Blaine Van Gansbeke v. Bridget F. Van Gansbeke

• Court: Court of Appeals of Kentucky
• Decided: October 25, 2024
• Docket: 2023-CA-0942
• Status: Published

Opinion

RENDERED: OCTOBER 25, 2024; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0942-MR

BLAINE VAN GANSBEKE APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 12-CI-500563

BRIDGET F. VAN GANSBEKE APPELLEE

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.

ACREE, JUDGE: Appellant, Blaine Van Gansbeke, appeals the Jefferson Family

Court’s June 29, 2023 Order based, in part, on the report and testimony of a court-

appointed friend of the court. Because the family court violated Blaine’s statutory

right to a meaningful opportunity to challenge the friend of the court’s sources and

report, we vacate the order and remand for a new hearing. BACKGROUND

Blaine and Bridget Van Gansbeke were married on February 8, 2003.

They are the parents of twin daughters, S.V.G. and M.V.G., who were born in

2010. Bridget filed for divorce in the Jefferson Family Court in February 2012.

The court entered its decree of dissolution adopting the parties’ marital settlement

agreement in September 2013. By that agreement, the parties shared joint custody

of the twins, with Bridget as the primary residential custodian. The parties did not

agree to equal parenting time. The children were to reside primarily with Bridget.

The parties’ post-divorce relationship remained contentious. Both

allege the other failed to abide by the conditions of their agreement or with family

court orders. At one point, Blaine was granted an expansion of his parenting time

but, in 2019, Bridget moved to reduce it. This led to the parties’ participation in a

custodial evaluation with Drs. Marvin and McCrary. Both doctors created oral

settlement conference notes detailing their impressions.

Once the evaluation was completed, on August 19, 2020, the family

court entered an agreed order granting Bridget sole authority to make parenting

decisions and reducing Blaine’s parenting time to four overnights each month.

Blaine and the twins would engage in therapy proposed by the children’s therapist,

Dr. Hammon. The agreed order also required the parties to support and

accommodate the children’s academic, extracurricular, and religious activities.

-2- In January 2022, after one-and-a-half years operating under the agreed

order, Blaine moved the family court to again order the parties to mediation

regarding the parenting schedule and to revisit Bridget’s status as sole decision

maker. The family court granted the motion, but also appointed James K. Murphy

to serve as Friend of the Court (FOC) to investigate and make a report.

Much occurred over the next several months, but agreement was not

reached on every issue. In October 2022, the family court entered a pre-trial order

scheduling a one-half-day hearing for March 31, 2023. The order required the

parties to file and serve their respective witness and exhibit lists at least fourteen

(14) days before the hearing. The sequence of events that followed is significant.

On March 3, Blaine’s counsel asked Dr. Hammon for dates she would

be available for a deposition. Dr. Hammon said she did not believe her deposition

would be in the best interest of the twins. Bridget’s counsel also opposed the

deposition of Dr. Hammon. Blaine did not immediately press the issue.

On March 17, the parties filed their witness and exhibit lists. Neither

identified Dr. Hammon as a witness. However, both reserved the right to call

anyone as a rebuttal witness. Four days later, Bridget filed a motion for a

protective order to prevent Blaine from taking Dr. Hammon’s testimony.

On the same day, March 21, ten (10) days before the hearing, the FOC

filed his report, identifying Dr. Hammon among those he interviewed.

-3- On March 27, in accordance with KRS1 403.300(3), Blaine requested

the FOC to send him his file of underlying data, reports, including diagnostic

reports. Although the FOC made an attempt to send the requested data that day, he

mistyped Blaine’s counsel’s email address. Blaine did not receive the data until

the morning of the hearing, March 31.

On March 28, the family court entered an order that Blaine “may not

compel the testimony of Dr. Hammon by deposition or otherwise as the same is

contrary to the best interests of the children.”

On March 30, Blaine moved to exclude the FOC’s report and

testimony claiming he had too little time to review the report, and that both would

be based on inadmissible hearsay from Dr. Hammon. He also sought to exclude

evidence of the proceedings of the 2019 oral settlement conference, including the

notes taken by Drs. Marvin and McCrary, pursuant to KRE2 408, as inadmissible

statements made during settlement efforts. The court ruled after the hearing.

