Mullins v. Picklesimer, No. 2008-SC-000484-DGE (Ky. 1/21/2010)
| Decision Date | 21 January 2010 |
| Docket Number | No. 2008-SC-000484-DGE.,2008-SC-000484-DGE. |
| Parties | Arminta Jane MULLINS, Appellant, v. Phyllis Dianne PICKLESIMER, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
We are called upon to determine whether the trial court erred in awarding joint custody of a child to the biological mother and her former samesex partner. We adjudge that the trial court properly granted CR 60.02 relief regarding the parties' agreed judgment of custody on grounds that it was based on falsified evidence and fraud. We further adjudge that the trial court properly found that Appellant had standing to seek custody of the child and that the natural mother waived her superior right to sole custody of the child in favor of a joint custody arrangement with Appellant. Hence, we affirm the Court of Appeals in part as to the parties' agreed judgment of custody, and reverse in part as to its finding of no waiver and reinstate the judgment of the Garrard Circuit Court.
Phyllis Dianne Picklesimer (hereinafter "Picklesimer") and Arminta Jane Mullins (hereinafter "Mullins") were involved in a relationship and lived together as a couple for nearly five years. During that time, the couple decided they wanted to have a baby? Picklesimer and Mullins worked together to find a sperm donor that had characteristics closest to Mullins. Once a sperm donor was chosen, Picklesimer was artificially inseminated and became pregnant. Mullins was present for the insemination of Picklesimer.
The pregnancy was difficult and Picklesimer was hospitalized for the last month of the pregnancy. On May 31, 2005, Zachary Alexander Picklesimer-Mullins was born. Mullins and her mother, Nancy Mullins, were present for the birth. The parties jointly made the decision regarding the child's surname, and the name Zachary Alexander Picklesimer-Mullins was listed on the birth certificate.
The parties had difficulty with their relationship during the pregnancy and separated for a short time. Picklesimer claimed Mullins had an affair during this time, which Mullins denied. The parties reconciled prior to the birth of Zachary, continuing with their plan to raise the child together as a family.
Zachary was born two months premature, which resulted in the infant being placed in the neonatal unit of the hospital for two months. During this time, both parties went to the hospital to provide care for Zachary.
Mullins works as a police detective, and Picklesimer is employed as a nurse. After Picklesimer's maternity leave was up, Mullins took a one-month leave to care for the baby. It is undisputed that both parties provided for the care and financial support of Zachary. Zachary began calling Picklesimer "mommy" and Mullins "momma." When both parties went back to work, Mullins' mother took care of Zachary while they were at work.
As Zachary became older, Mullins became concerned regarding her legal rights to Zachary. She expressed this concern with Picklesimer, specifically what rights would she have to Zachary if something happened to Picklesimer or if Zachary needed medical treatment. Mullins ultimately contacted attorney William Erwin concerning her legal rights. Mullins and Picklesimer met with Erwin on two occasions. On the first occasion, Erwin discussed with them their legal rights regarding the care of Zachary and the legal documents that could protect Mullins' interest regarding Zachary. Picklesimer testified that Erwin specifically informed her that he was representing Mullins only in the matter. Picklesimer and Mullins met with Erwin a second time to review and sign the legal documents that he had drafted. It is undisputed that the parties signed the following documents on January 20, 2006: petition for custody; entry of appearance and consent to custody; and agreed judgment of custody. The documents stated that Mullins was the de facto custodian of Zachary that Mullins was his primary caregiver and primary financial supporter for a period of time not less than six months from the date of his birth.
Even though the parties were living in Lincoln County, the petition and entry of appearance were filed in the Garrard Circuit Court without objection by either party. Without an evidentiary hearing, depositions, or any form of evidence taken prior thereto, the trial court signed the agreed judgment and entered the same on February 3, 2006. No appeal was filed from this judgment.
