JOEL COMBS v. KATHY WAGERS
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RENDERED: JUNE 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-001982-ME
JOEL COMBS
APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 04-CI-00492
v.
KATHY WAGERS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
SCHRODER, JUDGE:
This is an appeal from an order adjudging the
child’s maternal grandmother to be de facto custodian and
awarding the grandmother and father joint custody of the child.
The father argues that the trial court erred in finding that the
grandmother was primary caregiver and primary financial
supporter of the child.
Upon review of the evidence adduced in
the case, we affirm the lower court.
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Appellant, Joel Combs, and Tara Wagers were married in
1995 and one child was born of the marriage, Katlynn Combs, born
September 9, 1995.
On July 8, 1997, Joel and Tara were divorced
by decree of dissolution which incorporated a separation
agreement.
The agreement provided that Joel and Tara would have
joint custody of Katlynn, with Tara designated as primary
residential custodian.
Further, Joel was to have visitation
with Katlynn one full week each month, as well as various other
times set forth in the agreement, and he was to pay Tara $84 a
week in child support.
After Joel and Tara divorced in Owen County, Tara and
Katlynn moved in with Tara’s mother, Kathy Wagers, in McCreary
County, when Katlynn was not quite two years old.
Joel also
moved to McCreary County after the divorce and lived there
within two miles of Katlynn for the next 7-8 years.
In October 2004, a report was made to the Cabinet for
Families and Children (CFC) that Tara was using drugs and unable
to care for Katlynn.
Subsequently, an investigation was
conducted and a petition was filed in the McCreary District
Court to remove Katlynn from Tara’s care and place her in the
custody of Kathy.
On October 25, 2004, the court entered a
temporary custody order placing Katlynn with Kathy.
Joel was
not notified of this proceeding nor contacted initially by the
social worker investigating the case.
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Upon learning of the
action, Joel filed a motion to alter, amend or vacate the
McCreary District Court order granting temporary custody to
Kathy.
Following a hearing in that court, an order was entered
awarding temporary custody of Katlynn to Kathy and Joel.
On November 17, 2004, Kathy filed a verified petition
for custody of Katlynn against Joel and Tara in the McCreary
Circuit Court.
Kathy alleged that she was the de facto
custodian of Katlynn and had been the primary caretaker of the
child for 8 years.
Tara never responded to the petition or
appeared in the case.
Joel’s response to the petition denied
that Kathy was the de facto custodian of Katlynn.
On March 23,
2005, a hearing was held on custody and whether Kathy met the
statutory criteria for de facto custodian status in KRS 403.270.
Kathy presented the testimony of four witnesses at the hearing,
including herself, and Joel presented the testimony of three
witnesses, including himself.
Katlynn, who was nine years old
at the time of the hearing, asked to speak with the court to
express her wishes regarding custody.
Thereafter, the judge
allowed Katlynn to speak to the court in chambers.
On May 16,
2005, the court entered its judgment finding Kathy to be the de
facto custodian of Katlynn and awarding Kathy and Joel joint
custody with Kathy designated as primary residential custodian.
This appeal by Joel followed.
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We shall first address Joel’s argument that the trial
court’s findings were not sufficient under KRS 403.270(1)(a).
Specifically, Joel argues that the lower court failed to make a
finding that Kathy was the primary financial supporter of
Katlynn.
We would note that Joel did not make a motion for more
specific findings under CR 52.04, so the issue of the adequacy
of the findings was waived.
(Ky.App. 1986).
Whicker v. Whicker, 711 S.W.2d 857
In any event, our review of the judgment
reveals that the trial court did make the finding that Kathy was
“the child’s primary caretaker and financial support since the
child, now age 9, was age 1.”
(Emphasis added).
Joel’s main argument is that the trial court’s finding
that Kathy was the de facto custodian of Katlynn was not
supported by substantial evidence.
A trial court’s finding of
fact in a domestic case will not be reversed unless it is
clearly erroneous.
1980).
Ghali v. Ghali, 596 S.W.2d 31 (Ky.App.
KRS 403.270(1) provides:
(a) 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
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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.
