Asten Tapp v. Paul A. Garner

• Court: Court of Appeals of Kentucky
• Decided: January 28, 2021
• Docket: 2019 CA 000894
• Status: Unknown

Opinion

RENDERED: JANUARY 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-0894-ME

ASTEN TAPP AND KORTNEY TAYLOR-ANNE OSBORNE APPELLANTS

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JULIE HAWES GORDON, JUDGE ACTION NO. 14-CI-00232

PAUL A. GARNER AND DEBRA A. GARNER APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Asten Tapp appeals from the Daviess Family Court’s

order denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to alter,

amend, or vacate a March 7, 2014 order in which Paul A. Garner and Debra A. Garner (collectively the Garners) were granted temporary custody over B.C.O.

(child) and all subsequent orders entered after that time.

Asten and Kortney Taylor-Anne Osborne were married prior to

Kortney becoming pregnant with child, but they divorced prior to the birth of child

in April 2012. Under their marital settlement agreement, which was incorporated

into their dissolution decree, they agreed to joint custody, that Kortney would be

child’s primary residential custodian, and that Asten would have reasonable

visitation and pay $60 in child support each month.

After child was born, Kortney and child lived with the Garners, who

were Kortney’s mother and stepfather. Asten and his mother, Kim Tong, regularly

visited with child. A paternity action to establish child support was filed by the

Daviess County Attorney, and Asten was found to be the father of child and

ordered to pay child support. Asten and Kortney both struggled with substance

abuse issues, and Asten was incarcerated in early 2013 on drug charges.

On March 7, 2014, the Garners filed a verified petition for designation

as de facto custodians and to establish custody of child, an ex parte motion for an

emergency hearing, relief, and a temporary order, and a supporting affidavit. In

the petition, the Garners argued that for a period in excess of a year, they had been

the primary caregivers and primary financial supporters of child, explaining child

primarily resided with them since his birth and they met all of his financial needs

-2- with neither of his parents paying child support. The Garners argued Kortney

voluntarily relinquished physical custody of child to them and could not provide a

safe environment for child. They alleged various grounds as to why Kortney was

unfit to care for child.1 The Garners argued that Asten consented to child living

with them, was currently incarcerated, and had not exercised visitation with child.

The Garners argued that Asten and Kortney waived their superior right to custody

of child and asserted child remaining in the Garners’ care would be in his best

interest. They requested that they be designated as child’s de facto custodians, be

awarded joint custody, and named as his primary residential custodians, with Asten

and Kortney being restricted to only supervised visitation. In the ex parte motion,

the Garners sought to suspend Kortney’s visitation and parenting time and restrain

her from their home, workplaces, and taking child out of their custody.

Asten was named as a party in the petition and identified as being

incarcerated at the Fulton County Detention Center, and this address was provided;

Kortney’s address was listed as unknown. There was no certificate of service,

summons, or other proof that either Asten or Kortney was served with the petition,

ex parte motion, or supporting affidavit. No warning attorney was requested or

guardian ad litem appointed for Asten.

1 The specific grounds of the allegations of Kortney’s unfitness and the grounds for the ex parte request against her are not pertinent to this appeal.

-3- A brief ex parte hearing was held on March 7, 2014, at which Debra

testified consistent with her supporting affidavit. That same day, an order was

entered granting the ex parte motion and giving the Garners temporary sole

custody of child. This order did not name the Garners as de facto custodians.

Asten and Kortney were not served with the order.

On March 10, 2014, Kortney entered a pro se appearance. On April

3, 2014, an agreed order was entered between the Garners and Kortney. It

established the Garners as de facto custodians of child pursuant to Kentucky

Revised Statutes (KRS) 403.270, awarded them temporary custody of child, and

provided supervised visits for Kortney. Asten was not served with this order.

On or around September 1, 2015, Asten was released from custody

and immediately resumed visits with child. An order entered in the paternity case

on January 10, 2016, terminated Asten’s child support obligation based upon the

temporary custody order and Debra’s statement that she did not want child support

from Kortney or Asten.

About three years after Asten’s release and resumption of visitation

with child, on August 3, 2018, the Garners filed an ex parte motion for an

emergency hearing, relief, and for a temporary restraining order to suspend Asten’s

visits with child and restrict him to supervised visitation as supervised by Kim at

her home. In Debra’s supporting affidavit, she noted that she and Paul continued

-4- to meet all of child’s needs and child was now in first grade. Debra expressed

concern with Asten’s ability to properly supervise and care for child, noting that

Asten was unemployed, was recently arrested in Indiana on drug-related charges

and Asten had expressed his interest in getting child and keeping him at his home

in Indiana. Debra stated she was fearful that if Asten were able to take child to

Indiana they would have trouble getting child back. She stated that Asten was

trying to dictate when he would pick up child and how long he would keep him

and due to Asten’s increasingly threatening messages she was unable to allow

child to go on unsupervised visits with Asten.