The parties lived together with Zachary until either some time in February, after the agreed judgment was entered, or until April of 2006.1 However, until September 2006, the parties continued to exercise timesharing on an equal basis with Zachary. Some time in September 2006, Picklesimer refused to allow Mullins to have any further contact with Zachary unless Mullins visited him at Picklesimer's home. Picklesimer testified that Mullins had violated their verbal agreement to not leave Zachary with anyone other than a family member. Mullins maintained that Picklesimer refused to allow her to see Zachary because she had a problem with Mullins' new relationship with another woman. Picklesimer admitted she had a problem with Mullins' new relationship with another woman and admitted to telling Mullins, "We had him for us, not for you and her" and "I'm not going to share him with you to have a life of your own."
As a result of being denied visitation with Zachary, Mullins filed a motion for joint care, custody and control of Zachary and requested that she be declared his primary residential custodian. Picklesimer responded with a motion to dismiss, arguing lack of jurisdiction and improper venue. In the alternative, Picklesimer filed a motion to set aside the agreed judgment of custody pursuant to CR 60.02 on grounds that it was based on fraud or mistake. Prior to the hearing Oil these motions, Mullins filed a motion for sole custody of Zachary because Picklesimer unilaterally withheld Zachary from Mullins and was not acting in the best interests of Zachary.
The trial court referred the matter to a domestic relations commissioner ("DRC") who held a hearing on the issues on November 6, 2006. Picklesimer, Mullins, and Mullins' mother were the only witnesses at the hearing. The DRC subsequently issued his findings of fact, conclusions of law, and recommendations. The DRC granted Picklesimer's motion to set aside the agreed judgment on grounds of Mullins' failure to qualify as a de facto custodian, but found that Picklesimer waived her superior right to custody in favor of Mullins as a joint custodian. The DRC then recommended that the parties be awarded joint custody of Zachary, with Picklesimer being designated primary residential custodian. Both parties filed exceptions to the DRC's report. On December 1, 2006, the trial court overruled both parties' exceptions and adopted the findings of fact and recommendations of the DRC.
Picklesimer appealed to the Court of Appeals, and Mullins filed a cross-appeal. Picklesimer argued on appeal that the Garrard Circuit Court lacked jurisdiction and venue to issue the custody order, that Mullins lacked standing to pursue custody, and that the trial court erred in finding that she waived her superior right to custody. Mullins argued that the trial court erred in granting the CR 60.02 motion invalidating the February 3, 2006 agreed judgment of custody. The Court of Appeals rejected Picklesimer's argument that the Garrard Circuit Court lacked jurisdiction and venue. The Court of Appeals also rejected Mullins' argument that the trial court erred in setting aside the agreed judgment of custody, agreeing with the trial court that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However, the Court of Appeals reversed the trial court's finding that Picklesimer waived her superior right to custody of Zachary. Because the Court adjudged that Mullins was not Zachary's de facto custodian and Picklesimer had not waived her superior right to custody, the Court of Appeals concluded that Mullins did not have standing to pursue custody of Zachary. The case is now before us upon the granting of Mullins' motion for discretionary review.
At the outset, we note that to qualify as a de facto custodian in Kentucky, one must be "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 years of age . . . ." KRS 403.270(1)(a). It has been held that parenting the child alongside the natural parent does not meet the de facto custodian standard in KRS 403.270(1)(a). Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky.App. 2001), abrogated on other grounds by Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Rather, the nonparent must "literally stand in the place of the natural parent." Id. Although Mullins was providing care and financial support for Zachary, it was undisputed that Mullins did not have de facto custody status regarding Zachary because she was co-parenting the child with Picklesimer. Picklesimer maintains that once the court determined Mullins was not a de facto custodian, Mullins no longer had standing to pursue custody on any other grounds. We disagree.
Prior to 2004, standing to bring a custody action was limited by KRS 403.240 to "a parent, a de facto custodian of the child, or a person other than a parent only if the child is not in the physical custody of one of the parents." B.F. v. T.D., 194 S.W.3d 310, 310-11 (Ky. 2006) ()2;...
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