Blaine’s counselor was the only non-party witness to testify on March

31, so the hearing was continued until May 3 when the remaining witnesses,

including the FOC, gave additional proof.3 The hearing concluded that day.

1 Kentucky Revised Statutes. 2 Kentucky Rules of Evidence. 3 According to the inventory of the record on appeal, the circuit clerk did not transmit to this Court a copy of the video of any hearing. Our understanding of what occurred at the hearing is gleaned

-4- On June 6, 2023, before the family court decided the issues addressed

in the hearing, Blaine filed a motion to strike the FOC’s report and testimony

because he did not have a meaningful opportunity to challenge the FOC’s sources.

The family court entered an order on June 29, 2023, denying Blaine’s

motions regarding the FOC’s report and testimony, and denying Blaine’s motion to

remove the supervision requirements of visitation with his daughters.

Blaine appeals, raising seven arguments. We will address only those

necessary to our review.

STANDARD OF REVIEW

“[W]e may not set aside the family court’s factual findings unless they

are clearly erroneous.” Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007)

(citing Wheeler v. Wheeler, 154 S.W.3d 291, 296, (Ky. App. 2004)); CR4 52.01.

Review for clear error requires our determination whether substantial evidence

supports the trial court’s findings. CertainTeed Corp. v. Dexter, 330 S.W.3d 64,

72 (Ky. 2010) (quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)).

Substantial evidence is “evidence of substance and relevant consequence having

the fitness to induce conviction in the minds of reasonable men.” Smyzer v. B.F.

from other references in the record that was transmitted. “[I]t is an appellant’s responsibility to ensure that the record contains all of the materials necessary for an appellate court to rule upon all the issues raised.” Clark v. Commonwealth, 223 S.W.3d 90, 102 (Ky. 2007) (footnote and citations omitted). 4 Kentucky Rules of Civil Procedure.

-5- Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971). We review a family

court’s legal conclusions de novo. Marshall v. Marshall, 559 S.W.3d 381, 383

(Ky. App. 2018).

ANALYSIS

In terms of judicial error, Blaine’s seven (7) arguments fall naturally

into two categories: (1) violations of Blaine’s due process rights under KRS

403.300, and (2) erroneous rulings on evidence, sequestration of witnesses, and

findings of fact. Because we find merit in Blaine’s argument regarding the family

court’s due process violations (as expressed in his first four arguments), his

remaining arguments are moot.

1. The family court erred by allowing testimony and admitting report of FOC.

Family courts are authorized to order investigations and reports on

custodial arrangements, to be performed by a friend of the court or by another

agency selected by the court. FCRPP5 6(2)(f); KRS 403.300(1). Such reports

necessarily include first and second-level hearsay statements presenting due

process challenges. Section three of KRS 403.300 contains due process

protections that kick in once the FOC completes his report and files it with the

court. “If the requirements of subsection (3) are fulfilled, the investigator’s report

5 Kentucky Family Court Rules of Procedure and Practice.

-6- may be received in evidence at the hearing.” KRS 403.300(2). Some of these

protections arise before the hearing and some during it.

First is a notice requirement. “The clerk shall mail the [FOC’s6]

report to counsel and to any party not represented by counsel at least 10 days prior

to the hearing.” KRS 403.300(3). The statute will “allow the [FOC’s] report into

evidence only if the report is made available to the parties at least 10 days before

the hearing . . . .” Greene v. Boyd, 603 S.W.3d 231, 239 (Ky. 2020) (emphasis

added). That requirement was satisfied in this case when the report was sent to

Blaine on March 21, ten days before the hearing.

