RENDERED: JANUARY 21, 2021 TO BE PUBLISHED
Supreme Court of Kentucky 2018-SC-0478-DG
BRYAN KEITH SIMMS, APPELLANT EXECUTOR OF THE ESTATE OF JOHN ROBERT SIMMS
ON REVIEW FROM COURT OF APPEAL NO: 2017-CA-0306-DG V. SCOTT CIRCUIT COURT NO: 15-CI-0339
ESTATE OF BRANDON MICHAEL BLAKE; APPELLEES MELANIE GOSSER BLAKE, INDIVIDUALLY; MELANIE GOSSER BLAKE, CO- ADMINISTRATOR OF THE ESTATE OF BRANDON MICHAEL BLAKE; DEREK BLAKE, INDIVIDUALLY; AND DEREK BLAKE, CO-ADMINISTRATOR OF THE ESTATE OF BRANDON MICHAEL BLAKE AND FRED PETERS
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
In this probate case, John Robert Simms,1 challenges the trial court’s
ruling that KRS2 391.033 and KRS 411.137 (together “Mandy Jo’s Law”)
precluded him from recovering his intestate share of the settlement proceeds
1 John Robert Simms passed away on October 5, 2019. Bryan Keith Simms was appointed his Executor on November 6, 2019. Bryan Keith Simms has been substituted as Appellant in the pending appeal.
2 Kentucky Revised Statutes. connected with the wrongful death of his son, Brandon Michael Blake.
Simms’s assertions of error fall into three general categories. First, he asserts
that the circuit court’s failure to remove Appellees, Melanie and Derek Blake,
as co-administrators of Brandon’s estate tainted the ensuing proceedings.
Second, Simms raises a number of procedural errors concerning the standard
of proof, burden of proof, and the operation of the hearing. Finally, Simms
asserts that he should have prevailed on the merits. On this final point,
Simms raises two alternative arguments: (1) the trial court clearly erred when it
found that he “willfully abandoned” Brandon or (2) Appellees are estopped from
claiming abandonment because they asked him to stay away from Brandon.
We conclude that the trial court correctly interpreted and applied Mandy
Jo’s Law in this case. Thus, we affirm the Court of Appeals. Further, because
the construction of Mandy Jo’s Law is a matter of first impression in this
Court, we provide guidance as to the proper procedure lower courts should
follow in such cases going forward.
I. FACTUAL BACKGROUND
This dispute arises from the death of Brandon Michael Blake. Brandon
was born to John Robert Simms and Melanie Gosser (now Melanie Gosser
Blake) in August 1989. John and Melanie were not married and never
cohabitated. At the time of Brandon’s birth, Simms was married to another
2 woman and did not take steps to establish a legal parental relationship with
Brandon.3
From his birth until 1997, Brandon lived with Melanie in Louisville. And
although Simms did not seek formal visitation, he did provide some amount of
support to Melanie and spent time with Brandon on occasion.4 Simms testified
that he saw Brandon weekly when they both lived in Louisville and stated that
they often rode bikes at local parks. Melanie, in contrast, testified that Simms
rarely saw Brandon. Both parties agree that Brandon spent some amount of
time with Simms’s mother and that Simms purchased three presents for
Brandon while they lived in Louisville.
In 1996, Simms and Melanie entered an agreed order in Jefferson Family
Court establishing Simms’s paternity. This order required Simms to pay $281
per month in child support until Brandon turned eighteen. The family court
handwrote a notation on the order indicating that the county attorney did not
object to direct payment because Simms had been supporting Brandon prior to
the entry of the order. Both parties agree that Simms never fell into arrears on
his support payments.
The following year, Melanie and Brandon moved to Scott County so that
Melanie could be closer to her workplace in Georgetown. After the move,
3 No father is listed on Brandon’s initial birth certificate. 4 The parties significantly dispute the amount of support Simms provided before 1994. Simms contends that he gave Melanie money whenever she asked for it and paid numerous living expenses. Melanie testified that he gave her a total of $300 during that period.
