Blakey v. Bunch
| Decision Date | 18 July 2014 |
| Docket Number | NO. 2013-CA-001562-ME,2013-CA-001562-ME |
| Parties | HOLLY BLAKEY APPELLANT v. CLIFTON BUNCH APPELLEE |
| Court | Kentucky Court of Appeals |
HOLLY BLAKEY APPELLANT
v.
CLIFTON BUNCH APPELLEE
NO. 2013-CA-001562-ME
Commonwealth of Kentucky Court of Appeals
JULY 18, 2014
NOT TO BE PUBLISHED
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NO. 12-CI-00213
OPINION
AFFIRMING
BEFORE: JONES, STUMBO, AND THOMPSON, JUDGES.
JONES, JUDGE: This case arises out of a civil custody action wherein Appellee was designated the primary residential custodian of the parties' minor child. On appeal, we consider the trial court's designation of venue and certain findings of fact. For the reasons set forth below, we affirm.
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Appellant, Holly Blakey (hereinafter "Holly"), gave birth to a daughter (hereinafter "Minor Child") on June 26, 2010. Holly was fifteen (15) years of age at the time of Minor Child's birth. Initially, Holly and Minor Child resided with Holly's mother, Angela Haynes (hereinafter "Angela"), and stepfather, Donald Haynes (hereinafter "Donald"), in Pulaski County, Kentucky.
Shortly after Minor Child's birth, an action was commenced in Pulaski Family Court wherein DNA testing was conducted to establish the identity of Minor Child's biological father. Appellee Clifton Bunch (hereinafter "Clifton"), a resident of Russell County, was determined to be Minor Child's biological father.1 After establishing Clifton's paternity, the Pulaski Family Court entered an order granting father visitation with Minor Child and directing the parties to submit an agreement as to custody.2
In November 2010, Holly and Minor Child left Angela's house. They moved in with Holly's biological father, Kendrick Blakey (hereinafter "Kendrick"), who was residing in Russell County with his girlfriend, Lisa Thomas (hereinafter "Lisa").
Holly enrolled herself at Russell County High School and enrolled Minor Child in a daycare in Russell County. Clifton continued to exercise his visitation rights with Minor Child. On May 2, 2012, while Holly and Minor Child
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were still residing in Russell County, Clifton filed an action in Russell Family Court ("the Russell County Custody Action") seeking joint custody of Minor Child.3
On August 26, 2012, Holly, Kendrick, and Lisa became involved in a domestic dispute at Kendrick's residence.4 The police were called and criminal domestic violence/assault charges were filed by Kendrick against Holly. As a result, Holly moved out of Kendrick's residence and back in with Angela in Pulaski County.
Following the incident at Kendrick's house, Clifton filed an emergency juvenile custody motion in Russell County ("the Russell County Juvenile Action"), alleging that Minor Child was not in a safe and stable environment. The Russell Family Court granted Clifton's juvenile motion for emergency custody ("ECO") and ordered joint custody with Minor Child primarily living with Clifton and allowing Holly visitation in Russell County. At approximately the same time Clifton filed his juvenile action in Russell County, Holly filed a civil custody action in Pulaski County ("the Pulaski County Custody Action"), which was properly served on Clifton. Clifton filed a motion to transfer the Pulaski County Custody Action to Russell County, but the motion was not immediately heard by the trial court.
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On October 4, 2012, Holly appeared with counsel in Russell County for the Russell County Juvenile Action. She moved the Russell County trial court to vacate the emergency custody order and transfer the action to Pulaski County.5 During that juvenile hearing, the trial court indicated that it would not transfer the case and ordered the parties into immediate mediation.
During mediation, without counsel present, the parties entered into a parenting agreement ("Parenting Agreement") allowing for alternating parenting weeks with Minor Child.6 They presented the Parenting Agreement to the Russell County trial court as part of the Russell County Juvenile Action. Even though the hearing and mediation took place as part of the Russell County Juvenile Action, the trial court entered the Parenting Agreement in the Russell County Custody Action as well. The Parenting Agreement was entered prior to any review by Holly's counsel. Holly maintains that she understood that the Parenting Agreement would be reviewed by counsel prior to entry.