The next due process protection is a pre-hearing right to acquire the

written materials upon which the FOC relied to prepare his or her report. Upon

request, “[t]he [FOC] shall make available to counsel and to any party not

represented by counsel the [FOC’s] file of underlying data, and reports, complete

texts of diagnostic reports made to the investigator pursuant to the provisions of

subsection (2), and the names and addresses of all persons whom the investigator

has consulted.” Id. at 239-40. Providing this material is another required pre-

6 The word used in KRS 403.300 is “investigator.” In Greene v. Boyd, the Kentucky Supreme Court called this position “the court-appointed Friend-of-Court investigator (FOC) . . . .” 603 S.W.3d 231, 233 (Ky. 2020). This was obviously intended to distinguish a “friend of the court or de facto friend of the court” appointed by a judge pursuant to FCRPP 6(2)(f) from the “friend of the court” authorized by a fiscal court resolution pursuant to KRS 403.090(1). Greene was decided a mere five (5) months after adoption of the Kentucky Family Court Rules of Procedure and Practice. FCRPP 6. The rule itself fails to make the distinction.

-7- hearing predicate to admission of the FOC’s report in evidence at the hearing.

KRS 403.300(2), (3). Blaine argues that because the FOC failed to comply with

this requirement, the report and the FOC’s testimony should be stricken. We

disagree.

Our Supreme Court interprets the due process protections of KRS

403.300(3) as requiring “sufficient notice of the report and its sources and the

opportunity to refute them . . . .” Greene, 603 S.W.3d at 240 (emphasis added).

“[I]n all cases the family court should strive to allow the parties reasonable time to

exercise the ability to challenge the report’s sources.” Id. at 241. It is true that

Blaine did not receive the underlying data until March 31, the day the hearing

began. However, the FOC did not testify that day nor was his report offered as

evidence then. Blaine had more than a month to examine the underlying materials

before cross-examining the FOC on May 3. The communications glitch that

delayed the FOC’s delivery of the materials to Blaine did not deprive him of

“sufficient notice” of the report’s sources nor of “the opportunity to refute them[.]”

Id. at 240. However, the family court’s March 28, 2023 protective order

prohibiting Blaine from “compel[ling] the testimony of Dr. Hammon by deposition

or otherwise” did deprive him of that opportunity.

In Morgan v. Getter, the Kentucky Supreme Court made it very clear

that Blaine had a right to cross-examine Dr. Hammon:

-8- [T]he parties’ right to due process includes the right to cross-examine the authors . . . of evidentiary reports upon which the fact finder is entitled to rely. Not only is this result consistent with the holdings of other courts confronted by the issue, but it comports with KRS 403.090, KRS 403.290, and KRS 403.300 as well. Those statutes, while authorizing a custody-determining court to sua sponte request custodial investigations and other advice, all require that the parties be made aware of the court’s inquiries and be allowed to cross-examine the court’s sources of information. The parties’ right to due process requires no less.

441 S.W.3d 94, 112 (Ky. 2014) (citations omitted). The family court’s protective

order violated Blaine’s due process right to cross-examine a source of the FOC’s

report, the children’s own therapist – Dr. Hammon. As the Supreme Court put it, it

is “error to admit and consider statements contained within the FOC’s report

without giving the parties a meaningful opportunity to challenge the sources of

those statements.” Greene, 603 S.W.3d at 239. The family court here expressly

denied Blaine that opportunity altogether.

We are not persuaded by the family court’s explanation for denying

Blaine’s challenge to the FOC’s report and testimony. The family court said the

report “does not include any statements by Dr. Hammon, nor does it reflect any

information gleaned from Dr. Hammon.” However, the FOC expressly identified

Dr. Hammon as a professional he interviewed. Furthermore, not until Blaine

received the written materials underlying the FOC report did he learn Dr. Hammon

-9- refused to prepare a written report to the FOC. Whatever she had to say to the

FOC, she conveyed verbally.

There are references to Dr. Hammon’s viewpoints in the FOC’s report

which could only have been included as first or second-level hearsay. That is to

say, the source of the information was either Dr. Hammon’s verbal interview with

the FOC or second-level hearsay expressed by the parties or their children. For

example, the report says: “Dr. Hammon has worked and continues to work to

build the children’s trust and perhaps, in some way, that is threatening to Blaine.

The FOC . . . wishes to encourage that therapeutic bond.” Who but Dr. Hammon

told the FOC about her work to bond with the twins and how they reacted? Who

but Dr. Hammon is more likely to believe her bond with the children threatens

Blaine?