3 Simms’s in-person interaction with Brandon effectively ceased. Both parties
agree that Simms only saw Brandon twice between 1997 and Brandon’s death
in 2015. On one occasion, Simms took Brandon to swim at his brother’s farm.
On another, Simms, Melanie, and Brandon met briefly at a rest stop on the
interstate so Simms could give Brandon a present.5 Beyond these two events,
Simms’s contact with Brandon was limited to periodic exchanges of cards and
gifts.
Shortly after moving to Georgetown, Melanie began dating Derek Blake.
By 2000, Melanie and Derek married. At this point, Brandon took Derek’s
surname. On the petition for the name change, Melanie left the section
requesting the name of the applicant’s father blank. In the years after they
married, Derek never sought to legally adopt Brandon.
On August 9, 2014, Brandon tragically died in an automobile accident.
At the time of his death, Brandon was twenty-four years old and had neither a
spouse nor children. Brandon did not leave a will. Shortly after his death,
Melanie, and her husband, Derek Blake, filed a probate petition in Scott
District Court seeking to be appointed co-administrators of Brandon’s estate.
On the petition, the Blakes listed Derek as Brandon’s father and heir at law.
The following day, Robert Simms, Brandon’s natural father, contacted Melanie
through counsel. Simms’s counsel, Neal Herrington, informed Melanie’s
counsel, Fred Peters, that Simms was Brandon’s natural father and that
5 Melanie estimated that both of these visits occurred in 1998.
4 Simms intended to claim his portion of any wrongful death proceeds.6 Further,
Simms’s counsel told Mr. Peters that while “we may not ultimately contest the
appointment” of Simms and Blake as co-administrators, he was concerned with
their failure to notify Simms of the proceedings and requested that he be kept
informed of the status of the wrongful death claim.
Throughout the next several months, Mr. Peters and Mr. Herrington
exchanged several letters regarding the status of the claim. Eventually, in
February 2015, Mr. Peters informed Mr. Herrington that the parties had
reached settlement agreements in the wrongful death case. In the same letter,
however, Mr. Peters stated that KRS 411.137 precluded Simms from claiming
any portion of the proceeds because he had not been involved in Brandon’s life
in nearly two decades.
Shortly thereafter, Melanie filed an amended probate petition naming
Simms as the natural father and herself as sole administrator. Additionally,
Melanie filed a motion seeking a hearing before the district court concerning
Simms’s claim to a portion of the wrongful death proceeds. Simms objected
and moved for the court to appoint a public administrator for the estate. He
alleged that Melanie made false statements to the court in order to deprive him
6 Mr. Peters voluntarily withdrew as counsel for both the Estate and the Blakes while this case was before the trial court. During the pendency of this litigation, Mr. Peters intervened in the litigation seeking payment of his fee. The Scott Circuit Court’s findings of facts and conclusions of law regarding Simms do not address the claims between Mr. Peters and the Estate. As noted by the Court of Appeals, the circuit court complied with Kentucky Rule of Civil Procedure (CR) 54.02. Thus, we have jurisdiction over the claims ruled on by the circuit court and leave any remaining claims to be properly adjudicated.
5 of his share of the proceeds and that such statements rendered her unfit to
fairly administer the estate.7
Simms filed a separate civil action in circuit court against Brandon’s
estate and the Blakes, both in their individual capacity and as co
administrators. The complaint alleged that the Blakes intentionally
misrepresented Derek’s relationship to Brandon in an attempt to divest Simms
of his statutorily entitled portion of the wrongful death proceeds. As such,
Simms asserted claims of breach of fiduciary duty, negligence, and fraud. In a
subsequent motion, Simms further moved for the circuit court to remove
Melanie and Derek as co-administrators of the estate. The Blakes and the
estate filed an answer and counterclaim, arguing that Mandy Jo’s Law
precluded Simms’s recovery of any portion of the settlement proceeds.8
The circuit court refused to remove Melanie and Derek as co-
administrators because the appointment had occurred in the district court.
