TOMMY MICHAEL LOYD AND VELLA LOYD v. JILL M. DORAN
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RENDERED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002460-ME
TOMMY MICHAEL LOYD AND
VELLA LOYD
APPELLANTS
APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 03-CI-00500
v.
JILL M. DORAN
APPELLEE
OPINION
VACATING AND REMANDING
WITH DIRECTIONS
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; POTTER, SENIOR JUDGE. 1
TAYLOR, JUDGE:
Tommy Michael Loyd and Vella Loyd appeal from a
November 15, 2004, order of the McCreary Circuit Court denying
their petition to be declared de facto custodians for Jeannie
Brooke Doran (Brooke) daughter of Jill Doran.
We vacate and
remand with directions.
1
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
This action was initiated on December 30, 2003, by the
Loyds filing a petition to be declared de facto custodians for
Brooke.
The Loyds alleged in their petition that in July 1995,
when Brooke was one-month old, Brooke’s mother Jill left her
with the Loyds.
The Loyds further alleged that Brooke remained
with them continuously for the next two and one-half years.
The
Loyds asserted that in 1997, Jill took Brooke and kept her for
approximately one year.
1998.
Jill returned Brooke to the Loyds in
The Loyds asserted that Brooke lived with them for the
next five years except for sporadic visits with Jill.
In April
2003, while Brooke was visiting Jill, the Cabinet for Families
and Children (Cabinet) removed all of the children in Jill’s
custody. 2
The Loyds also asserted that they had requested the
Cabinet place Brooke with them, but the request was denied
because they resided in Tennessee.
The Loyds were granted
visitation.
The Loyds’ petition to be declared de facto custodians
was referred to the domestic relations commissioner for a
hearing.
Ky. R. Civ. P. (CR) 53.03.
On June 29, 2004, the
Loyds appeared at the hearing with counsel; Jill was not present
and no one appeared on her behalf.
Following the hearing, the
commissioner prepared his report and recommendations on July 13,
2
Although the record is unclear, Jill apparently had other children before
Brooke was born. Jill’s other children are not relevant to this appeal as
the Loyds only asserted de facto custodian status as to Brooke.
-2-
2004.
The commissioner recommended that the Loyds be determined
to be the de facto custodians for Brooke and further recommended
they be awarded sole custody.
On September 23, 2004, the Loyds filed a motion
requesting the circuit court to enter an order confirming the
report of the commissioner, or in the alternative, to set a
hearing upon the “objections” filed by Jill. 3
The circuit court
conducted a hearing on October 29, 2004, at which time the court
announced its ruling from the bench.
The court noted that
following the Cabinet’s temporary removal of Brooke and her
siblings, the children had been placed back in Jill’s custody
and had remained there for several months.
The court merely
stated that Jill “is entitled to have custody of her children if
the Cabinet removed them and gave them back to her.”
On November 8, 2004, the Loyds filed a motion to
alter, amend or vacate the circuit court’s order.
On November
15, 2004, the court entered an order denying the Loyds’ petition
to be declared de facto custodians.
This appeal follows.
The Loyds contend that the circuit court erred by not
finding them to be de facto custodians under Kentucky Revised
Statutes (KRS) 403.270.
Having reviewed the record and
3
On July 26, 2004, Jill filed a handwritten note with the court stating that
she objected to the Loyds being awarded custody of Brooke. She did not
dispute the Loyds allegations regarding the factors relevant to their de
facto custodian status.
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applicable law, we are of the opinion that the circuit court
failed to make the required findings of fact.
CR 52.01 provides that “[i]n all actions tried upon
the facts without a jury . . . the court shall find the facts
specifically and state separately its conclusion of law . . . .”
The primary reason for this requirement is to provide a record
that will “show the basis of the trial judge’s decision so that
a reviewing court may readily understand the trial court’s view
of the controversy.”
(Ky. 1986).
Reichle v. Reichle, 719 S.W.2d 442, 444
It is well-established that the language of CR
52.01 is mandatory and that failing to make any findings of fact
will result in reversal.
Brown v. Shelton, 156 S.W.3d 319
(Ky.App. 2004).
In this case, the circuit court tried this matter
without a jury but failed to make any findings of fact
concerning the de facto custodian status of the Loyds in its
November 15, 2004, order.
In fact, the circuit court ignored
the recommendations of the commissioner who had conducted an
evidentiary hearing on this issue.
Pursuant to the precepts of
Brown v. Shelton, the failure of the circuit court to make
findings of fact is reversible error under CR 52.01.
Upon
remand, the circuit court is directed to reconsider its November
15, 2004, order and to make findings of fact concerning the de
facto custodian status of the Loyds under CR 52.01.
-4-
We would observe that it appears the Loyds may have
met the factors necessary to be considered de facto custodians.
It also appears that the Cabinet has once again assumed custody
of Brooke. 4
Having reviewed the videotape of the hearing, we
encourage the circuit court to carefully reconsider its order in
light of the above.
For the foregoing reasons, the order of the McCreary
Circuit Court is vacated and this cause remanded with directions
to reconsider its November 15, 2004, order and make specific
findings of fact regarding the de facto custodian status of the
Loyds.
ALL CONCUR.
BRIEF FOR APPELLANTS:
NO BRIEF FOR APPELLEE
Melinda Gillum Dalton
Gillum & Gillum
Somerset, Kentucky
4
This fact was referenced in the Loyds’ November 8, 2004, motion to alter,
amend, or vacate, which was included in the original circuit court record on
appeal.
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