The FOC confirmed the obvious at the hearing – the testimony of the

children’s therapist is far from inconsequential. Prohibiting Blaine from exercising

the statutory right to have Dr. Hammon substantiate what she told the FOC in her

interview directly violates the due process necessary for Blaine to protect his right

to parent his children. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060,

147 L. Ed. 2d 49 (2000) (“The liberty interest . . . of parents in the care, custody,

and control of their children – is perhaps the oldest of the fundamental liberty

interests recognized by this Court.”).

-10- Bridget’s suggestion that Blaine waived the right to cross-examine Dr.

Hammon because he “never . . . issued a notice of deposition” is fallacious.

Although Greene indicates a party need not wait until the hearing to depose and

cross-examine the source of an FOC report, we conclude the right to confront such

sources at the hearing is not waived if no such pre-hearing effort is made. Greene,

603 S.W.3d at 239 (“parties can cross-examine the sources up until the time the

hearing begins”). Nevertheless, in this case, Blaine did make the effort to depose

Dr. Hammon before the hearing but neither she nor Bridget would cooperate.

Then, the family court’s pre-hearing protective order outright prohibited it.

Bridget’s other argument for waiver – Blaine’s failure to name Dr.

Hammon on his witness list – is similarly unavailing. “A party may not waive his

right of cross-examination prior to the hearing.” KRS 403.300(3). The statute thus

makes it impossible that Blaine waived his statutory right before the hearing

commenced. The statute prohibits it. That same provision also defeats the

argument that Blaine’s declination of a continuance constitutes a waiver.

On the other hand, the statute does not prohibit a waiver of this right

to confront the FOC’s sources once the hearing commences. Setting aside whether

this statutory right to confront witnesses in custody cases deserves the same

measure of protection as the Sixth Amendment right in criminal cases, we are

confident that waiver of the right “cannot be presumed from a silent record.” D.R.

-11- v. Commonwealth, 64 S.W.3d 292, 294 (Ky. App. 2001) (addressing waiver of

Sixth Amendment right to confront accusers). This record is silent on the issue

whether Blaine expressed a knowing, intelligent, voluntary waiver of the right to

cross-examine Dr. Hammon. To the contrary, his continued objection to the

FOC’s testimony and report based on deprivation of the right weighs against it.

Finally, this specific due process right to challenge the FOC’s sources

is sufficiently important that the Supreme Court said the law provides “ample

opportunity for the parties to challenge the sources of the FOC even after the

hearing is held[.]” Greene, 603 S.W.3d at 241. Blaine did present such a post-

hearing challenge. The family court erred by denying his challenges during and

after the hearing.

Because the family court violated Blaine’s statutory right to cross-

examine Dr. Hammon, the statutory requirements for admitting the FOC’s

testimony and report were lacking. Therefore, we vacate the family court’s June

29, 2023 order and remand for a new hearing.

2. Blaine’s remaining arguments are moot.

Blaine also argues the family court erred because it allowed

inadmissible evidence of settlement negotiations in violation of KRE 408. Bridget

responds by acknowledging it is “well settled that settlement negotiations are not

admissible” but she posits that the family court “did not admit such statements.”

-12- Because we are vacating the order and remanding the case for a new

hearing that protects Blaine’s due process rights, either party may seek to introduce

the evidence he or she deems appropriate. The family court’s rulings responsive to

a subsequent challenge to the evidence will be subject to the usual panoply of

appellate rights. The argument regarding the ruling in the prior hearing is moot.

Similarly, Blaine’s argument relating to the sequestration of witnesses

during the prior hearing is moot. Should the issue again arise, the family court can

find guidance in McAbee v. Chapman, 504 S.W.3d 18 (Ky. 2016).

Blaine complains the family court’s order includes numerous errors of

fact. But that order is set aside and the argument, like these others, is moot.

CONCLUSION

The Jefferson Family Court’s June 29, 2023 Order is hereby

VACATED and the case is REMANDED with instructions to conduct a new

hearing consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Hugh W. Barrow Mary Rives Chauvin Louisville, Kentucky Louisville, Kentucky

-13-