Heltsley v. Frogge

• Decision Date: 17 June 2011
• Docket Number: Nos. 2009–CA–001867–ME,2010–CA–000049–ME.,s. 2009–CA–001867–ME
• Citation: 350 S.W.3d 807
• Parties: Anthony HELTSLEY; and Rebecca Heltsley, Appellants,v.Brian Lee FROGGE, Sr.; and Susan Jean Frogge, Appellees.
• Court: Kentucky Court of Appeals

350 S.W.3d 807

Anthony HELTSLEY; and Rebecca Heltsley, Appellants,

v.Brian Lee FROGGE, Sr.; and Susan Jean Frogge, Appellees.

Nos. 2009–CA–001867–ME

2010–CA–000049–ME.

Court of Appeals of Kentucky.

June 17, 2011.

Dixie R. Satterfield, Bowling Green, KY, for appellants and cross-appellees.

Nancy Oliver Roberts, Bowling Green, KY, for appellees and cross-appellants.Before ACREE, CAPERTON and CLAYTON, Judges.

OPINION

ACREE, Judge:

The primary issue on appeal is whether the Warren Family Court properly denied de facto custodian status to a child's grandparents. We must also determine whether the family court properly ordered the grandparents to pay a portion of the attorney's fees incurred by the child's father.¹

Facts and procedure

Brian Frogge, Sr. (Father) and Susan Frogge (Mother) were married on April 24, 2001, and lived near the Kentucky–Tennessee border for most of their marriage. A child (Child) was born to the couple on September 11, 2003. Prior to his parents' separation, Child's maternal grandparents (Grandparents collectively) provided the family significant financial support, and Mother and Child spent lengthy periods in Grandparents' home in Bowling Green, Kentucky, while Father was on active military duty.

Anticipating divorce proceedings, Mother and Child moved permanently to Grandparents' home on January 14, 2007. Three days later, Grandparents filed a petition alleging Child was dependent. The Warren Family Court agreed, and Grandparents were granted temporary custody on January 22, 2007. Mother continued to reside with Grandparents and Child.

On February 23, 2007, Mother commenced an action for dissolution of marriage from Father. She identified Grandparents as previously having been awarded temporary custody of Child. However, Mother's petition sought to regain custody of Child.² On April 16, 2007, when Father responded to Mother's petition, he did so pro se. His prayer for relief in that response specifically asks the family court to “[g]rant the Respondent joint custody, custodial care to be in favor of Respondent....”

Grandparents were permitted to intervene in that action on July 17, 2007. They asserted they were Child's de facto custodians and requested they be granted permanent custody of Child.

On April 20, 2009, following several evidentiary hearings, the family court entered an order dismissing Grandparents' intervening petition, determining that they were not Child's de facto custodians and that they therefore lacked standing to pursue custody. On October 26, 2009, the family court also ordered Grandparents to pay Father's attorney fees. Grandparents took timely appeals from both orders.

Standard of review

The family court's determination that Grandparents were not de facto custodians of Child was a conclusion of law based on facts that were uncontested. Accordingly, our review of this decision is de novo. Laterza v. Commonwealth, 244 S.W.3d 754, 756 (Ky.App.2008). “Under this standard, we afford no deference to the trial court's application of the law to the facts [.]” Id. (Citation omitted.)

We reverse a family court's award of attorney's fees following a custody dispute only when the family court abused its discretion in making the award. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky.2004).

Grandparents did not satisfy the requirements of de facto custodian status

Kentucky Revised Statute(s)(KRS) 403.270(1) controls the issue of de facto custody. Under that statute, the party claiming de facto custodian status must show the family court “by clear and convincing evidence” that he was “the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of ... one (1) year or more if the child is three (3) years of age or older[,]” as in the case sub judice. KRS 403.270(1)(a). The first step, therefore, is determining the date the one-year period began.

Before the family court, Grandparents claimed their period of de facto custodian care began on January 14, 2007.³ Because of the analysis undertaken by the family court, it was not necessary for it to determine whether the Grandparents were, in fact, “the primary caregiver” under Consalvi v. Cawood. Consalvi, 63 S.W.3d at 197–98 (emphasis in original; citation and internal quotation marks omitted). Instead, the family court presumed Grandparents were the primary caregivers and focused its legal analysis on the “tolling” provision of KRS 403.270(1)(a) which states: “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.”