On October 16, 2012, Holly filed a motion in the Russell County Custody Action, to alter, amend, or vacate the Parenting Agreement on the basis that it was entered before her counsel had an opportunity to review it. Holly also alleged that she was never properly served in the Russell County Custody Action
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and that the Russell County Custody Action was not properly before the court during the October 4, 2012 hearing. The trial court heard Holly's motion on January 17, 2013. Due to the issues with service, the court set aside the October 4, 2012 Parenting Agreement and set a new hearing in the Russell County Custody Action for April 10, 2013.7
Prior to the April 10th hearing, Holly moved the Russell County trial court to dismiss the Russell County Custody Action alleging that the proper venue was Pulaski County. Holly alleged that even though Clifton filed the Russell County Custody Action before she filed the Pulaski County Custody Action, service was perfected in the Pulaski County Custody Action before service was perfected in the Russell County Custody action. The Russell County trial court denied Holly's motion.
The Russell County trial court then conducted the custody hearing as scheduled. Clifton, Holly, Kendrick, Angela, Lisa, Donald, and Clifton's mother, Delilah Bunch, testified at the hearing.
Clifton testified that he provides a stable environment for Minor Child; that he is now married with a child on the way; that he and his wife own and reside in a four bedroom home; that only he, his wife, and Minor Child, reside in that home; that he and his wife are employed full-time; that they engage in activities with Minor Child, such as church, story time at the library, and t-ball; and that Minor Child has appropriate care during the days when he and his wife are at
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work. Clifton also testified that he believed Holly was not taking proper care of Minor Child's medical needs, specifically in regards to vaccinations, dental care, and a "place" on Minor Child's eye; that Angela and Donald's home is inappropriate for Minor Child as there are too many people living there; that Holly has no job; that Holly has no independent means of transportation; that Holly hops from place to place; and that Holly was not the primary caretaker of Minor Child.
Holly testified that she recently graduated from high school; that she is eight months pregnant with her second child; that she is no longer in a relationship with the new baby's father; that she provides all care for Minor Child when the child is with her; that she is unemployed but has applications pending at local restaurants; that Angela's house is very spacious; that Minor Child has a good relationship with the others living in that home; that Minor Child cries when Clifton comes to pick her up; that Clifton has held several jobs since Minor Child was born; that Clifton does not provide health benefits for Minor Child; that she intended to take Minor Child to receive vaccinations, but was interrupted due to the emergency custody order; and that Minor Child goes to several different places for care during the days while Clifton is at work.
Kendrick testified that while Holly is a good mother, he viewed the atmosphere at Angela's house as being "very, very bad" with "too many people in the house for a baby to be raised up right." However, Kendrick testified that he had not actually been in Angela's house since their divorce in 1999, but rather heard chaos and shouting during phone conversations. Kendrick also testified that
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while Holly and Minor Child were living with him, Holly would sometimes take Minor Child to daycare and then skip school, stay out late, and miss her 11:00 p.m. curfew.
Lisa testified that Holly could not manage Minor Child by herself. She explained that while Holly and Minor Child resided with her and Kendrick, she was the primary caretaker of Minor Child during the evenings because Holly "always had plans and liked to run the roads."
Delilah Bunch, Clifton's mother, testified that she was concerned about Holly moving back and forth all the time; that Angela's house was overcrowded; that Holly does not have her own transportation; that Holly relies solely on her mother; and that she has general concerns regarding morals and values with Minor Child being around Holly's family.
Donald testified that he was employed; that he and Angela live in a four bedroom home; that there are multiple outdoor activities for the children; that the house is not chaotic; that there is no problem with transportation for Holly; that he is a Sunday School superintendent and the family attends church regularly; and that he has observed Holly taking good care of Minor Child.
Angela testified that Holly and Minor Child have their own room in the house; that there are four additional children in the house and that they all get along; that she does not work because she cares for the children and the household;...
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