Under the court’s reasoning, the district court was best suited to determine
that question. Further, the circuit court ruled that the Blakes’s attorney,
Richard Rawdon, could not continue to simultaneously represent Brandon’s
estate. As such, Attorney Joseph Wright began representing the estate.
7 Simms filed a similar motion nearly one month later. This motion affirmatively requested that the district court remove Melanie and Blake as co- administrators. 8 In response to the numerous motions filed in circuit court, the district court
stayed further proceedings until the circuit court resolved of the motions before it.
6 A bench trial was held on August 8, 2016. The parties and the court
agreed prior to trial that the estate bore the burden of proof in establishing that
Mandy Jo’s Law applied. At trial, however, the estate effectively played a
passive role. The estate called various witnesses but then passed the witnesses
to Melanie’s individual counsel for questioning. Ultimately, the court
concluded that Mandy Jo’s Law foreclosed Simms from receiving any
distribution of funds from the estate or any amount of the wrongful death
proceeds.
A divided panel of the Court of Appeals affirmed the trial court’s
judgment. The majority concluded that the trial court correctly applied KRS
411.137 and held that it barred Simms from recovering any amount of the
wrongful death settlement. This Court granted discretionary review.
II. ANALYSIS
A. Mandy Jo’s Law and the related statutory framework.
Mandy Jo’s Law, codified in both KRS 411.137 and 391.033, limits the
ability of a parent who has forgone participation in the child’s care and
upbringing from enriching themselves in the event that their child predeceases
them. Collectively, the statutes prevent a parent who has “willfully abandoned
the care and maintenance of his or her child” from maintaining a wrongful
death action for that child, from administering the child’s estate, or from
inheriting any part of the child’s estate through intestate succession. KRS
411.137 provides in pertinent part:
(1) A parent who has willfully abandoned the care and maintenance of his or her child shall not have a right to maintain a 7 wrongful death action for that child and shall not have a right otherwise to recover for the wrongful death of that child, unless:
(a) The abandoning parent had resumed the care and maintenance at least one (1) year prior to the death of the child and had continued the care and maintenance until the child’s death, or
(b) The parent had been deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent had substantially complied with all orders of the court requiring contribution to the support of the child.
KRS 391.033, in substantially similar language, limits the parent’s
right to administer the child’s estate and right to intestate succession.
Mandy Jo’s Law disrupts the usual operation of both probate
proceedings and wrongful death proceedings. Ordinarily, when a person dies
intestate, the provisions of KRS Chapters 391 and 392 govern the descent of
their property. Subject to the rights of a surviving spouse, the statutory
scheme favors the decedent’s children, followed by their parents, followed by
any siblings.9 Mandy Jo’s Law removes a parent determined to have willfully
abandoned their child from the statutory calculation; it cancels out that
parent’s statutory right of intestate succession.10
A related but distinct statute governs a parent’s right to maintain a
wrongful death action. Though the wrongful death cause of action is
constitutional in nature, the Kentucky Constitution explicitly leaves the details
9 See KRS 391.010; KRS 391.030. 10 KRS 391.033(2) (“Any part of a decedent child's estate prevented from passing to a parent … shall pass through intestate succession as if that parent has failed to survive the decedent child.”).
8 to the discretion of the General Assembly.11 Under the statutory framework,
the personal representative of the decedent’s estate brings a wrongful death
claim on behalf of the “kindred of the deceased.” KRS 411.130 defines the
classes of beneficiaries and sets the order of distribution. As is relevant here, if
the decedent leaves no surviving spouse or children, any damages recovered
pass in equal shares to the decedent’s father and mother. Importantly, this
process—though shepherded by the personal representative—is separate from
the probate proceeding. Only if the decedent leaves no spouse, child, parents,
or siblings does the recovery become a part of the estate.12 In short, Mandy
Jo’s Law serves as a narrow exception to two similar, but ultimately separate,
statutory processes.