(b) A person shall not be a de facto
custodian until a court determines by
clear and convincing evidence that the
person meets the definition of de facto
custodian established in paragraph (a)
of this subsection. Once a court
determines that a person meets the
definition of de facto custodian, the
court shall give the person the same
standing in custody matters that is
given to each parent under this section
and KRS 403.280, 403.340, 403.350,
403.822, and 405.020.
The party seeking de facto custodian status has the
burden of proving such.
2004).
Vinson v. Sorrell, 136 S.W.3d 465 (Ky.
Thus, the question in the instant case is whether Kathy
proved by clear and convincing evidence that she was the primary
caregiver and financial supporter of Katlynn for a period of a
year or more.
Kathy testified that Katlynn had been living with her
since she was one year old.
According to Kathy, after Tara and
Katlynn moved in with her, Tara would come and go on a regular
basis and never spent much time in her home.
Kathy testified
that Tara essentially left Katlynn at her house, in her care, so
Tara could run around, and that Katlynn has never known any home
-5-
but hers.
Tara did not buy groceries, clothes for Katlynn, or
take Katlynn to the doctor.
Kathy testified that Katlynn
learned to walk and talk in her care, that she has been the one
to put Katlynn to bed, feed Katlynn, go to parent-teacher
conferences, read to Katlynn, is on the school sign-out sheet
(along with her other two daughters and Joel’s aunt), and is the
one who is there when Katlynn wakes up in the middle of the
night.
In addition, Kathy maintained that she is the one
responsible for taking Katlynn to the doctor when she is sick,
although she admitted that Joel had taken Katlynn to the doctor
a couple times recently.
Regarding Joel’s relationship with
Katlynn, Kathy testified that prior to this custody action, Joel
saw Katlynn very little.
Since he was granted joint custody,
she stated that Joel has visitation with Katlynn Wednesday
through Friday.
As for financial support of Katlynn, Kathy testified
that in the last eight years, she has been the one to buy
Katlynn’s food, clothes, shoes, school supplies, books, and
school pictures.
Kathy’s answers to interrogatories in the
case, which were admitted into evidence, indicated that Kathy
also paid the rent on the home Katlynn lives in, the utility
bill, for Katlynn’s haircuts, and for her toys.
Although Kathy
did not have documentary proof of the amount of money she has
expended in support of Katlynn, Kathy did offer into evidence a
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sampling of recent receipts for purchases made for Katlynn for
items such as food, clothing, toys, bedding, school supplies,
and sundries.
Additionally, Kathy stated that she has paid for
Katlynn’s medical bills and prescriptions since she lost her
medical card, even though Joel was to provide medical insurance
for Katlynn under the divorce decree.
Kathy testified that her
only source of income was $597 a month in social security
disability.
Kathy claimed that she never received any child
support from Joel until October of 2004.
It was estimated by
Kathy that she provided for 90% of Katlynn’s financial needs
over the past eight years.
Susan Parsons, Joel’s aunt who teaches at Katlynn’s
school, was called as a witness for Kathy.
She testified that
she sees Katlynn and Kathy a lot, takes Katlynn to church, and
sometimes buys gifts, clothes and school supplies for Katlynn.
According to Susan, prior to October of 2004, Joel rarely saw
Katlynn.
Susan testified that Tara has no involvement in
Katlynn’s life and that she (Susan) had not seen Tara in years.
In her opinion, Katlynn is dependent on Kathy.
Susan’s husband,
Norman Parsons, also testified for Kathy, and his testimony was
consistent with and cumulative of Susan’s testimony.
Joel testified that he had a normal father-daughter
relationship with Katlynn and saw her as often as he could.
He
testified that he saw her from 1997 to 1998 two to seven times a
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week.
Contrary to Kathy’s testimony, Joel claimed that he has
always paid his child support payments.
Joel maintained that
since 1999, child support has been taken out of his paycheck.
Prior to that, he stated that he would put a personal check or
money order made out to Tara in Kathy’s mailbox for Tara.
In
support of this claim, Joel offered into evidence cancelled
checks made out to Tara for child support from 1998-1999.
