Angela J. Watkins v. Vanna R. Brittain

• Court: Court of Appeals of Kentucky
• Decided: April 20, 2023
• Docket: 2022 CA 000683
• Status: Unknown

Opinion

RENDERED: APRIL 21, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0683-MR

ANGELA J. WATKINS APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE CARL D. DEVINE, JUDGE ACTION NO. 22-CI-00968

VANNA R. BRITTAIN; ALEXUS T. WALKER; AND DEMONTREY A. NEAL APPELLEES

OPINION VACATING AND REMANDING

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BEFORE: ACREE, DIXON, AND JONES, JUDGES.

JONES, JUDGE: Appellant, Angela Watkins, pro se, appeals from an order of the

Fayette Circuit Court sua sponte denying her petition for grandparent visitation.

Because the circuit court improperly dismissed the petition sua sponte, we vacate

and remand for further proceedings. I. BACKGROUND

Appellant (“Watkins”) is the maternal grandmother of the minor child,

J.N. Appellees, Demontrey Neal and Alexus Walker, are the biological parents of

J.N. Appellee (“Brittain”) is the paternal great-grandmother. During the pendency

of a juvenile matter involving the child in 2017, Brittain was awarded permanent

sole custody of the child, with visitation afforded to the biological parents.

On September 2, 2021, Watkins filed her first petition for grandparent

visitation. Brittain filed a motion to dismiss the petition. The circuit court

conducted a hearing on November 5, 2021, and subsequently entered an order

including findings of fact which granted Brittain’s motion and dismissed the

petition on November 23, 2021. That order was not appealed.

On April 8, 2022, Watkins filed a second petition for grandparent

visitation in a new action, Case No. 22-CI-00968. (Record (“R.”) at 7.) On May

11, 2022, the circuit court dismissed the petition sua sponte, stating that this

precise issue had already been heard and dismissed in the previous action.1 (R. at

14.) This appeal followed. The only appellee’s brief received was filed by

Brittain.

1 The first action, Case No. 22-CI-02674, was heard by the Honorable Kathy Stein. Watkins filed her second petition following the appointment of the Honorable Carl Devine to the Fayette Circuit Court, Sixth Division.

-2- II. STANDARD OF REVIEW

We review the dismissal of a petition de novo, without deference to

the trial court decision, as it is purely a question of law. See, e.g., Mitchell v.

Coldstream Laboratories, Inc., 337 S.W.3d 642, 645 (Ky. App. 2010) (adopting a

de novo standard for review of a motion to dismiss generally); Fox v. Grayson, 317

S.W.3d 1, 7 (Ky. 2010) (adopting a de novo standard of review of a motion to

dismiss for failure to state a claim). In this case, the sole issue we consider, as a

matter of law, is whether the circuit court properly dismissed this petition for

grandparent visitation when it did so sua sponte without a hearing or notice to the

petitioner. We hold that it did not.

III. ANALYSIS

Generally, it is improper for circuit courts to dismiss petitions or

complaints sua sponte, unless the court lacks subject matter jurisdiction. Storer

Communications of Jefferson County., Inc. v. Oldham County Bd. of Educ., 850

S.W.2d 340, 342 (Ky. App. 1993); see also Doster v. Kentucky Parole Bd., 308

S.W.3d 231, 233-34 (Ky. App. 2010). There is no question that circuit courts have

subject matter jurisdiction over petitions for grandparent visitation; both parties

correctly note that KRS2 405.021 affords it.

2 Kentucky Revised Statutes.

-3- Even in the circumstances in which a sua sponte dismissal by a circuit

court with subject matter jurisdiction may be appropriate, the law prescribes

minimum requirements for the circuit court to follow to adhere to the tenets of due

process and protect the plaintiff or petitioner from undue prejudice. KY. CONST. §

1-2; U.S. CONST. amend. XIV; see Fourroux v. City of Shepherdsville, 148 S.W.3d

303, 305 (Ky. App. 2004). Those minimal procedures include: (1) service of the

complaint or petition; (2) notification to all parties of intent to dismiss; (3)

providing the petitioner or plaintiff with a chance to amend their pleading or

respond to the notification; (4) a chance for the opposing party to respond; (5) and

if dismissed, reasons for the dismissal. Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky.

App. 1987) (citing Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983)). In

applying the Gall factors, we have stated that “[w]hile a court might be justified in

using its inherent powers to dismiss sua sponte for lack of subject matter

jurisdiction, it is fundamental that a trial court has no authority to otherwise

dismiss claims without a motion, proper notice and a meaningful opportunity to be

heard.” Storer Communications, 850 S.W.2d at 342.

Furthermore, in matters of grandparent visitation, Kentucky courts

have held that the need for a circuit court to hold an evidentiary hearing and enter

findings of fact is heavily implied by KRS 405.021, though it is not explicitly

stated there. K. C. O. v. Cabinet for Health & Fam. Servs., 518 S.W.3d 778, 785

-4- (Ky. App. 2017) (holding that “an evidentiary hearing at which witnesses are

subject to cross-examination and after which a judge enters findings of fact and

conclusions of law determining the child’s best interest will be served by granting

visitation, [] appears to be the only reasonable way a grandparent may meet his

statutory burden”) (footnotes omitted); see VanWinkle v. Petry, 217 S.W.3d 252,

258 (Ky. App. 2007) (determining that a circuit court cannot increase grandparent

visitation sua sponte without a hearing); see also, e.g., Thomas v. Phillips, No.

2017-CA-000127-ME, 2018 WL 4191114, at *2 (Ky. App. Aug. 31, 2018)

(concluding that a petition for grandparent visitation was improperly dismissed sua

sponte by the circuit court without conducting an evidentiary hearing or

considering the merits of the petition).3

IV. CONCLUSION

In the present case, there was no motion to dismiss before the circuit

court, there was no service of the petition, there was no notification of intent of

dismissal, and there was no opportunity for Watkins to respond or be heard.

Furthermore, the circuit court made no findings of fact, and, most concerningly,

there was no hearing of any kind.4 Since subject matter jurisdiction is not

3 We cite this unpublished opinion for reference as persuasive, nonbinding authority. Rules of Appellate Procedure (“RAP”) 41. 4 We will not consider Brittain’s argument that the order of dismissal should be upheld on the basis that the November 23, 2021, order is res judicata as to the May 11, 2022, order. Specifically, Brittain maintains that the circuit court rightfully concluded that the second petition

-5- implicated in this case, it is clear that the circuit court erred when it dismissed this

petition sua sponte. Accordingly, we vacate the May 11, 2022, order and remand

this case to the circuit court for further proceedings consistent with this Opinion.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE VANNA R. BRITTAIN: Angela J. Watkins, pro se Nicholasville, Kentucky Janet Humphrey Cole Nicholasville, Kentucky

should be barred by issue and claim preclusion. (Appellee’s Brief at 5.) However, res judicata is an affirmative defense to be considered by the circuit court after being asserted in a responsive pleading and addressed in a hearing. See Sedley v. City of W. Buechel, 461 S.W.2d 556, 559 (Ky. 1970).

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