B. The trial court’s failure to remove Melanie and Derek Blake as administrators of the estate was harmless error.
Simms first argues that the trial court erred when it refused to remove
Melanie and Derek as co-administrators of Brandon’s estate due to their prior
false statements regarding Derek’s relation to Brandon and their adverse legal
position to Simms. In essence, Simms argues that the Blakes’ dual role as
individual litigants and co-administrators of the estate impermissibly tainted
the proceedings, led to harmful procedural errors, and shifted the burden of
proof.
11 See Ky. Const. § 241. 12 KRS 411.130(e).
9 A district court may remove the personal representative of an estate
where the personal representative, among other prescribed circumstances, is
“otherwise incapable to discharge the trust.”13 Generally, this provision
requires that a personal representative act in good faith and perform his or her
duties in a fair and unbiased manner.14 We have interpreted this language as
requiring removal in circumstances where the personal representative
“assumes an adverse or antagonistic position” to the estate or its possible
beneficiaries.15 Similarly, removal is warranted when an administrator
surreptitiously attempts to gain more of the estate than he or she is entitled
to.16
Removal was clearly warranted in this case. At the very least, the Blakes
and Simms adopted adverse legal positions regarding Simms’s right to intestate
succession. The Blakes’ claim, if successful, necessarily diminishes Simms’s
inheritance and increases their own. That is a sufficient conflict of interest to
justify their removal as administrators. Yet this conclusion does not foreclose
our consideration of the issue: we must determine if this warrants a remedy.
In our view, the time in which the appointment of an impartial administrator
would be useful has passed.
13 KRS 395.160. 14 Karsner's Ex'r v. Monterey Christian Church, 200 S.W.2d 474 (Ky. 1947). Price’s Adm’r v. Price, 163 S.W.2d 463 (Ky. 1942); see also Mullins v. Mullins, 15
212 S.W.2d 272 (Ky. 1948). 16 Zinn's Adm'r v. Brown, 10 S.W.2d 300 (Ky. 1928).
10 As the Court of Appeals correctly noted, the role of the administrator
regarding the wrongful death settlement proceeds effectively ended after the
settlement agreements were reached. Under KRS 411.130, the personal
representative only prosecutes the action for the beneficiaries; the proceeds are
not added to the probate estate unless there are no living beneficiaries as noted
herein under the statutes. Thus, by the time that Simms challenged the
appointment of the Blakes before the district court, their role as it pertains to
the wrongful death proceeds had effectively ceased. The funds remained in
escrow. All that remained was for Melanie and Simms to litigate the Mandy
Jo’s Law issue in their individual capacities.
Simms argues that the Blakes’ dual role affected the burden of proof and
presentation of evidence at trial. Broadly, Simms contends that allowing the
estate to take a passive role during the bench trial improperly shifted the
burden of proof to Melanie. This argument ignores, however, that a
beneficiary’s entitlement to wrongful death proceeds stems from a different
source than the probate statutes. The right to recover for wrongful death—
guaranteed under § 241 of the Kentucky Constitution and codified in KRS
411.130—belonged to Melanie and Simms in their individual capacities. In
this way, the burden of proof was properly Melanie’s in the first instance.
Thus, Melanie’s dual role did not cause irreparable procedural error before the
trial court.
At bottom, we agree with the Court of Appeals that remanding this case
for the appointment of a new administrator would not meaningfully change the
11 result. We emphasize that this conclusion depends on the specific facts and
circumstances of this case. It is essential that the administration of a probate
estate be carried out in a fair and impartial manner and without deceit. In
many cases, the failure to remove an improper administrator will constitute
reversible error. But in this case, that failure did not lead to an injustice.17
C. The trial court correctly employed the preponderance of the evidence standard of proof.
Simms next contends that the trial court erred in applying a
preponderance of the evidence standard of proof. The statute is silent as to the
standard of proof. Simms asserts that the court should have applied the “clear
and convincing standard” because Mandy Jo’s Law implicates parental rights.