Joel
also presented documentary evidence that he had child support
deducted from his paycheck from 1999-2004 and, specifically,
that he paid child support in the amount of $5,389 in 2002,
$4,089 in 2003, and $3,384 so far in 2004.
Joel testified that
he has also given extra money to Katlynn for clothes, toys, and
shoes.
Joel stated that he has medical insurance on Katlynn
through his job, but when he offered a copy of the insurance
card to Kathy, she refused it because she wanted the original.
Barbara Combs, Joel’s ex-wife with whom he has two
other children and now lives with again, testified that Katlynn
is at their house about 3 or 4 times a week and that they take
her on family outings.
Barbara stated that she and Joel have a
joint checking account and that she wrote most of the child
support checks to Tara until an incident wherein Tara got mad
and made a scene at their house.
After that, Joel began having
the child support taken out of his paycheck to avoid having to
deal with Tara.
-8-
The next witness for Joel was Jo Watson, the social
worker with the Department of Protection and Permanency (DPP)
who was assigned to investigate Katlynn’s case.
The initial
report to DPP alleged that Tara was using drugs and that Katlynn
and her sister were living with Tara.
However, it was
determined by DPP that Tara was living with her brother and that
Katlynn was living with Kathy.
Watson further testified that
Kathy’s and Joel’s homes were both found by DPP to be
appropriate placements.
The last witness was Katlynn who spoke to the court in
chambers.
She told the judge that she wanted to visit with her
father, but she wanted to continue living with her grandma.
Katlynn stated that did not like staying all night with her dad
because she’s used to staying with her mamaw.
She also said
that she had not seen her mom in a long while and hadn’t seen
her dad very much until the custody case.
As to the question of whether Kathy proved by clear
and convincing evidence that she was the primary caregiver of
Katlynn for a year or more, we believe that Kathy easily met her
burden of proof.
Joel’s claim that Kathy simply worked
alongside Tara in helping to care for Katlynn, see Consalvi v.
Cawood, 63 S.W.3d 195 (Ky.App. 2001), was not supported by the
evidence.
The evidence established that Kathy was the one to
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provide the consistent day to day care of Katlynn, while Tara
came and went in and out Katlynn’s life.
As for the question of whether Kathy proved by clear
and convincing evidence that she was the primary financial
supporter of Katlynn, Joel argues that since he presented
undisputed evidence that he paid his child support payments,
Kathy could not have been Katlynn’s primary financial supporter.
While Joel did present evidence that he paid child support from
1998-2004, unfortunately for Joel, Kathy, and Katlynn, there was
no evidence that this money was ever put toward the support of
Katlynn.
The evidence revealed that the payments were made to
Tara during this period, and Kathy, who was Katlynn’s primary
caregiver, testified she did not begin receiving child support
from Joel until October 2004.
In our view, Kathy presented
clear and convincing evidence that she was the primary financial
supporter of Katlynn for a year or more.
For the reasons stated above, the judgment of the
McCreary Circuit Court is affirmed.
EMBERTON, SENIOR JUDGE, CONCURS.
HENRY, JUDGE, CONCURS AND FILES SEPARATE OPINION.
HENRY, JUDGE, CONCURRING:
I must agree with the
majority that nothing in KRS 403.270 prevents a finding that
Kathy Wagers proved by clear and convincing evidence that she is
a de facto custodian as defined in the statute, including having
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proved that she was the child’s primary financial supporter for
the required period of time.
I write separately because I find
it troubling that the natural father in this case paid the child
support that he was required to pay by law, to the person to
whom he was required to pay it, and yet he did not receive the
benefit of having paid it in our de facto custodian analysis.
Because it pits the rights of natural parents against those of
non-parents, the de facto custodian statute should be cautiously
applied.
I am sure that it is small comfort to the father that
he could initiate separate legal proceedings against the mother
for her misuse of thousands of dollars’ worth of child support,
presumably to support her drug habit at the expense of her
child.
Any fault, however, lies not with our reasoning or
analysis but rather with the statute itself, because it does not
specifically address this possibility.
add words to the statute.
We are not permitted to
With this said, I concur.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jane R. Butcher
Williamsburg, Kentucky
Bonnie M. Brown
Louisville, Kentucky
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