Opinion
NO. 2019-CA-000070-ME
03-06-2020
CORA ANN REDMOND AND JERRY WAYNE REDMOND APPELLANTS v. ASHLEY WITT FLANARY APPELLEE
BRIEFS FOR APPELLANTS: Marcia Smith David Smith Corbin, Kentucky BRIEF FOR APPELLEE: Clyde Bishop Johnson, Jr. Pineville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 16-CI-00381 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. JONES, JUDGE: This appeal concerns the custody and timesharing of two minor children whose parents were killed. Having reviewed the record in conjunction with all applicable legal authority, we affirm.
I. STATEMENT OF THE FACTS
L.R. and N.R. were born to Kendra and Brian Redmond during their marriage. L.R. was born in 2002; N.R. was born in 2014. Kendra and Brian also had a third child, K.R., a girl, who was born in 2012. Tragically, on November 7, 2016, Kendra, Brian, and K.R. were killed in an automobile accident.
A week after the accident, Cora and Jerry Redmond, the children's paternal grandparents ("Grandparents") filed a petition seeking custody of L.R. and N.R. in Bell Circuit Court. Therein, Grandparents alleged that they "had care, custody and control of [N.R. and L.R.] for approximately two (2) years and [met] the requirements for being considered de facto custodians." They further alleged that the children were placed with them by the Department for Community Based Services ("DCBS"). Grandparents sought an order granting them immediate temporary emergency custody of both children, and thereafter an award of permanent custody of the children.
On November 18, 2016, before the trial court had the opportunity to rule on Grandparents' petition, the children's maternal aunt, Ashley Witt Flanary ("Aunt"), filed an objection to Grandparents' petition along with her own petition seeking custody of the boys. Aunt disputed Grandparents' allegations regarding de facto custodianship. Aunt noted that Kendra and Brian divorced the year before their deaths, and that the dissolution decree entered of record on October 14, 2015, awarded sole custody of the children to Kendra. Aunt alleged that it would be in the best interests of both L.R. and N.R. for her to be awarded permanent sole custody; she requested the trial court to order the Cabinet for Health and Family Services ("Cabinet") to commence an investigation and make a recommendation regarding temporary emergency custody of the Children.
On December 9, 2016, after interviewing L.R., the trial court awarded temporary joint custody of L.R. and N.R to both Grandparents and Aunt. Grandparents were designated as the temporary primary residential custodians of the older child, L.R., and Aunt was designated as the temporary primary residential custodian of the younger child, N.R. Aunt was given timesharing with L.R., and Grandparents were given timesharing with N.R.
After several delays, the trial court held an evidentiary hearing on March 29, 2017. Several witnesses testified at the hearing. The evidence established that Grandmother took the children to the doctor and to church, and that Kendra had authorized Grandmother to seek medical care for them. Grandmother testified that Kendra thought of her as her preferred babysitter while she worked, and frequently left the children in her care. L.R. told the trial court that he had lived with Grandparents for much of his life, and that he did not want to live anywhere else. L.R. further explained that he did not like visiting Aunt; it made him nervous and sick. Aunt testified about her ability to care for the children, including the fact that she had a child of her own that was about the same age as N.R.
On May 2, 2017, the trial court entered its first findings of fact, conclusions of law, and order of custody and visitation. The court found that although Grandparents provided caregiving and financial support, they had not established themselves as primary caregivers and thus did not qualify as de facto custodians. By the same token, the trial court found that although Kendra and N.R. lived with Aunt for a period of time following the dissolution, Kendra did not abdicate her parental role. At most, Aunt parented alongside Kendra, which is not sufficient to establish de facto custodianship.
Ultimately, the trial court concluded that the best interest of the children would be for the temporary custody and timesharing arrangement that was already in place to be made permanent. Grandparents and Aunt were granted joint legal custody of the Children. Grandparents were designated as L.R.'s primary residential custodian and Aunt was designated as N.R.'s primary residential custodian. The parties were to adhere to a timesharing schedule designed to allow the brothers to spend time with each other.
Grandparents filed a motion to modify on May 4, 2017. Therein, they argued that L.R. should not be forced into spending time with Aunt via a timesharing schedule. Grandparents attached medical records to their motion indicating that a physician had diagnosed L.R. with anxiety caused by his parents' deaths and the ensuing events regarding his custody. On May 23, 2017, the trial court entered an order temporarily suspending L.R.'s timesharing with Aunt with the matter to be revisited during a hearing on July 13, 2017.