The applicable standard of proof is a question of law and is subject to de novo
review.18
The question of what standard of proof applies is ultimately a matter of
due process. The purpose of “a standard of proof, as the concept is embodied
in the Due Process Clause and in the realm of fact-finding, is to instruct the
factfinder concerning the degree of confidence our society thinks he should
17 See CR 61.01, which states: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. 18 See Morton v. Tipton, 569 S.W.3d 388, 396 (Ky. 2019).
12 have in the correctness of factual conclusions for a particular type of
adjudication.”19 The applicable standard of proof is determined by reference to
the “risk of error inherent in the truth-finding process as applied to the
generality of cases, not the rare exceptions.”20 In the typical civil action, “proof
by a preponderance of the evidence normally determines the rights of the
parties.”21 In circumstances, where the individual interests at stake in a state
proceeding are “particularly important” and “more substantial than mere loss
of money,” application of the higher clear-and-convincing evidence standard is
proper.22 “Whether the loss threatened by a particular type of proceeding is
sufficiently grave to warrant more than average certainty on the part of the
factfinder turns on both the nature of the private interest threatened and the
permanency of the threatened loss.”23
Based on the recognition that the care and custody of one’s child is a
fundamental right, termination of parental rights proceedings must utilize a
clear and convincing evidence standard of proof.24 Simms argues that Mandy
Jo’s Law is in effect a posthumous declaration of parental rights and, as such,
should similarly require a heightened standard of proof. We disagree.
19Santosky v. Kramer, 455 U.S. 745, 754-55 (1982) (quoting Addington v. Texas, 441 U.S. 418 (1979)(internal quotation marks and citations omitted)). 20 Id. at 757 (quoting Matthews v. Eldridge, 424 U.S. 319 (1976)). 21 Woods v. Commonwealth, 142 S.W.3d 24, 43 (Ky. 2004). 22 Addington, 441 U.S. at 424. 23 Santosky, 455 U.S. at 758. 24 See id.; see also Cabinet for Human Res. v. E.S., 730 S.W.2d 929 (Ky. 1987).
13 Unlike a parent’s right to the care and custody in their children, the
question of who shall inherit what is firmly a legislative one.25 Though this
legislative power is limited by constitutional provisions, a person does not have
a constitutional right to an inheritance. Similarly, while the Kentucky
Constitution guarantees the right of kin to maintain a wrongful death cause of
action, it simultaneously empowers the General Assembly to define the
parameters of that right.26 The right to the care and custody of one’s child is
quite different: it is independently protected as a fundamental right. Thus,
Mandy Jo’s Law does not infringe on a parent’s constitutional rights. Rather, it
is a statute that alters and limits other statutory rights.
Moreover, both the wrongful death and intestate succession statutes deal
with property rights. It is of course true that resolving a deceased relative’s
affairs or holding culpable parties accountable for their actions provides
emotional or spiritual benefits to their surviving loved ones. Yet, it is
undeniable that both statutes primarily concern the distribution of property,
specifically money.
Other jurisdictions with similar statutes have reached similar
conclusions. For instance, North Carolina, which has a nearly identical statute
25 See, e.g., Woods v. Crump, 142 S.W.2d 680 (Ky. 1940) (“[I]t is acknowledged by all that it is competent for the legislative branch of the sovereignty of a state to prescribe who may inherit the property of a deceased individual dying intestate by appropriately enacted statutes of Descent and Distribution.”)). 26 See Ky. Const. § 241.
