KELLEA ELIZABETH HAGGARD v. JAMIE LEE HAGGARD; GLENN HAGGARD; AND LENORA (KAY) HAGGARD
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RENDERED:
SEPTEMBER 1, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002016-ME
KELLEA ELIZABETH HAGGARD
v.
APPELLANT
APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 95-CI-00220
JAMIE LEE HAGGARD; GLENN
HAGGARD; AND LENORA (KAY)
HAGGARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND SCHRODER, JUDGES; MILLER,1 SPECIAL JUDGE.
GUIDUGLI, JUDGE:
Kellea Elizabeth Haggard (now Roeder) has
appealed from the Boone Family Court’s orders naming Glenn
Haggard and Lenora (Kay) Haggard the de facto custodians of her
natural child and their granddaughter, Kaitlin Nicole Haggard,
and awarding custody to them.
Kellea’s arguments solely address
the de facto custodian ruling, and relate to whether the statute
1
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
applies in this case, as Glenn and Kay cared for Kaitlin
alongside her natural father, and whether she waived her
superior right to custody.
Because we disagree with both
arguments and hold that the family court’s ruling on de facto
custodianship was correct, we affirm.
Jamie Lee Haggard and Kellea were married on August 5,
1994, in Boone County, Kentucky, following the birth of their
daughter, Kaitlin, on May 11, 1994.
Less than a year later,
Jamie filed a Verified Petition for Dissolution.
After a few
reconciliations, the marriage was dissolved by a decree entered
in early 1997.
The parties later entered into a property
settlement agreement, by which Jamie and Kellea were to share
joint custody of Kaitlin, with Jamie being awarded physical
custody and Kellea being awarded visitation.
The final decree
incorporating the property settlement agreement was entered
April 24, 1997.
Although the property settlement agreement did
not provide for an award of child support, the family court
ordered Kellea to pay child support to Jamie in the amount of
$64.70 per week beginning in October 1999.
In order to fully comprehend this case, we must review
its full factual background.
At the time of Kaitlin’s birth in
May 1994, Kellea and Jamie were residing with his parents, Glenn
and Kay.
They all lived there until October 1994 when Kellea,
Jamie and Kaitlin moved to an apartment.
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All three returned to
Glenn and Kay’s residence in August 1995.
Kellea moved out in
July 1996, and later moved to Louisville, but Jamie and Kaitlin
continued to live with Glenn and Kay until he purchased a house
in August 2001.
Although Jamie moved out, Kaitlin continued to
have significant contact with Glenn and Kay, spending many
weekends and every night during the week at their house.
Jamie
had little to do with Kaitlin’s school or medical care.
In February 2003, Glenn and Kay learned that Jamie was
using heroin.
At that point, Kaitlin was at their house all of
the time and Jamie had no responsibility for Kaitlin.
When
Jamie moved back in with his parents in November 2003, he
refused to take any responsibility for Kaitlin.
Glenn and Kay
had Jamie arrested the following May on drug and theft charges.
Jamie entered a guilty plea in Boone Circuit Court in June 2004
to those charges, and received a three-year probated sentence.
He was released in order to be placed into a treatment facility
in Florida.
Upon his release from the treatment facility on
December 15, 2004, Jamie returned to his parents’ home until he
moved in with a girlfriend in March 2005.
For the entirety of
the time they cared for Kaitlin, Glenn and Kay never received
any financial support from Jamie.
Moving back to the family court action, the record
reflects that Jamie and Kellea revisited the court on numerous
occasions regarding custody, visitation, and support issues.
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In
2001, the family court appointed a guardian ad litem to
represent Kaitlin’s interests.
In June 2002 on motion of the
guardian and Jamie, the family court ordered that Kellea’s
visits with Kaitlin must be supervised and eventually ordered
Level 1 supervision at the Holly Hill Visits Program in Northern
Kentucky.
These visits were originally set for 1.5 hours per
week, and were then moved to two-hour visits every other Sunday.
The family court also ordered Kellea to undergo a psychological
evaluation, which she did in January 2003.
In April, the family
court denied Kellea’s motion to reinstate the original
visitation and ordered her to undergo intensive individual
counseling.
Kellea did not comply with this directive until the
following year, just prior to the time she sought a change in
custody.
On June 23, 2004, Kellea filed a motion to modify
custody and to terminate supervised visitation.