Prior to the hearing, Aunt filed an emergency motion seeking to suspend Grandparents' timesharing with N.R. Aunt alleged that N.R. exhibited behavioral outbursts that lasted at least a couple of days after spending time with Grandparents; that Grandparents took N.R. to the lake knowing he had been diagnosed with a double ear infection and strep throat; and that Grandparents allowed N.R. to associate with unsavory individuals and witness inappropriate behaviors during their frequent lake trips.
On August 2, 2017, "seeking to put an end [to the conflict] and to try to bring closure to the parties," the trial court ordered both children to participate in psychiatric evaluations after which the provider was to make a recommendation to the court regarding custody and timesharing of both children. The trial court then suspended all timesharing until further order. Unfortunately, the trial court's order did not resolve the parties' conflict, even temporarily.
On January 24, 2018, Grandparents filed a motion seeking sole custody of L.R. and N.R. and for visitation between the brothers to commence immediately. In support of their motion, Grandparents filed an affidavit from L.R.'s treating psychologist, Dr. Sandra Nantz. L.R.'s psychologist recommended against L.R. visiting with Aunt at this time; however, she did believe it was imperative for L.R. to see his younger brother, N.R. To this end, Dr. Nantz averred:
[L.R.] lost his mother, father and younger sister in a tragic vehicular/tractor-trailer accident. Then to be split from his younger brother by the placement in a separate home and then denied contact with [N.R.] is compounding the bereavement, unconscionable and not based upon any generally accepted principles of child rearing, child psychology, coping with death of a parent or parents or death of a sibling. This estrangement is worse than another death to [L.R.] He is unable to heal or obtain closure. My recommendation is immediate reunification of the boys for visitation on a consistent basis at neutral locations. At this point in time, I do not recommend [L.R.] having visitation at the residence of [Aunt]. In addition, I recommend the adoption of certain rules of decorum during visitation, i.e., no discussion of the case, no discussion of other parties or their families, no disparaging remarks etc.
In response to the timesharing/visitation portion of Grandparents' motion, the trial court entered an "agreed temporary order" restarting timesharing. The order set forth a schedule for the parties to exercise timesharing with the child not in their residential custodianship and required all timesharing to be supervised. The order did not modify custody, meaning Grandparents and Aunt continued to share joint legal custody of the boys with Grandparents acting as the primary residential custodian of L.R. and Aunt acting as the primary residential custodian of N.R. Subsequently, in an effort to resolve the outstanding motions regarding custody, the trial court ordered Dr. David Feinberg to conduct a custodial evaluation of all involved parties (Grandparents, Aunt, L.R., and N.R.) and to report his findings and recommendations to the Court.
Before Dr. Feinberg could complete the evaluations and recommendation, the parties became embroiled in another dispute. On August 10, 2018, Grandparents filed a motion seeking custody of both boys and to hold Aunt in contempt for missing two timesharing visits. On September 14, 2018, Aunt responded by filing her own motion styled "notice of withholding and motion to suspend visitation." In support of her motion, Aunt cited N.R.'s behavioral issues after visits with Grandparents and pointed out that after N.R. returned from his most recent visit she noticed contusions and N.R. complained of body aches and other physical ailments resulting in an ongoing investigation by the Cabinet.
On October 19, 2018, the trial court took up the motions as related to N.R.'s temporary timesharing. The trial court denied Aunt's motion to suspend timesharing with Grandparents and ordered the missed visits to be made up with additional time. All other motions were placed in abeyance pending conclusion of the Cabinet's investigation. On November 6, 2018, Grandparents filed a report from the Cabinet indicating that it could not substantiate any abuse of N.R. by Grandparents.
Dr. Feinberg's report was completed at the end of October 2018 and delivered to the Court. Dr. Feinberg evaluated L.R., N.R., Grandparents, Aunt, and Aunt's husband. Dr. Feinberg's work with the parties was extensive, and his report is very detailed. He noted shortcomings with regard to all the adults. These shortcomings included mental health concerns, grief-related issues, and intellectual challenges. By the same token, he recognized positive parenting attributes in all the adults, including love and affection for the children and a desire to attend to their needs. He noted that Grandparents had been proactive in helping L.R. receive additional tutoring at school, and that Aunt had been proactive in recognizing and seeking intervention for some development delays in N.R. Ultimately, Dr. Feinberg recommended that Grandparents have custody of L.R., and Aunt and her husband have custody of N.R. Dr. Feinberg recommended against forcing L.R. to visit with Aunt and her husband; however, he did believe it was important for the brothers to see one another and indicated that this could be accomplished through N.R. visiting with Grandparents every other weekend.
Dr. Feinberg did not indicate that any of the involved adults was responsible for N.R.'s difficulties. Dr. Feinberg pointed out that N.R.'s mother had a long history of drug abuse prior to her death, and that it was possible that N.R.'s problems were caused by in utero drug exposure.
