v. CHARLOTTE CURTIS AND E. C.
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 5, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-000450-MR
DAVID STIFFEY AND DIANE STIFFEY
APPELLANTS
APPEAL FROM WARREN FAMILY COURT
HONORABLE MARGARET R. HUDDLESTON, JUDGE
ACTION NO. 03-CI-01688
v.
CHARLOTTE CURTIS AND E. C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND MINTON, JUDGES.
KNOPF, JUDGE:
David and Diane Stiffey appeal from an order of
the Warren Family Court, entered January 30, 2004, which
dismissed their petition for permanent custody of E.C.
The
Stiffeys contend that the family court misconstrued KRS 403.270
when it determined that they had not cared for E.C. long enough
to be deemed her de facto custodians.
Agreeing with the family
court’s construction of the statute, we affirm.
In September 2002, when Charlotte Curtis was
incarcerated for misdemeanors including driving under the
influence, the Warren Family Court determined that her daughter,
E.C., was dependent and neglected for the purposes of KRS
Chapters 610 and 620 and awarded temporary custody of her to the
Stiffeys.
The Stiffeys are acquaintances of Curtis and
relatives of Curtis’s roommate, who had left E.C. with them.
In
October 2003, after they had cared for E.C. for more than a
year, the Stiffeys petitioned the family court for permanent
custody.
The Stiffeys based their petition on KRS 403.270,
which provides that non-parents who supply a child’s primary
care and support for a year1 may petition the court as de facto
custodians for legal custody of the child.
The statute also
provides, however, 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
[petitioner] for the required minimum
period.2
Because Curtis had three times (twice prior to the Stiffeys’
petition and once while the petition was pending) moved the
1
The statutory period is six months if the child is under three
years of age.
2
KRS 403.270(1)(a).
2
family court in her dependency action to terminate the temporary
custody order and return E.C. to her care, the trial court ruled
that she had, for the purposes of KRS 403.270, commenced legal
proceedings seeking to regain custody, and thus had tolled the
period of the Stiffeys’ care.
When the duration of those
tollings was taken into account, the Stiffeys had not cared for
E.C. for the required minimum period.
Appealing from that ruling, the Stiffeys contend that
“a legal proceeding,” under the statute means the same thing as
“a civil action” under the rules of procedure,3 and thus may be
commenced only by the filing of a complaint and the issuance of
a summons.4
Because Curtis’s motions in the dependency case did
not commence a proceeding in this sense, the motions, the
Stiffeys argue, should not be deemed to have tolled the period
during which they provided primary care to E.C.
As the parties note, in construing statutes this Court
strives to ascertain and give effect to the intent of the
General Assembly.5
We find that intent in the plain language of
the statute if possible.6
We agree with the trial court that
most plainly understood the phrase “legal proceedings” has a
3
CR 2.
4
CR 3.
5
Sherfey v. Sherfey, Ky. App., 74 S.W.3d 777 (2002).
6
Id.
3
broader meaning than the technical one the Stiffeys urge.
According to Black’s Law Dictionary, “proceeding”
is a word much used to express the business
done in courts. A proceeding in court is an
act done by the authority or direction of
the court, express or implied. It is more
comprehensive than the word “action,” but it
may include in its general sense all the
steps taken or measures adopted in the
prosecution or defense of an action,
including . . . all motions made in the
action.7
To invoke the tolling provision of KRS 403.270, therefore,
Curtis was required to commence a proceeding--an action or a
step within an action--to regain custody of E.C.
This she did.
KRS 610.010(13) provides that the family court retains
jurisdiction over a dependency action and has authority to
terminate a temporary custody order and return the child to her
parent.
By means of her motions, Curtis commenced proceedings
under this section to regain custody of her daughter.
Sherfey v. Sherfey,8 upon which the Stiffeys rely, is
not to the contrary.
In Sherfey this Court held that the
parents’ defense of a juvenile petition and of a subsequent
domestic violence petition could be deemed neither the
commencement of a proceeding nor an attempt to regain custody
and thus did not invoke KRS 403.270(1)’s tolling provision.
7
Garner, ed., Black’s Law Dictionary 1221 (7th ed. 1999)
(citation and internal quotation marks omitted).
8
Supra.
4
This case is clearly distinguishable.
Curtis’s motions were not
merely defensive but actively sought new custody determinations
in hopes of regaining custody.
Under the rationale of Sherfey,
therefore, as well as the plain language of KRS 403.270(1),
Curtis’s motions did invoke the statute’s tolling provision and
precluded the Stiffeys’ custody claim.
The trial court did not
err by so ruling.
Nor are we persuaded that the definition of
“commencement” included in the newly adopted Uniform Child
Custody Jurisdiction and Enforcement Act9 alters this result.
Even if the new definition would have retrospective force, the
plainest reading of it limits its application to the uniform
act.
If the General Assembly intended the definition to apply
more generally to KRS Chapter 403, it would have made that
intention clear by including it among the chapter’s general
provisions.
In sum, by filing motions to terminate the Stiffeys’
temporary custody of her daughter, Curtis commenced proceedings
to regain custody and thus invoked the tolling provision of KRS
403.270(1).
Because absent the tolled periods the Stiffeys did
not have custody for the statutory minimum of one year, the
family court properly dismissed their petition for permanent
9
Kentucky Acts 2004 Chapter 133 Sections 1 to 41. Cf. KRS
403.400 et seq. Under the new uniform act, “’commencement’ means
the filing of the first pleading in a proceeding.”
5
custody.
Accordingly, we affirm the January 4, 2004, order of
the Warren Family Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank Hampton Moore, Jr.
Cole & Moore, P.S.C.
Bowling Green, Kentucky
Terry B. Boeckmann
Todd & Boeckmann
Bowling Green, Kentucky
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