She argued that
it would be in Kaitlin’s best interest to transfer custody from
Jamie to her, citing Jamie’s admission to an in-patient drug
rehabilitation program for his heroin abuse.
Because of these
circumstances, Jamie was no longer able to care for Kaitlin, and
she had the ability to provide suitable housing and care.
By
this time, Kellea had remarried and had had another child, Kevin
(born March 7, 1998).
She later had another daughter by her
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second husband who was ten months old at the time of the hearing
in 2005.
On July 1, 2004, the guardian moved the family court
to identify Glenn and Kay as Kaitlin’s de facto custodians and
to award them temporary custody.
The guardian argued that
Kaitlin had lived with her grandparents for all but ten months
of her life, and that they had provided her with financial,
educational, and emotional support.
She noted that Kaitlin’s
father was in an in-patient drug rehabilitation program and that
her mother had a history of domestic violence and reacting
violently in front of Kaitlin.
In contrast, she noted that
during her time with her grandparents, Kaitlin had excelled in
school (she earned straight-As during her 4th and 5th grade school
levels), participated in local community and church activities,
and established friends in the neighborhood.
Two weeks later, Glenn and Kay moved to intervene, to
be declared de facto custodians, and for sole custody.
By
affidavit, Jamie agreed that it would be in Kaitlin’s best
interest for his parents to be granted custody.
In response,
Kellea argued that Glenn and Kay did not meet the statutory
definition of de facto custodians because they were caring for
Kaitlin alongside her natural father, and that she should be
granted custody as the natural father was enrolled in an inpatient program and would be for several months.
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Prior to ruling on custody, the family court held a
hearing solely on Glenn and Kay’s motion to intervene and to be
declared de facto custodians on June 7, 2005.
At the conclusion
of the hearing, Judge Bramlage orally granted the motion to
intervene and declared that Glenn and Kay were de facto
custodians.
On June 13, 2005, the following Findings of Fact
and Conclusions of Law were entered, in which the family court
made several findings regarding Kaitlin’s care and financial
support during her life:
. . . .
2. [Jamie] and [Kellea] were divorced April
24, 1997. Pursuant to their separation
agreement filed March 25, 1997, [Jamie] and
[Kellea] were awarded joint care, custody,
and control of the parties’ minor child,
Kaitlin Haggard. [Jamie] was awarded
physical custody of the minor child with
[Kellea] having specific visitation. That
particular order has never been modified but
the parties have modified the order by their
actions. Since the minor child’s birth, the
minor child has resided almost exclusively
with the Movants, Glen[n] and Lenora Kay
Haggard. From May 11, 1994, the date of the
minor child’s birth, the minor child,
[Jamie], and [Kellea] lived at 6190
Ridgewood Court, Florence, Kentucky with the
Movants. In October, 1994, [Jamie] and
[Kellea] moved with the minor child to an
apartment on Circle Drive. In August of
1995, [Jamie], [Kellea] and the minor child
moved back in with the Movants at 6190
Ridgewood Court, Florence, Kentucky. In
July of 1996, [Kellea] moved from the
Movants’ residence into an apartment and
then subsequently moved to Louisville,
Kentucky. In September of 2001 [Jamie]
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moved from the Movants’ residence to a house
on Pheasant Drive in Florence, Kentucky.
The minor child, Kaitlin Haggard, remained
with the Movants in their home at 6190
Ridgewood Court, Florence, Kentucky. There
was a bedroom at [Jamie’s] home for the
minor child, but the minor child spent 90 to
95 percent of her time with the Movants in
their home. The minor child’s belongings
remained with the Movants as well. From
September, 2001 to the present, the Movants,
the paternal grandparents, provided the
primary care for the minor child.
3. On June 23, 2004, [Kellea] filed a
Motion to Reallocate Custody, Care and
Control of the minor child, Kaitlin
Haggard. . . .
4. Since September 2001, the Movants have
proven, by clear and convincing evidence,
that they have been the primary caregiver
for, and financial supporter of, Kaitlin
Haggard. Even though [Kellea] was paying
child support to [Jamie] for support of the
minor child in the amount of $64.70 a week,
the minor child’s expenses far exceeded
$64.70 per week. [Jamie] paid nothing to
the Movants for the care and support of the
minor child, Kaitlin Haggard. In addition
to being the primary financial supporter of
the minor child, the Movants performed all
the duties as if they were the parents of
the minor child including, feeding and
clothing the child, taking the child to the
library, transporting the child for
extracurricular activities, making sure the
child got up and went to school and got home
from school, providing love and attention
for the minor child, cooking her meals and
basically providing all necessities as if
they were the parents of the minor child.
