Burgess v. Chase

• Citation: 629 S.W.3d 826
• Decision Date: 23 July 2021
• Docket Number: NO. 2020-CA-0713-MR,2020-CA-0713-MR
• Parties: Samantha BURGESS (Now Phillips), Appellant v. Jason CHASE and Joyce Chase, Appellees
• Court: Court of Appeals of Kentucky

629 S.W.3d 826

Samantha BURGESS (Now Phillips), Appellant

v.Jason CHASE and Joyce Chase, Appellees

NO. 2020-CA-0713-MR

Court of Appeals of Kentucky.

JULY 23, 2021; 10:00 A.M.

BRIEF FOR APPELLANT: William D. Tingley, Louisville, Kentucky, LeeAnna Dowan, Elizabethtown, Kentucky.

NO BRIEF FOR APPELLEES.

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

OPINION

CALDWELL, JUDGE:

Samantha Burgess (now Phillips) appeals from the Hardin Family Court's order awarding joint custody and primary residential custody of her minor child ("Child")¹ with Jason Chase to Child's paternal grandmother, Joyce Chase. As the family court erred in determining that Joyce Chase was Child's de facto custodian, we reverse and remand for further proceedings.

FACTS

In November 2005, Child was born to Samantha Burgess and Jason Chase (both then minors). Child's parents were never married to one another. We will refer to both parents by their first names to avoid any confusion posed by later surname changes or by other litigants having the same surname.

In August 2009, the family court entered judgment on Jason's custody petition² providing for the parents’ joint custody of Child with Jason designated as the "primary possessor parent." The judgment further provided that "parenting time/visitation shall continue as currently exercised" under an agreed order entered in September 2008 and that the family court would exercise continuing jurisdiction over parenting time.³ Samantha was ordered to pay Jason child support. Neither party appealed this judgment and there were no further proceedings regarding custody or parenting time for approximately ten years.⁴

In July 2019, Samantha filed a motion styled as a motion to modify custody. She requested that joint custody continue but that she be named the "primary possessory parent" and that Child be permitted to remain with her at her residence in West Virginia and to enroll in school there.⁵ She alleged that Jason had recently been arrested and had "an extensive criminal record including drug related charges in the past few years" and that Child was not properly supervised in his care.

In an affidavit attached to her motion, Samantha averred that Child was currently staying with her for the summer and had been spending all school breaks with her since about 2010. She also averred inter alia that Child's relationship with Jason was strained due to his substance abuse and criminal history and that Child suffered trauma due to witnessing Jason overdosing twice. She stated a belief that Child had not spoken to Jason for a few months and that Jason had mostly lived with his mother and younger brother since the decree. She further averred that Jason failed to monitor Child's usage of her cell phone and social media, which she believed Child had been using inappropriately.

Just a few days after Samantha filed her motion in early July 2019, Joyce Chase (Jason's mother) filed a motion to intervene in the proceedings between Jason and Samantha. Joyce alleged therein that she was the de facto custodian of Child and submitted a supporting affidavit, in which she asserted she had been Child's primary caregiver and financial supporter for almost thirteen years—since Child came to live in her home in October 2006. She also asserted that Samantha had not paid child support to Jason or the state for Child and that Samantha now owed $47,000 in child support. She admitted that Samantha had paid her $1,000 from a tax refund in 2018 but claimed Samantha never paid her anything else to help provide for Child. She requested that she be declared de facto custodian and be awarded custody of Child.

Samantha argued in a written pleading that Joyce lacked standing to intervene because Joyce had not filed a petition for custody under Kentucky Revised Statutes (KRS) 405.020 and did not qualify as a de facto custodian under Kentucky law. She requested that the family court dismiss Joyce's motion to intervene and to be declared a de facto custodian.

The family court then scheduled an evidentiary hearing to take place in December 2019. According to the family court's written scheduling order, this hearing would address "De Facto Custodian and Custody." At the beginning of this December 2019 hearing, Samantha also requested a ruling on her motion to dismiss Joyce's motion for intervention and de facto custodian status. The family court judge orally acknowledged that she would first need to determine whether Joyce should be allowed to intervene and then determine if Joyce qualified as a de facto custodian before ruling on Samantha's motion for modification. No one objected to the family court's not conducting a separate prior hearing on intervention and de facto custodian status at that time, and all litigants appeared to acquiesce to the family court's having just one hearing on all three issues.⁶ So, the family court then proceeded to hear testimony.