14 to Mandy Jo’s Law,27 employs a preponderance of the evidence standard.28
Similarly, the legislatures of both Ohio and South Carolina specify in the
statute that a preponderance standard must be used to determine
abandonment.29
In light of the foregoing, we conclude that the rights at stake in a case
arising under Mandy Jo’s Law do not warrant a heightened standard of proof.
Accordingly, we hold that in future cases trial courts must use the
preponderance of the evidence standard when considering claims under Mandy
Jo’s Law.
D. The trial court did not clearly err in finding that Simms willfully abandoned Brandon.
Both KRS 391.033 and KRS 411.137 require the trial court to find that a
parent “willfully abandoned” their child. The trial court found that Simms
willfully abandoned Brandon, in spite of his continued child support payments,
because he chose to forego significant personal contact for roughly fifteen
years. We review findings of fact for clear error.30 A factual finding is not
27 N.C. Gen. Stat. Ann. § 31A-2. 28 See In re Estate of Lunsford, 610 S.E.2d 366, 370 (N.C. 2005) (distinguishing termination of parental rights proceedings from actions brought under § 31A-2 due to the heightened standard of proof required in the former). But see New Jersey Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 942 A.2d 1 (App. Div. 2007) (employing clear and convincing evidence standard and holding that family court had the authority to retroactively terminate mother’s parental rights to deceased child and extinguish her right to inheritance on equitable grounds). 29 Ohio Rev. Code Ann. §2105.10 (“The administrator has the burden of proving, by a preponderance of the evidence that the parent abandoned the child.”); S.C. Code Ann. §62-2-114 (“[I]f the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent …”). 30 CR. 52.01.
15 clearly erroneous if it is supported by “evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.”31
In Kimbler v. Arms, the Court of Appeals issued the only published
decision interpreting Mandy Jo’s law in Kentucky.32 Kimbler concerned a
father who was in arrearages on child support, did not know the last grade
level the child completed, and did not contribute towards the child’s funeral.
Following the settlement of their child’s wrongful death claim, the mother
sought a declaratory judgment that Mandy Jo’s Law disqualified the father
from recovering a portion of the settlement proceeds.33 The court defined
“abandon” as “neglect and refusal to perform natural and legal obligations to
care and support, withholding of parental care, presence, opportunity to
display voluntary affection and neglect to lend support and maintenance … it
means also the failure to fulfill responsibility of care, training, and guidance
during the child’s formative years.”34 Importantly, the court emphasized that
monetary support alone is only a factor in determining abandonment; courts
must also consider the nature of the parent’s involvement in their child’s
upbringing.35
31 Owens-Corning Fiberglass Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). 32 102 S.W.3d 517 (Ky. App. 2003). 33 Id. at 521-522. 34 Id. at 525. 35 Id. at 525. 16 Based on our review of the relevant law, we conclude that Kimbler sets
out a correct analysis of Mandy Jo’s Law and adopt its holding. As the Court of
Appeals correctly noted below, there is no bright-line rule for abandonment.
Instead, a court must assess the facts and circumstances of the case at hand
to determine if the parent’s conduct demonstrated an intent to both support
the child monetarily and care for the child as a parent.36 While payment of
support is relevant, standing alone it is insufficient to preclude a finding of
abandonment.
Here, it is undisputed that Simms paid child support for nearly eleven
years and never fell into arrears. Additionally, both parties agree that Simms
saw Brandon more frequently when he and Melanie both lived in Louisville.
And neither party disputes that Simms had not seen Brandon in person within
fifteen years of his death. Otherwise, the parties disagree significantly
regarding Simms’s involvement in Brandon’s life. Under Simms’s account, he
regularly saw Brandon when they lived in Louisville, agreed not to visit with
Brandon at Melanie’s request once they moved to Scott County, but maintained
correspondence with Brandon through gifts and letters.37 According to
Melanie, Simms sent a handful of cards and presents to Brandon shortly after
36 This approach follows our lower courts’ definition of abandonment in the termination of parental rights context. See, e.g., S.B.B. v. J.W.B., 304 S.W.3d 712 (Ky. App. 2010); J.H. v. Cabinet for Human Res, 704 S.W.2d 661, 663 (Ky. App. 1985); O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983). 37One of Brandon’s close friends testified that Simms sent Brandon a book that he had authored while Brandon lived in Scott County. Additionally, Simms produced numerous cards containing Brandon’s handwriting that he received throughout the years.