This activity occurred from September, 2001
to the present. . . .
5. [Kellea] was ordered in October of 1999
to pay child support in the amount of $64.70
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a week but was never current in her child
support payments. There would be times when
she would go months without paying any child
support. In 2003, [Kellea] went 4
consecutive months without paying child
support and once again 3 consecutive months
without paying child support. For the year
2003, she was in arrears approximately
$750.00. In the year 2004, she was in
arrears approximately $1800.00.
6. In the winter of 2002, [Kellea] was
ordered to have only supervised visitation
with the minor child. This visitation
occurred only 2 hours 2 times a week at
Holly Hill and then subsequently was reduced
to an even lesser amount of time. This
supervised visitation continues to occur to
date. Taking into consideration the short
amount of time that [Kellea] spent with the
minor child, it would be impossible for her
to be considered the primary caregiver for
the minor child.
7. In early 2002, [Jamie] began using
heroin and subsequently lost his job in
December of 2003. From February 2003 to the
present, [Jamie] has had almost no contact
with the minor child, Kaitlin Haggard.
[Jamie] has allowed the [p]aternal
grandparents, the Movants, to provide the
care and support for the minor child.
[Kellea] was aware of [Jamie’s] drug problem
in March of 2002 but did nothing to try to
regain custody of the minor child at that
time. It appears to the Court that [Kellea]
knew that the Movants were providing the
care for the minor child and allowed them to
do so.
By separate order entered the same day, the family court granted
Glenn and Kay’s motion to intervene.
The order also named Glenn
and Kay as Kaitlin’s de facto custodians:
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The Court finds, by clear and convincing
evidence that the paternal grandparents
were, for over 1 year prior to [Kellea]
filing her Motion to Reallocate Custody, the
primary physical and financial supporters of
the minor child, Kaitlin Haggard. The
Intervenors, are de facto custodians of the
minor child, Kaitlin Haggard, date of birth
May 11, 1994.
Having ruled on the de facto custodianship issue, the
family court proceeded with a custody hearing on August 22,
2005.
At that point, Jamie was residing in the Boone County
Jail for violating the terms of his probation for his June 2004
conviction by moving out of his parents’ house and using heroin.
At the conclusion of the hearing, Judge Bramlage orally granted
custody to Glenn and Kay and ordered Jamie and Kellea to pay
support.
She ordered supervised visitation for Jamie and
indicated that Kellea’s visitation would shift from supervised
to unsupervised.
A written order, including findings of fact
and conclusions of law, memorializing the oral ruling was
entered August 29, 2005.
This appeal followed.
On appeal, Kellea presents two arguments:
1) that
pursuant to Consalvi v. Cawood,2 the de facto custodian statute
does not apply in situations where a person provides for a child
alongside a natural parent; and 2) that pursuant to Greathouse
v. Shreve,3 the opposing parties should be required to prove by
2
63 S.W.3d 195 (Ky.App. 2001).
3
891 S.W.2d 387 (Ky. 1995).
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clear and convincing evidence that she waived her superior
rights to the child before being designated as de facto
custodians.
Glenn and Kay dispute both of Kellea’s arguments in
their responsive brief, and further argue that they should have
been awarded custody based upon Kellea’s unfitness as a parent
and because it was in Kaitlin’s best interest.
We shall limit
our review to the issues Kellea raised in her brief.
The Supreme Court of Kentucky set out the applicable
standard of review in Moore v. Asente,4 and held that a reviewing
court may set aside findings of fact,
[O]nly if those findings are clearly
erroneous. And, the dispositive question
that we must answer, therefore, is whether
the trial court’s findings of fact are
clearly erroneous, i.e., whether or not
those findings are supported by substantial
evidence. “[S]ubstantial evidence” is
“[e]vidence that a reasonable mind would
accept as adequate to support a conclusion”
and evidence that, when “taken alone or in
the light of all the evidence, . . . has
sufficient probative value to induce
conviction in the minds of reasonable men.”