Grandparents quoted Sherfey v. Sherfey as establishing two requirements for application of the tolling provision. 74 S.W.3d 777 (Ky.App.2002), overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky.2008). “First, the statute requires that the action be ‘commenced’ by the parent-not merely defended. Second, the statute requires the court appearance to be an action in which the parents seek to ‘regain custody.’ ” Id. at 781.⁴

Father argued that his actions in the divorce proceeding were sufficient under KRS 403.270(1)(a) to defeat the Grandparents' claim of de facto custodian status. The family court agreed with Father.

In pertinent part, the family court's order found that “[t]he record in this civil dissolution proceeding shows that [Father] has been active ... although his participation was pro se for almost the entire first year of the pendency of this action.” The family court cited Father's pro se filing on September 11, 2007, of a document he entitled “Motion Regarding Visitation and Custody” in which Father “request[ed] the court to change” the custody and visitation orders to grant him “joint custody w/custodial care to [Father.]” And while acknowledging that Father's document was procedurally defective, the family court relied on the fact that the document “was not filed in response to anything. Rather it was an action initiated by [Father] in an effort to regain custody.”

The family court also noted that on November 15, 2007, Father appeared in court, again pro se, and reminded the court of his pending “motion for order of visitation and custody.” The court responded that it would hear the custody issue at the final hearing.

Furthermore, the family court noted that in December 2007, Father retained counsel who filed an answer to the Grandparents' intervening complaint, specifically pleading that Father “objects to the award of temporary custody or permanent custody with the [Grandparents], because [Father] desires to have custody of his own son....”

The reasoning offered by the family court is that, even under Sherfey, “[c]ommencement of a legal proceeding to regain custody does not necessarily require the filing of a new court case by a parent.” We agree with this statement and further believe that Grandparents misread Sherfey.

In Sherfey, the child in question was thirteen years old and walked to his grandparents' home to escape the turbulent household of his parents. From June 18, 1998, until June 17, 1999, the parents did nothing whatsoever to regain custody. Then, the parents arranged, by the clandestine efforts of a third party, to forcibly remove the boy from his grandparents' home and take him to a camp in Florida. The grandparents immediately went to court and on July 17, 1999, obtained an order granting them custody. In July 2000, one of the parents collaterally attacked the custody order. Sherfey, 74 S.W.3d at 779–80.

The parents argued that the grandparents' period of de facto custodianship was interrupted for purposes of KRS 403.270(1)(a) by: (1) the forced removal of the boy from the grandparents, and (2) their court appearances to defend a juvenile petition and a domestic violence action brought as a result of that forced removal. Id. at 780. With regard to the first argument, we said the child's “one-month stay at [the Florida c]amp ... did not disqualify the grandparents [because that] nonconsensual transporting of [the child] was adjudged by the courts of Kentucky to be an act of domestic violence—not an abandonment of support by the grandparents.”

More to the point of the issues before us in this case, we addressed the Sherfeys' other argument that “a legal proceeding ha[d] been commenced by a parent seeking to regain custody of the child[.]” KRS 403.270(1)(a). After describing the two requirements quoted above and relied upon by Grandparents, we made a point of demonstrating how far short of those requirements the Sherfeys fell.

From the plain language of the statute, it is clear that [the Sherfeys] satisfied neither of these requirements. Not once during the two years [the child] spent with his grandparents did [the Sherfeys] initiate a legal action to regain custody of [their child]. In fact, it appears they voluntarily abandoned [the child], showing little concern for his daily well-being for nearly two years. Accordingly, we affirm the trial court's finding of de facto custodianship by the grandparents.

Id. at 781. The facts of the case before us are clearly distinguishable from Sherfey.

We conclude, as did the family court, that neither KRS 403.270(1)(a) nor Sherfey requires a parent to file a new and separate lawsuit in order to suspend the running of time needed to confer standing as a de facto custodian. In addition to Father's efforts noted by the family court, we believe others were overlooked.

Father's response to Mother's original petition specifically demanded custody. “All pleadings shall be so construed as to do substantial justice.” Kentucky Rules of Civil Procedure (CR) 8.06. Furthermore, if Mother's demand for custody is fairly called a claim of custody, Father's demand is fairly called a counterclaim. See CR 8.03 (“[T]he court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation”...