Oster v. Oster

• Decision Date: 18 July 2014
• Docket Number: No. 2013–CA–001028–ME.,2013–CA–001028–ME.
• Citation: 444 S.W.3d 460
• Parties: Alan OSTER, Appellant v. Paula OSTER, Appellee.
• Court: Kentucky Court of Appeals

444 S.W.3d 460

Alan OSTER, Appellant

v.Paula OSTER, Appellee.

No. 2013–CA–001028–ME.

Court of Appeals of Kentucky.

July 18, 2014.

Allen McKee Dodd, Jacob W. Crouse, Richard I. Williams, Jr., Louisville, KY, for Appellant.

No brief filed.

Before CLAYTON, COMBS, and NICKELL, Judges.

OPINION

NICKELL, Judge:

Alan Oster appeals from an order entered by the Jefferson Family Court reinitiating contact between his two sons and their mother, his former wife, Paula Oster. Upon careful review, we reverse and remand for further proceedings consistent with this Opinion.

As a preliminary matter, neither party is in compliance with CR¹ 76.12. Paula, a non-attorney who represented herself often in the trial court, has chosen not to file an appellate brief.² We could view her decision a confession of error and rule in Alan's favor without considering the merits. CR 76.12(8)(c)(iii). However, Kentucky courts have held imposition of this sanction is inappropriate when a child's custody is at stake. Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky.1971) ; Borjesson v. Borjesson, 437 S.W.2d 191, 193 (Ky.1969). While this is not a custody matter—Paula has asked only that she be allowed to resume contact with her children—we will nonetheless consider the merits.

Alan's brief does not comply with CR 76.12(4)(c)(v) which requires each argument in the appellant's brief to begin with “a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” Alan has raised four issues but none begins with a statement of preservation. Case law is abundantly clear that we are not obligated to search the record to locate where an issue may have been preserved. See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky.2003) ; Robbins v. Robbins, 849 S.W.2d 571, 572 (Ky.App.1993). Pursuant to CR 73.02(2), when a party fails to comply with the appellate rules, we are authorized to dismiss the appeal, strike pleadings and briefs, impose fines, or craft “further remedies.” In light of the seriousness of this appeal, and our own search of the record, we will not impose sanctions but instead caution counsel to adhere to the rules of appellate practice in the future.

This is not the first time Alan and Paula have sought relief in this Court. In fact, this is the sixth case number assigned to these parties since 2009. The litigation was previously chronicled in Oster v. Oster, 2012 WL 5457325, Case Nos. 2009–CA–000135–ME and 2009–CA–001444–ME (Ky.App., November 9, 2012, unpublished). Rather than recounting the troubling history of these parties, we emphasize only those facts essential to an understanding of the specific issues at hand.

Alan and Paula married in 1998 and are the biological parents of two boys born in 2000 and 2002. Their divorce became final in March of 2005. On December 19, 2008, the Jefferson Family Court granted Alan sole custody of the boys; permitted Paula only therapeutic visitation with the boys through the boys' therapist; and ordered Paula to pay Alan $60.00 in monthly child support.³ Paula has not seen the boys since December 2008.

Alan is an orthopedic surgeon. He remarried in April of 2005. He and his new wife, Jade, have three children of their own and live in Louisville, Kentucky, with the two boys from his marriage to Paula. The boys are excelling in all aspects of life. Both have expressed a desire to see their mother.

Paula graduated from medical school in 2004, but never completed her boards. While in college, she suffered a closed head injury that mental health experts believe has culminated in a host of issues including impulsivity; a paranoid preoccupation with the notion that others are against her; and, an inability to respect boundaries, remain calm, control anger and frustration, function independently, and manage mood and behavior. She has been diagnosed with anxiety disorder, NOS; borderline personality disorder ; and, obsessive/compulsive disorder. Paula is unemployed and relies on her twin sister for financial support.

On January 4, 2009, Paula copied Alan on an e-mail she sent to her sister about a non-custodial parent who killed his son rather than paying child support. The e-mail triggered entry of a domestic violence order (DVO) against Paula on March 10, 2009. A panel of this Court affirmed the DVO's entry in Oster, at *9. On March 20, 2012, the DVO was extended and reissued for another three years.

