CRAIG MATTHEW BAUMGARDNER v. CHARLOTTE RAE GUFFEY; AND WANDA GUFFEY
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RENDERED:
FEBRUARY 17, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002216-ME
CRAIG MATTHEW BAUMGARDNER
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 03-CI-00313
v.
CHARLOTTE RAE GUFFEY; AND
WANDA GUFFEY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MINTON, JUDGES.
BARBER, JUDGE:
Appellant, Craig Matthew Baumgardner
(Baumgardner), appeals the decision of the Wayne Circuit Court
granting custody of his minor child to the maternal grandmother,
and overruling his exceptions to the Domestic Relations
Commissioner’s Report and Recommendation.
We affirm.
The parties, Craig Matthew Baumgardner and Charlotte
Rae Guffey, are the parents of a minor son born in 1998, and
Wanda Guffey, the maternal grandmother, who was found to be the
de facto custodian of the child.
The child lived with Wanda for
most of his life.
For a one month period of time, Charlotte Rae
attempted to live in an apartment with the child by herself.
Shortly thereafter, the child was removed from the home of
Charlotte Rae by the Bourbon County Child Protective services on
January 15, 2003.
The child was returned to the home of
Appellee, Wanda, the maternal grandmother, who had provided
extensive care and support for the child since his birth.
The
child and his mother had lived with Wanda for most of his life,
having moved out shortly before Protective Services was forced
to take the child into foster care.
The child did not reside
with his father, Craig, after the parents separated in 1999.
On May 20, 2003, Craig, the father of the child, filed
a motion for custody of the child.
His motion was opposed by
Charlotte Rae, the child’s mother.
Wanda filed a motion to
intervene.
The trial court found that Wanda was the de facto
custodian of the child.
Charlotte Rae admitted, in her First
Amended Response to the custody petition, that Wanda, the
maternal grandmother, had supported and cared for the minor
child for most of his life.
After a hearing, the Domestic
Relations Commissioner found that Wanda had been the primary
financial support and primary caregiver for the child for the
required statutory period and thus should be considered the de
facto custodian.
The Domestic Relations Commissioner held a
separate hearing to determine custody of the child.
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The
Domestic Relations Commissioner found that the best interests of
the child would be served by continued custody with Wanda.
The
Craig and Charlotte Rae were granted visitation rights to the
child.
The Domestic Relations Commissioner’s recommendations
were approved by the circuit court.
Craig contends that the circuit court was in error in
finding Wanda to be the de facto custodian of the child.
KRS
403.270(1) requires that a de facto custodian must have been the
primary financial supporter of the child for the statutory
period.
He argues that he has paid monthly child support of
$256.00 since the child was born.
The bulk of these payments
were made as back child support payments incepting in March,
2002.
During the first four years of the child’s life, Craig
did not make child support payments.
Craig further contends that his payment of back and
current child support shows that Wanda was not the primary
financial custodian of the child.
Wanda testified that she did
not receive any of the child support monies paid by Craig to the
child’s mother from March, 2002, through November, 2003.
These
payments were made to Charlotte Rae, who did not have care or
custody of the child.
The record reflects that the Commonwealth
of Kentucky did not provide any financial support for the minor
child.
Neither biological parent showed that they had
contributed financial support to Wanda while she cared for the
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child prior to her being named de facto custodian in November,
2003.
It was not until October, 2004, that both Craig and
Charlotte Rae were ordered to pay Wanda support for the care of
the minor child and did so on a regular basis.
Thus, it is
uncontroverted that for at least three years Wanda was the sole
financial support of the child.
Prior child support payments, including payment of all
back child support, were given to the Charlotte Rae, who did not
provide financial support for the child.
None of this money was
received by Wanda prior to her being named de facto custodian.
Wanda testified that she has provided primary financial support
for the child since 2000.
The evidence supports her claim that
she was the sole and primary financial supporter of the child.
Swiss v. Cabinet for Families & Children, 43 S.W.3d 796, 798
(Ky.App. 2001).
From the time the child was born until a child
support order was entered on March 13, 2002, however, Craig made
no child support payments at all.