On August 3, 2018, a hearing was held on the Garners’ ex parte

motion. The Garners explained that Asten was not served because he was in an

Indiana court at that time, addressing his Indiana criminal case. Asten had told

Paul the Indiana criminal case would be dropped because he did not consent to a

search during a traffic stop, but his vehicle was searched anyway. The Garners

stated that they had been de facto custodians since 2014 with Asten being served

by a jail deputy at that time.

The family court stated it would grant the motion, and it was making a

finding that not granting the motion at that time would seriously endanger child.

The proposed order was entered granting the Garners’ request to limit Asten to

-5- visitation supervised by Kim at her home, and Asten was provided a hearing date

of October 1, 2018. Asten was mailed these documents.

On August 10, 2018, Asten filed a motion to alter, amend, or vacate

through counsel. Asten requested that the ex parte order limiting his visitation be

set aside along with all prior orders for failure to provide him with proper notice.

He argued he was never served with the original petition even though the Garners

knew he was incarcerated and had the address for the detention center on the

petition, and since that time, the family court had entered various orders regarding

child without his knowledge or input in violation of CR 4. Asten requested that the

family court set aside the previous order naming the Garners as de facto custodians

and awarding them custody, vacate all other orders affecting his right to custody of

child, enter an award of attorney fees, and grant him sole custody of child.

On August 17, 2018, a hearing was held on Asten’s motion. Although

Asten continued to maintain he was not served with any pleadings previously, and

the Garners maintained that he had knowledge, the parties announced the

parameters of an agreement they had reached which would be submitted to the

court. Asten and the Garners personally indicated their agreement with the terms

counsel specified.

On September 4, 2018, an agreed order was entered between Asten

and the Garners as prepared by Asten’s counsel. Asten was granted visitation

-6- every other weekend, which would convert to a 2-2-3 schedule upon the dismissal

or not guilty verdict on the Indiana criminal charges with Asten getting every

Wednesday and Thursday with child and alternating weekends. Asten was

acknowledged as being a joint custodian with entitlement to child’s school and

medical records and to be listed as a parent on any forms pertaining to child.

On December 3, 2018, Asten, pro se, filed a notice for withdrawal of

counsel and entry of his appearance pro se. He explained his counsel failed to file

a motion for contempt against the Garners for repeatedly violating the agreed order

as he had requested and instead kept sending letters to the other counsel and billing

him for them. His counsel also filed a motion to withdraw which was later

granted.

Over the next couple of months, Asten filed additional pro se motions,

including a motion for contempt in which he alleged the Garners were not

honoring the agreed order. Asten also filed court records showing that the Indiana

criminal case against him was dismissed on November 28, 2018.

As pertinent to this appeal, on January 2, 2019, Asten, who remained

pro se, filed a motion to renotice the August 10, 2018 CR 60.02 motion, arguing

the motion was abated by and through his previous counsel. He challenged the

family court’s jurisdiction, arguing that Indiana had proper jurisdiction and he had

a right to have service of the petition before a custody determination was made

-7- under KRS 403.800-403.880. He asked for relief pursuant to CR 60.02(e) and (f),

stating that his constitutional rights to due process and the fundamental right to

parent were violated. Asten asked that the family court set aside the previous

orders as void, grant him attorney fees, and transfer jurisdiction over the case to

Indiana.

Asten filed an accompanying affidavit in which he disputed the

representations the Garners made in the 2014 petition, ex parte motion, and

Debra’s affidavit. He contested the factual basis for the Garners qualifying as de

facto custodians in 2014, alleging that Kortney was raising child with the Garners’

help and that he was actively involved in visiting child and paying child support

until he was incarcerated, with Kim paying child support on his behalf after his

incarceration in 2013. He explained that although he learned the Garners had

temporarily taken over caring for child in 2014, he did not know they had been

established as child’s de facto custodians. Asten explained that he wanted to

provide for child, and after his release from jail he offered Paul child support for

child but after repeated refusals started a college fund for child which at the time of

filing contained $3,953.56. Asten stated that he provides for child when child is in

his care and desires more parenting time. He argued the Garners have been very

difficult to work with and have repeatedly violated the agreed order.

-8- Later, Asten requested a continuation of the hearing on this motion in

order to obtain counsel, and it was rescheduled.

On March 11, 2019, the hearing was held before the family court.

The court heard arguments by both parties, and the Garners submitted a tendered

order. At the conclusion of the hearing, the family court announced that it was

satisfied that the agreed order was the resolution of the motion to alter, amend, or

vacate and it would make its order to that effect final and appealable and deny the

Garners attorney fees because Asten had a colorable argument. Asten stated that

he planned to hire counsel.

On March 18, 2019, Asten, who was still pro se, filed a response and

objections to the tendered order, objecting to the Garners’ counsel proposing what

the family court should order, continuing to argue that he was never properly

served before the 2014 orders were entered, objecting that the Garners were never

named as de facto custodians, and objecting to the entry of the ex parte order

against him.