With that brief history in mind, we focus on the most recent events that led the family court to enter the “Order on Reinitiation of Contact” challenged by Alan in this appeal. On July 20, 2011, an order was entered stating in relevant part:

Conclusions of Law

The court believes that it would be in the best interest of the children to have a relationship with their mother if Paula can demonstrate that she no longer poses a threat to the children's well-being. Given the substantial progress the children have made since Paula has been removed from their lives, it is important to re-introduce her in a way that minimizes the risk to the children.

Paula has significant mental health issues and she has failed to use the last few years to accomplish anything of value in her professional life or toward her personal growth.

For Paula to have contact with her children, she must comply with all recommendations as set out by Dr. [Kaveh] Zamanian. Dr. Zamanian is appointed to oversee Paula's re-introduction into the boys' lives, and Paula must comply with all directives. She is to have a psychiatric evaluation, and must take any prescribed medications as prescribed. She must continue in treatment with a therapist recommended by Dr. Zamanian. Paula must demonstrate the ability to comply with Dr. Zamanian's instructions and court orders. She must work cooperatively with all treatment providers as recommended by Dr. Zamanian. Failure to cooperate will effectively end efforts to reunify Paula with the boys anytime in the foreseeable future.

It is important that Paula appreciates the opportunity she has to become a part of her children's lives again. Her failure to acknowledge her problems or accept responsibility for her actions has only lengthened the time she has been removed from their lives. She needs to actively concentrate on understanding and improving herself so she can be a positive influence on her boys.

...

Paula's failure to comply with court orders, fabrication of allegations, and repeated petitions for legal relief without compliance with previous directives has (sic) greatly increased the costs of this action. Her behavior has also unnecessarily utilized the resources of social services and the police at no cost to her.

All of Paula's financial needs are met by her family. She does not appear to have any incentive to obtain employment as either Alan bears the cost of all expenses relating to her motions or her legal fees are paid by her family.

It is inequitable to allow Paula to remain unemployed—especially if she is so close to obtaining her residency, as she testified. Paula is either significantly mentally ill, and therefore is unable to obtain a position in the medical field and is in need of serious treatment, or she is fully capable of finding some type of employment commensurate with her training. It is also inequitable to require Alan to bear the financial cost of ongoing litigation which is primarily a result of Paula's refusal to adequately address her mental health needs.

...

Based on the testimony, applicable statutes, review of the file, and the Court being sufficiently advised, IT IS HEREBY ORDERED that:

1. Paula's contact with the parties' children shall be at the direction of Dr. Zamanian. The parties shall cooperate fully with Dr. Zamanian's recommendations and comply with all treatment providers and their recommendations.

2. Dr. Zamanian will contact the parties within fourteen days of entry of this order to initiate the process.

3. Dr. Zamanian's future costs for directing Paula's re-integration into the children's lives shall be apportioned 70% to Alan and 30% to Paula.

4. Alan is responsible for $5,000 toward Paula's attorney's fees. Paula is responsible for the balance of fees and will be responsible for any future attorney's fees and costs (absent some extraordinary circumstance).

5. Paula is responsible for $562 toward Alan's attorney's fees due to her failure to comply with discovery requests. Counsel for Alan submitted an affidavit regarding fees at the direction of the Court.

6. Counsel may move for common law judgments, if needed.

7. This is a final and appealable order.

(Emphasis in original.) On May 29, 2012, Paula filed a NOTICE–MOTION–ORDER seeking an order to: require child support to be forwarded through a third party; clarify the requirements for visitation and/or reunification; schedule a hearing for immediate visitation; and appoint a parenting reunification facilitator.

On July 25, 2012, the trial court convened a hearing that did not finally conclude until February 1, 2013. Testimony was heard on four separate days. Witnesses were Dr. Zamanian, the court-appointed evaluator; Dr. James Bloch, a psychologist and Paula's treating therapist; Terry Fontenot, the boys' therapist; Paula; and Alan. All the witnesses—including Paula—testified she had not fully complied with Dr. Zamanian's recommendations.

On March 14, 2013, the trial court entered a twelve-page order stating, “[b]y all accounts, Paula has not complied with all of the recommendations of Dr. Zamanian as set out in the July 2011 order.” Despite that statement, the court set sail toward reunifying mother and sons. On the record presented to us, we simply cannot affirm this change in course.

The trial court's 2011 order stated in no uncertain terms, “[f]or Paula to have contact with her children, she must comply with all recommendations as set out by Dr. Zamanian.” Those recommendations were included in a report dated March 18, 2011, and included five items:

1. For the next four months Ms. Oster

...