After receiving Dr. Feinberg's report, the trial court held a final hearing on November 7, 2018. The purpose of the hearing was to resolve all pending motions dating back to Grandparents' May 4, 2017 motion to modify. As part of the hearing, Grandparents called Dr. Nantz to testify. Dr. Nantz disagreed with Dr. Feinberg's recommendation regarding the children residing in separate homes for most of the time. In her professional opinion, children should always stay together unless the situation warrants separation, such as in cases of physical or sexual abuse.
On December 20, 2018, the trial court entered its detailed findings of fact, conclusions of law and custody decree. After reviewing and summarizing all the evidence and testimony, the trial court concluded as follows:
Due to the tragic and untimely events which [led] to the death of not only [L.R. and N.R.'s] parents, but [also] their sibling, [K.R.], this Court FINDS that it is clearly in the children's best interest that [they] maintain significant and sustained contact and communication with the remaining family members of [their parents]. Both [Grandparents] and [Aunt] each in their own respective way have much to offer [L.R. and N.R.] as they navigate to adulthood without the benefit of their parents. And what an injustice and a tragedy will result if [Grandparents] and [Aunt] cannot set aside their self-serving and selfish interests to protect the best interest of these children. Both [Grandparents] and [Aunt] are "blood" relation of these "orphaned children." The record will establish that the parties, both [Grandparents] and [Aunt], have resisted, if not completely dismissed, any attempts to work together. A sad reality in that these children are entitled to better especially in light of the horrific events which have placed them the subject of this action.
This Court on May 2, 2017, entered its Findings of Fact, Conclusions of Law, and Order of Custody and Visitation following a lengthy hearing. [Grandparents] on May 4, 2017 filed their Motion to Modify said Findings and the [Aunt] on May 19, 2017, filed her Objection to [Grandparents'] Motion to Modify the Court's Findings. . . . The Court FINDS that many of the issues and conflicts are the making of [Grandparents and Aunt], not the children. [L.R.] is well-integrated into [Grandparents'] house and family. This integration began prior to the deaths of the children's parents. The record established that at the time of the parents' deaths, the mother [Kendra], had previously been granted sole custody of both [L.R. and N.R.]. Kendra and [N.R.] were living/staying with her sister, [Aunt]. The record further established that [L.R.] spent the majority of his life in and at the home of [Grandparents], [who provided] for most if not all of [L.R.'s] needs. The Court FINDS that [L.R.] is well-integrated into [Grandparents'] house and family and that [N.R.] is well-integrated into [Aunt's] house and family. The Court can find no cause to disturb its earlier Order of Custody. The Court remains persuaded, under the authority of KRS 403.270, 403.340, 403.350, and all other applicable law, that the best interests of [L.R. and N.R.], are best served by denying [Grandparents'] Motion for Sole Custody, or Equal Joint Custody and IT IS SO ORDERED. The Court does FIND sufficient cause to modify the [timesharing] schedule previously set forth in its May 2, 2017 Findings of Fact, Conclusions of Law, and Order of Custody. [L.R. and N.R.] are brothers. They are entitled to have the opportunity to see one another as much as possible. It is the responsibility of and should be the desire of the parties to take any and all steps necessary to facilitate same. However, both [Grandparents and Aunt] have made what should be an easy task nearly impossible. Their obvious and open [disdain] for one another appears at times to be more important than what is in the best interest of these children. The Court FINDS that the best interest of [L.R. and N.R.] shall be best served by the
Visitation Schedule and Timesharing Rules attached and incorporated hereto and IT IS SO ORDERED. Child Support is not awarded to either [Grandparents or Aunt] and IT IS SO ORDERED.(R. 728-30). The accompanying timesharing schedule provided Aunt timesharing with L.R. on the first and third weekends of each month as follows: two hours on Friday evening, three hours on Saturday afternoon, and two hours on Sunday evening. Grandparents were provided with timesharing of N.R. in gradually increasing phases working up to timesharing every other weekend from Friday afternoon until Sunday evening and weekly for three hours on Thursday evenings. The schedule was set to maximize the brothers' time with each other.
. . . .
1. [Grandparents] are granted joint custody of [L.R. and N.R.]
2. [Aunt] is granted joint custody of [L.R. and N.R.]
3. [Grandparents] shall be designated as primary residential custodian of [L.R.]
4. [Aunt] shall be designated as primary residential custodian of [N.R.]
5. [Grandparents and Aunt] shall each receive [timesharing] as set forth in the Visitation Schedule and Timesharing Rules herein attached.
6. [Grandparents and Aunt] are not to interfere with the visitation time between the minor children.
Grandparents' timesharing of N.R. coincided with times L.R. was with them and Aunt's timesharing of L.R. coincided with times N.R. was with her.