That same day, the family court denied Asten’s motion by signing the

tendered order. The family court explained that the action was properly

commenced where no order or judgment was sought against Asten in the March 7,

2014 proceeding. As to Asten’s argument that the family court did not have

subject matter jurisdiction and personal jurisdiction over him, it concluded this

-9- argument was waived by the combined actions of him entering his appearance,

filing his motion, and then negotiating an agreement with the Garners which was

filed in court without first obtaining an order to permit the sufficiency of service

argument to be held in abeyance.

On March 26, 2019, Asten filed a pro se motion to alter, amend, or

vacate the March 18, 2019 order. Asten argued that it was improper for the family

court to adopt the tendered order rather than rendering its own judgment, requested

specific findings, and continued to argue the underlying merits of his lack of

service argument, including that his attorney assured him that the CR 60.02 motion

was held in abeyance and could be refiled.

Following a hearing during which Asten’s oral motion for a

continuance was denied, on April 29, 2019, in an amended order, the family court

found that Asten’s objections did not relate to errors in the order but were

continued arguments about the purported lack of service on him, and his argument

that prior counsel made false statements about the issue of an abeyance did not

relate to the court’s decision. The family court denied Asten’s motion, denied the

Garners’ motion for attorney fees, and declared the order to be final and appealable

with no just cause for delay.

Asten retained counsel on appeal and argues that the family court

erred in denying his CR 60.02 motion by concluding: (1) the action was properly

-10- commenced without personal service on Asten; and (2) Asten waived his

insufficiency of service claim by entering an appearance and entering an agreement

with the Garners. Central to these arguments is Asten’s allegation that the family

court never made appropriate findings from which it could conclude that the

Garners were child’s de facto custodians.

We review the family court’s denial of Asten’s CR 60.02 motion for

abuse of discretion. Kerr v. Osborne, 305 S.W.3d 455, 459 (Ky.App. 2010).

We affirm because while the issue of appropriate personal service on

Asten was contested and was an appropriate ground for bringing a CR 60.02

motion initially, Asten waived his insufficiency of service of process claim by

entering into a negotiated agreement with the Garners which resolved the dispute.

Asten additionally submitted to the authority of the court in this matter by entering

into the agreed order without reserving any rights to pursue his earlier CR 60.02

motion. As explained in Brown v. Fulton, Hubbard & Hubbard, 817 S.W.2d 899,

900 (Ky.App. 1991), when parties enter into an agreed order, this is a clear

indication of their voluntary submission to the court’s authority and acts as a

waiver of any previous objection to service.

Finally, in the agreed order which the parties submitted, Asten agreed

to shared custody. This was either an acknowledgment that the Garners were de

facto custodians of child or functioned as a waiver of Asten’s superior right to

-11- custody as child’s parent. While permanent custody was not determined through

the agreed order, rights and responsibilities were established for each party in a

manner designed to maximize the best interests of child.

As a practical matter, the Garners, Asten, and child all benefited from

the agreed order. The Garners received recognition of the ongoing important role

they were playing in child’s life and certainty of the parameters of Asten’s role in

child’s life. Asten had his parental rights and the importance of his role as father

recognized, rather than potentially being relegated to having a more peripheral role

in child’s life based on his absence and pending criminal charges. The child

gained the certainty of knowing where he would be and when, as well as an

increased opportunity to develop his relationship with his father while also

maintaining the security of life with the people who had functioned as his parents

for years. This was a win-win scenario.

Although it might have been appropriate to pursue a resolution

pursuant to the previous CR 60.02 motion had the parties been unable to finalize a

written agreement, after their agreed order was signed and filed with the family

court, Asten’s previous arguments were waived with his submission of the agreed

order and its entry by the court. While we understand that Asten is unhappy with

perceived violations of the agreed order, this does not provide a justification for

-12- undoing the agreed order and does not give Asten the right to pursue his original

claims relating to lack of service.

This does not mean that Asten has no recourse. Asten may seek

enforcement of his rights under the agreed order. Alternatively, he may seek to

modify the agreed order, either as to temporary custody pursuant to KRS

403.280(6) or timesharing pursuant to KRS 403.320(3). See generally Pennington

v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). Asten may also seek a permanent

custody order rendered in his favor pursuant to KRS 403.270.

We caution that at this juncture the Garners have equal standing and

are entitled to equal consideration for custody as Asten. KRS 403.270(1)(b)-(2).

Pursuant to KRS 403.270(2), there is a “presumption, rebuttable by a

preponderance of evidence, that joint custody and equally shared parenting time is

in the best interest of the child.” However, the best interest of the child could

certainly support a timesharing arrangement that is not equal. A reduction in

timesharing may still constitute reasonable timesharing under KRS 403.320.

French v. French, 581 S.W.3d 45, 50 (Ky.App. 2019).

Accordingly, we affirm the Daviess Family Court’s order denying

Asten’s CR 60.02 motion.

ALL CONCUR.

-13- BRIEF FOR APPELLANT ASTEN BRIEF FOR APPELLEES: TAPP: Steven Russell Dowell Sara Elizabeth Collins Owensboro, Kentucky Louisville, Kentucky

-14-