His fulfillment of the back
child support debt at a later date shows that for a period of
several years, neither he nor the Charlotte Rae was providing
any financial support for the child.
Late payment of back child
support, to an individual not providing care to the child,
cannot constitute being the primary financial support of the
child.
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Craig argues that there is no evidence in the record
showing how much Wanda has spent caring for the child.
He
asserts that he is paying the statutorily required child
support, and that this should prove that he was the primary
financial support for the child.
He does not controvert the
factual showing that he paid no support whatsoever for the child
between 1999 and 2002.
It is clear from the record that Wanda
was the only financial support for the child during this time.
The child attends school, after school care, and summer daycare.
We are mindful that food, shelter, clothing and daycare expenses
for the child greatly exceed $256.00 per month.
Craig does not
attempt to show this Court that the child support he pays
provides for the majority of the child’s financial needs.
He
has failed to prove that he pays the child’s expenses or that he
is the primary financial support of the child.
Craig argues that it was error for the trial court to
award Wanda custody of the child, over the interests of the
biological father.
He contends that the trial court was
required to prove him an unfit parent before finding the
grandmother to be the best custodial choice.
Where, as here, a
third party is found to be the de facto custodian of the child,
no showing of unfitness is required.
S.W.3d 336, 359 (Ky. 2003).
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Moore v. Asente, 110
Craig asserts that he maintained regular contact with
the child, and has an ongoing relationship with him.
The record
shows that he had no contact with the child between 1999 and
2002.
Craig contends that he could not locate the child during
those years.
Charlotte Rae placed the child with Wanda during
this time, after she was diagnosed with cancer.
The child
remained in Wanda’s home, a fixed and easily discoverable
address, for a period of years.
The child remained in the
Commonwealth of Kentucky for this entire time.
The record
reflects that Craig made only limited attempts to locate the
child, and made no attempt to request care and custody of the
child during those years.
Similarly, Craig made no attempt to
provide financial support for the child during those years.
He
contends that he has had regular visitation with the child since
2002, when a child support order was entered.
This visitation,
while appropriate, cannot constitute full care and support of
the child.
Mr. Tim Stockton, who has been providing counseling to
the child since 2003, testified that the child had an adjustment
disorder requiring stable, permanent surroundings.
He testified
that removing the child from the home of the maternal
grandmother would cause him to regress.
The social worker
charged with the child’s case testified that separation from his
grandmother and his siblings in Kentucky would be detrimental to
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his mental health and behavior.
The child lives with his
younger brother and his teenaged aunt in Wanda’s home.
The
record and evidence before this Court support the findings of
the Domestic Relations Commissioner and the rulings of the trial
court.
No reversible error is shown, and the trial court ruling
must be affirmed.
French v. Barnett, 43 S.W.3d 289, 292
(Ky.App. 2001).
Craig’s claims that the fact that the Commissioner’s
report did not make specific findings as to KRS 403.270(2)(h)
and (i) was error requiring reversal of the court’s ruling.
Wanda asserts that this omission was harmless error.
This Court
has previously held that specific findings as to each statutory
subsection are not necessary where the court’s opinion and
related rulings show the statutory elements were considered.
French v. Barnett, 43 S.W.3d 289, 291 (Ky.App. 2001).
Craig
claims that the statute providing for de facto custodians should
not be applied in his case.
constitutional.
2001).
The law finds the statute
Consalvi v. Cawood, 63 S.W.3d 195, 199 (Ky.App.
The statute was created to provide stability and care
for minor children.
This Court has held that “the basic effect
and most obvious intent of the statute is to give standing in a
present custody matter to non-parents who have assumed a
sufficiently parent-like role in the life of the child whose
custody is being addressed.”
Sullivan v. Tucker, 29 S.W.3d 805,
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807-808 (Ky.App. 2000).
in the present case.
the
The statute was applied appropriately
Based on the foregoing, the Judgment of
Wayne Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew B. Dehart
Jamestown, Kentucky
Jesse M. Stockton, Jr.
Albany, Kentucky
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