17 the family moved out of Louisville, but otherwise had not spoken to him in
years.
On the basis of the record before us and in light of the trial court’s role
as factfinder, we conclude that the trial court did not clearly err in finding that
Simms willfully abandoned Brandon. While Simms maintained his support
payments, Kimbler makes clear that support is only one factor to be
considered. Both parties admit that Simms had not seen Brandon nor had
significant interaction between 1998 and 2014. Moreover, at no time did
Simms seek visitation, formally or informally, with Brandon. Insofar as Simms
and Melanie offer opposing testimony concerning Simms’s efforts to be involved
in Brandon’s life, credibility determinations are best left to the finder of fact. In
sum, a reasonable person could conclude, on the basis of the evidence
presented, that Simms played a relatively non-existent role in Brandon’s life.
We find that the trial court did not err in finding that Simms willfully
abandoned Brandon.38
E. Equitable Estoppel does not preclude Melanie from raising Mandy Jo’s Law as a defense.
Finally, Simms asserts that the doctrine of equitable estoppel should bar
Melanie from claiming abandonment because she asked Simms to stay away
Simms asserts that KRS 411.137(1)(b) permits him to recover under the 38
wrongful death statute. That statute provides an exception to the general prohibition in Mandy Jo’s Law when the parent lost custody pursuant to a court order but complied with all court orders regarding support. Simms attempts to take the benefit of the second part of the exception while ignoring the first. While it is true that he complied with the court order requiring him to contribute to Brandon’s support, he was not deprived of custody via a court order. Thus, KRS 411.137(1)(b) is inapplicable.
18 from Brandon and herself. Although Simms claims that the Court of Appeals
mistakenly conflated the doctrines of equitable estoppel and misrepresentation,
we hold the Court of Appeals analysis to be correct.
The Fluke Corp. case sets out the elements of equitable estoppel in
Kentucky:
The essential elements of equitable estoppel are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.39
Here, Simms claims that Melanie’s requests for Simms to stay away from
Brandon induced Simms to forfeit his rights to recovery. This claim fails to
demonstrate how Melanie’s requests induced him to forego a relationship with
his son, especially as Brandon had reached the age of majority and was not
under the custody and control of Melanie for several years until his death.
Simms fails to show that Melanie concealed, failed to divulge, or framed her
conduct in any way to mislead Simms. Assuming that Melanie did ask him to
stay away, Simms knew that he was Brandon’s biological father and knew that
39 Fluke Corp. v. LeMaster, 306 S.W.3d 55, 62 (Ky. 2010).
19 he could petition the court for visitation if he desired, even over Melanie’s
objection. As such, we conclude that Simms cannot establish the elements of
an equitable estoppel claim.
III. CONCLUSION
In light of our review of the record and applicable law, we affirm.
Minton, C.J.; Conley, Hughes, Keller, Lambert, and VanMeter, JJ.;
sitting. Nickell, J., not sitting. Minton, C.J., Conley, Hughes, Keller, Lambert
and VanMeter, JJ., concur.
COUNSEL FOR APPELLANT:
A. Neal Herrington Christopher H. Morris HARGANDON, LENIHAN & HERRINGTON, PLLC Louisville, KY
COUNSEL FOR APPELLEES:
Joseph A. Wright Georgetown, Kentucky Counsel for the Estate of Brandon Michael Blake
Richard Rawdon, Jr. Georgetown, Kentucky Counsel for Derek and Melanie Blake
Fred E. Peters Rhey Denniston Mills Lexington, Kentucky