Jason, Joyce, and Samantha testified. Joyce also presented the testimony of some family friends and of her adult daughter who had been living with Joyce along with the daughter's own children for several years until a few months beforehand.⁷ Jason, who was not represented by counsel at the hearing, agreed with Joyce that he had waived his superior right as a parent to his mother. He, his sister, and the family friends testified to Joyce being the person who took care of Child, including taking her to the doctor and dentist and being a contact person listed for school. Samantha testified to having sought medical or dental care for Child when needed when Child stayed with her in West Virginia, but she admitted that she had not previously been involved in Child's medical or dental care obtained in Kentucky.

According to some witnesses’ testimony, Jason was not living in Joyce's house–apparently to shield Child and others from his drug use–but lived in an outbuilding on her property and came in Joyce's house to eat and use the restroom. There was no dispute that Jason and Samantha had not spoken for many years. And Joyce, rather than Jason, had transported Child to and from exchange places so Child could spend time with Samantha. No one disputed that Samantha had Child with her for almost all school breaks for several years. But according to Samantha's testimony, no one had informed Samantha of Jason's drug use or criminal history or that Jason was no longer living in his mother's house or taking care of Child until very recently.

Joyce testified to obtaining information that Samantha was $47,000 behind in paying child support. There was no evidence presented of Jason making any effort to collect on any arrearages, however. Samantha testified to having paid some amounts for child support to Joyce via money orders–in addition to the $1,000 paid in 2018 from a tax refund acknowledged by Joyce in a pleading–but to not getting receipts for such amounts. She testified that she had never paid child support through the child support office but instead provided funds in a more informal manner.

In February 2020, the family court entered findings of fact, conclusions of law, and judgment–essentially allowing Joyce to intervene, finding her a de facto custodian, and awarding joint custody to Joyce and Samantha but designating Joyce as the "primary residential custodian." Samantha filed a motion to alter, amend, or vacate.

In April 2020, the family court entered amended findings of fact, conclusions of law, and judgment. It concluded that Joyce's motion to intervene with requests for declaration of de facto custodian status and custody served the same practical purpose as filing a petition for custody under KRS 405.020. And it concluded that Joyce qualified as a de facto custodian, finding that Child had lived with Joyce since Child was about a year old; that Joyce had been Child's primary caregiver and financial provider; and that Joyce had been Child's "acting parent" for nearly all of Child's life. (Page 7 of Amended Judgment, Record (R.), at 357.)⁸ It awarded joint custody to Joyce and Samantha with Joyce having primary residential custody and Samantha having parenting time under certain specified conditions–including supervision of her parenting time and drug testing upon Joyce's request.⁹

Samantha filed a timely notice of appeal, naming both Jason and Joyce as appellees although noting Joyce was not named in the caption on the family court's judgment. On the same day that Samantha's appellate brief was filed, this Court entered an order granting Joyce's counsel's motion to withdraw. Neither Joyce nor Jason filed an appellee's brief.

Samantha's primary argument on appeal is that the family court erred in finding Joyce to be the de facto custodian of Child. Neither Joyce nor Jason responded to Samantha's appellate arguments by filing a brief.

According to Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) :

If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.

However, given the important interests at stake, we decline to exercise our discretion to limit our review in such a manner. See Roberts v. Bucci , 218 S.W.3d 395, 396 (Ky. App. 2007) (declining options in CR 76.12(8)(c) given presentation of issues of first impression meriting substantive consideration). See also Hawkins v. Jones , 555 S.W.3d 459, 461 (Ky. App. 2018) ("Though we elect not to impose any penalty upon [appellee who failed to file brief] in the present case, we strongly suggest that the best practice is to file an appellee brief, as the failure to do so exposes appellees to the penalties in CR 76.12(8)(c). Furthermore, although not specifically imposing a penalty, without a counterstatement of the facts, we are reliant on [appe...