Corns v. Corns

343 S.W.3d 622, 2011 Ky. App. LEXIS 113, 2011 WL 2416864
CourtCourt of Appeals of Kentucky
DecidedJune 17, 2011
Docket2010-CA-001911-ME
StatusPublished
Cited by1 cases

This text of 343 S.W.3d 622 (Corns v. Corns) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corns v. Corns, 343 S.W.3d 622, 2011 Ky. App. LEXIS 113, 2011 WL 2416864 (Ky. Ct. App. 2011).

Opinions

OPINION

NICKELL, Judge:

Gary Lee Corns appeals from an order of the Lewis Circuit Court, Family Court Division, modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratcliff). Having reviewed the briefs, the record, and the law, we reverse for lack of subject matter jurisdiction and a denial of due process and remand for further proceedings consistent with this Opinion.

FACTS

We begin by reciting the convoluted facts of this appeal. Gary and Taffy were married in 1995. A daughter, Allison, was born of their union in February of 2003. The couple separated on August 11, 2006, and Taffy petitioned the Lewis Circuit Court to dissolve the marriage. The parties entered into a separation agreement on August 30, 2007, in which they agreed to share joint legal custody and parenting of Allison. No primary residential custodian was designated. That same day, the trial court entered findings of fact, conclusions of law and decree of dissolution of marriage in which it fully adopted and incorporated the separation agreement.

When it came time to enroll Allison in school, Gary and Taffy wanted her to attend different schools. To resolve the impasse, in January of 2008, Taffy asked the court to decide what was in the child’s best interest. The trial court noted on its docket sheet for April 17, 2008, that it was treating Taffy’s motion as a request to modify custody rather than to change Allison’s school enrollment and gave Taffy an opportunity to file an amended motion which she did, supported by two affidavits, pursuant to KRS 403.350. The trial court then issued a four-page order on August 7, 2008, denying Taffy’s request to allow Allison to attend school in Carter County rather than in Lewis County where she had attended preschool. The order stated, Taffy’s:

voluntary relocation to another county should not be used to void [Gary’s] time with the child, nor has there been any evidence presented to the Court that the change to Carter County would amount to the best interest of the child.

Other than referencing the “best interest” standard typically applied to custody determinations, the court never specifically ruled on Taffy’s motion to modify custody and designate a primary residential custodian. Taffy never requested a more spe[624]*624cific ruling on her motion for custody modification or more particular findings, thereby evidencing her acquiescence in the trial court’s determination regarding the matters raised.

Sometime later, an issue arose about whether Allison met the surgical criteria for a tonsillectomy. Taffy believed she did; Gary did not. At the motion hour convened on September 19, 2009, the trial court authorized Taffy to schedule the procedure, but allowed Gary to obtain a second opinion and stated that a hearing could be scheduled if the independent medical exam produced a contrary medical indication. After examining the child on November 21, 2009, Dr. Paul Conrad concluded a tonsillectomy was unnecessary. Thus, on July 29, 2010, Gary filed a pro se motion stating:

Gary Corns, Petitioner, ask (sic) the Court to have a hearing of (sic) Taffy-Corns Ratcliffs lying to have Allison Corn’s tonsil (sic) removed and shared parenting decision making. Due to the independent study by my doctor being different than hers. Enclosed is the original court document stating that if an independent study differs, have a hearing.

The motion was noticed to be heard on August 5, 2010. Taffy filed a verified response wherein she alleged Gary’s motion did not state a claim for which relief could be granted, but agreed with the “essence” of his motion which she characterized as alleging that she and Gary could no longer share joint custody of their daughter. Taffy’s response stated,

While [Gary’s] Motion does not specifically meet the statutory requirements to consider a modification of custody, [Taffy] affirmatively states that pursuant to KRS 403.340 and other applicable law that significant and continuing changes in circumstances have occurred since the entry of the Decree that modification is necessary to serve the best interests of the child. The parties were originally designated as joint custodians, however, it should be readily apparent from the various pleadings filed by [Gary] that joint decision making in this case is impossible.

In requesting a hearing “on the issue of modification of custody,” Taffy stated:

[Gary] has become so irrational and incoherent in the dealings with the minor child that it is in her best interests that custody be modified to designate [Taffy] as her sole custodian.

A copy of the response was mailed to Gary on August 3, 2010. On August 4, 2010, Taffy moved the trial court to hold Gary in contempt for failing to pay his half of Allison’s health insurance premiums and uncovered health care expenses, and to schedule a show cause hearing on the matter.

The parties appeared at motion hour on August 5, 2010. Gary appeared without counsel, although Thomas M. Bertram was listed as his attorney on the docket sheet. In calling the case, the trial court stated the matter to be discussed was Gary’s motion “for basically a change in custody.” Gary neither objected to nor corrected the trial court’s characterization of his motion as anything more than a hearing on the need for a tonsillectomy. Taffy’s attorney again acknowledged that Gary’s motion was statutorily deficient for custody modification. Even so, he asserted that a custody hearing was needed and that he intended Taffy’s response to fill in any gaps left by Gary’s motion and to satisfy the statute. With Gary’s agreement, a hearing was set for September 9, 2010, at 1:00 p.m. to consider Gary’s motion, now characterized as a request for custody modification by the trial court, as well as Taffy’s motion to hold Gary in contempt.

[625]*625The trial court convened the scheduled hearing on September 9, 2010, at 1:19 p.m. Gary appeared alone. Taffy appeared with counsel. The trial court again stated the purpose of the hearing as:

Court: Mr. Corn’s motion for a change of custody, which I believe, Mr. Bentley, you have joined in with your response.
Taffy’s Attorney: That’s correct.
Court: And also there’s some motions for contempt that you filed against
Mr. Corns.

Taffy’s attorney immediately withdrew the motion to hold Gary in contempt for nonpayment of health insurance premiums and expenses as he was now current in his obligation.

Gary’s prior attorney, Bertram, addressed the trial court stating he did not represent Gary on this matter, but that Gary’s mother had called him the night before stating a custody modification hearing was to occur at 9:30 the next morning. Bertram stated he had told Gary he should have legal representation and believed Gary would ask the trial court for a continuance to secure legal counsel. Bertram stated he did not know the issues to be covered in the hearing and could not say he would represent Gary if he knew the issues. Bertram was then excused by the trial court and left the courtroom.

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Related

Corns v. Corns
343 S.W.3d 622 (Court of Appeals of Kentucky, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
343 S.W.3d 622, 2011 Ky. App. LEXIS 113, 2011 WL 2416864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corns-v-corns-kyctapp-2011.