Regardless of conflicting evidence, the
weight of the evidence, or the fact that the
reviewing court would have reached a
contrary finding, “due regard shall be given
to the opportunity of the trial court to
judge the credibility of the witnesses”
because judging the credibility of witnesses
and weighing evidence are tasks within the
exclusive province of the trial court.
Thus, “[m]ere doubt as to the correctness of
[a] finding [will] not justify [its]
reversal,” and appellate courts should not
4
110 S.W.3d 336, 354 (Ky. 2003).
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disturb trial court findings that are
supported by substantial evidence.
(Citations omitted.)
With this standard in mind, we shall review the family court’s
order that afforded Glenn and Kay de facto custodian status.
The law in Kentucky regarding de facto custodian
status appears to be settled.
The Supreme Court recently stated
in B.F. v. T.D.5 that, “[w]ith respect to who may be a de facto
custodian, Kentucky statutory law is comprehensive.
The General
Assembly has legislated fully in this area and this court is
bound to apply those statutes.”
A “de facto custodian” is
statutorily defined as:
[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.6
Once the court determines that a person is a de facto custodian,
KRS 403.270(1)(b) provides that “the court shall give the person
the same standing in custody matters that is given to each
5
__ S.W.3d __, 2006 WL 1650568, *1 (Ky. 2006).
6
KRS 403.270(1)(a).
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parent under this section and KRS 403.280, 403.340, 403.350,
403.822, and 403.020.”7
In Kentucky, a person must have “been the primary
caregiver for the child but also the primary financial supporter
of the child in order to prove de facto custodian status.”8
Likewise, in Consalvi, this Court held:
We are bound by the plain language of the
statute, and words not defined must be given
their ordinary meanings. In this case it is
clear that the statute is intended to
protect someone who is the primary provider
for a minor child in the stead of a natural
parent; if the parent is not the primary
caregiver, then someone else must be. . . .
It is not enough that a person provide for a
child alongside the natural parent; the
statute is clear that one must literally
stand in the place of the natural parent to
qualify as a de facto custodian. To hold
otherwise would serve to expand a narrowly
drawn statute intended to protect
grandparents and other persons who take care
of a child in the absence of a parent into a
broad sweeping statute placing all
stepparents on an equal footing with natural
parents.9
We now turn to the first of Kellea’s two arguments.
Kellea argues that Glenn and Kay cannot be named de facto
custodians because they were providing for Kaitlin along with
her natural father, Jamie, citing Consalvi.
7
We disagree with
See Sherfey v. Sherfey, 74 S.W.3d 777 (Ky.App. 2002).
8
Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 798 (Ky.App.
2001).
9
Consalvi, 63 S.W.3d at 198.
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this argument, and hold that there is substantial evidence to
support the family court’s finding that Jamie had very little,
and at times nothing, to do with Kaitlin’s care or support.
While Jamie technically was the parent with physical custody,
the record is clear that he did not assume that role, and that
Glenn and Kay did; they literally stood in the natural father’s
place.
Therefore, the facts of this case do not run afoul of
Consalvi, as Kellea would have this Court hold.
We also agree with the family court in recognizing
that Glenn and Kay established by clear and convincing evidence
that they were the primary caregivers and financial supporters
of Kaitlin for the required statutory period, and were properly
named as de facto custodians.
This is true despite Kellea’s
payment of child support for Kaitlin, as Glenn and Kay were able
to establish that the amount of money necessary to support
Kaitlin far exceeded the support Kellea actually paid.
We
perceive no error in this ruling.
For her second argument, Kellea relies upon the
Supreme Court’s opinion in Greathouse for the proposition that
Glenn and Kay needed to establish that she, the non-custodial
parent, waived her superior custodial rights for their claim for
custody to succeed.
As this Court pointed out in Consalvi,
Greathouse was superseded by the amendments to KRS 403.270(1)
and “[t]he de facto custodian statute is at present the
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governing law in this and similar cases.”10
Again, we find no
basis in the law supporting Kellea’s argument for reversal.
For the foregoing reasons, the judgment of the Boone
Family Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Edward G. Drennen
Florence, Kentucky
BRIEF FOR APPELLEES, GLENN
HAGGARD AND LENORA (KAY)
HAGGARD:
Michael J. McMain
Florence, Kentucky
10
Id.
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