II. STANDARD OF REVIEW
Appellate courts tasked with reviewing child custody cases engage in a two-step analysis:
These two steps each have a different standard of review. First, the trial court's findings of fact are examined for clear error, and findings may be set aside when they lack substantial evidence to support them. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). If, after review, this Court determines the factual findings do not present clear error, the analysis shifts to an examination of the trial court's legal conclusions, looking for abuse of discretion using a de novo standard. Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky. App. 2011). Abuse of discretion occurs when a ruling is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)."Jones v. Jones, 510 S.W.3d 845, 848-49 (Ky. App. 2017).
III. ANALYSIS
Grandparents' first argument centers on the trial court's initial determination that Grandparents did not qualify as the de facto custodians of L.R. as set forth in its May 2, 2017 order. Aunt counters that the May 2, 2017 order became final long before Grandparents filed this appeal.
Grandparents filed a motion to modify the May 2nd order on May 4, 2017. Even though Grandparents did not cite CR 59.05, their caption used the term "modify" in relation to the May 2, 2017 order, and they presented arguments related to the terms of that order. It is equally clear that the trial court treated the motion as one to modify/amend the prior order insomuch as it referenced the pending motion in its December 20, 2018 order. A CR 59.05 motion stays finality until the motion is ruled upon. Gullion v. Gullion, 163 S.W.3d 888, 891 (Ky. 2005).
Kentucky Rules of Civil Procedure. --------
Even though we agree with Grandparents that they raised de facto custodianship in a timely manner, we cannot agree that the trial court erred. The testimony indicated that even though L.R. stayed with Grandparents most of the time, Kendra still asserted her custodial rights over him. She participated in the dissolution action just a little more than a year prior to her death and sought and was awarded sole custody of L.R. during that action. L.R. also spent time with Kendra even though he stayed most nights with Grandparents. L.R. told the trial court that while he lived with Grandparents most of the time, he stayed with Kendra sometimes and other times he stayed with his maternal grandparents. Grandparents characterized themselves as Kendra's preferred babysitter. At various times, the Cabinet was involved with this family. Kendra worked case plans aimed at maintaining her parental and custodial rights of all her children, including L.R. Again, this behavior is inconsistent with Kendra having abdicated her caretaking role to Grandparents.
While the role Grandparents played in L.R.'s life was significant, we do not believe that the evidence was so overwhelming or one sided as to require the trial court to find that they were L.R.'s de facto custodian. Kendra remained involved in L.R.'s life and she continued to play a role in the decisions related to his care. "A grandparent who co-parents a child with the natural mother or father does not make the grandparent the primary caregiver." Chadwick v. Flora, 488 S.W.3d 640, 644 (Ky. App. 2016).
We now turn to Grandparents' secondary argument, which is that the trial court abused its discretion when it entered a custody and timesharing order that divided the boys between two different primary residential custodians and when it granted Aunt primary residential custodianship of N.R. "When the choice of custodian is between non-parents . . . Kentucky courts seek the result that is in the best interests of the child." Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010) (footnote omitted). The trial court labored over this case. It sought and obtained an expert evaluation. It listened to and summarized the testimony of numerous witnesses. A review of the trial court's December 20, 2018, order shows that it considered the best interest factors with depth, understanding, and consideration of the unique circumstances of this case. While keeping the boys together was certainly a lofty goal, the trial court made an informed and reasoned determination that doing so would not ultimately be in the separate or collective best interests of the boys.
To this end, it is important to recognize that the trial court was not presented with an intact family. Even before their parents' deaths, the boys were staying in separate homes much of the time. L.R. stayed most nights with Grandparents, and N.R. and Kendra were living at Aunt's house. Given the sudden, tragic death of three immediate family members, the trial court appropriately recognized that it was important to maintain some level of stability in the boys' individual lives. At the same time, the trial court recognized that even though L.R. did not want to have contact with Aunt, it was important to his overall development to maintain some connection to his maternal side of the family. In partially granting Grandparents' motion to modify, the trial court reduced L.R.'s timesharing with Aunt to minimize his discomfort and the interruption to other parts of his life. The trial court also entered a timesharing schedule aimed at providing the brothers with a substantial amount of time together and allowing Grandparents to play an important role in N.R.'s life and upbringing. The trial court's order is supported by the evidence of record, well-reasoned, and consistent with our statutes and case law. There is no basis to reverse or vacate it.
IV. CONCLUSION
In light of the foregoing, the decision of the Bell Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Marcia Smith
David Smith
Corbin, Kentucky BRIEF FOR APPELLEE: Clyde Bishop Johnson, Jr.
Pineville, Kentucky