Jones v. Jones

510 S.W.3d 845, 2017 WL 242703, 2017 Ky. App. LEXIS 18
CourtCourt of Appeals of Kentucky
DecidedJanuary 20, 2017
DocketNO. 2015-CA-001284-ME AND 2015-CA-001882-ME
StatusPublished
Cited by7 cases

This text of 510 S.W.3d 845 (Jones v. Jones) 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
Jones v. Jones, 510 S.W.3d 845, 2017 WL 242703, 2017 Ky. App. LEXIS 18 (Ky. Ct. App. 2017).

Opinion

OPINION

LAMBERT, D., JUDGE:

Robert Jones brings two appeals from a series of orders entered by the Rowan Circuit Court. The first appeal arises out of the trial court’s entry of a joint custody order, which awarded joint custody of the biological child of Robert Jones to Robert and his sister, Suszanne Jones.1 The second appeal arises out of orders issued subsequently to the custody order, one order directing Robert to pay child support to Suszanne, and two orders directing him to pay a total of $3,000 in prospective attorney fees to Suszanne.2 The parties ask this Court to determine whether the trial court properly awarded a share of custody to Suszanne, and whether the trial court adhered to the necessary procedures in issuing its subsequent rulings. After careful review of the record, we find that the trial court improperly found that the child had a de facto custodian, awarded joint custody and attorney fees, and we therefore reverse the trial court’s rulings in both appeals.

I. FACTUAL AND PROCEDURAL HISTORY

These appeals originate in an action to dissolve the marriage of Robert and his wife, Jocelyn Jones.3 The couple had one son during their marriage, who is the minor child at issue in the custody appeal. Robert filed the petition for dissolution on April 6, 2015, and an ex parte motion for emergency custody the next day. On April 7, 2015, the trial court granted Robert’s motion, and set the matter for further hearing on May 8, 2015.

[847]*847Suszanne, Robert’s sister and the biological aunt of the child at issue, moved to intervene in the divorce action on April 29, 2015. Simultaneously therewith, she also filed an answer to the petition and a request for custody of the child as de facto custodian.

Jocelyn did not appear at the May 8th hearing, though Robert and Suszanne did. Jocelyn’s absence was attributed to a lack of notice and considerable difficulty in serving her with process. Robert filed a motion to dismiss Suszanne’s motion to intervene, arguing she lacked standing to pursue custody absent a judicial finding that she is a defacto custodian pursuant to KRS 403.270.

Without appointing a guardian ad litem for either the child or Jocelyn, the trial court set the matter for another hearing on June 2, 2015. The trial court also deferred ruling on the motion to intervene. A six-hour hearing took place on June 2, 2015, at which both parties testified in addition to numerous other witnesses.

Robert testified on his own behalf, and provided documentary evidence supplementing his testimony. He testified that he served in the United States Marine Corps until 2008, at which time he returned to the civilian workforce as a truck driver. With Jocelyn being absent, and his new job keeping him away from home during the week, Robert necessarily had to find others to assist in caring for his son. Robert left his son in the care of his father and step-mother, as well as Suszanne, for a few days each week. However, Robert also testified that he always returned home on weekends and most holidays, when the boy would stay with him. He testified that he paid for the babysitting services rendered by his family members, and he even gave Suszanne access to his bank account for the purpose of providing for his son. Robert further testified that he provided medical, dental, and vision insurance for the child. He testified that he provided Susz-anne with a vehicle and insurance coverage for the benefit of his son while in her care, as well as paying Suszanne’s phone bill several times since 2007 so he could communicate with the child.

Suszanne’s evidence consisted not just of her own testimony, but also that of multiple witnesses. She admitted during her testimony that Robert never stopped seeing the child and that Robert had, in fact, paid her for the babysitting services. Susz-anne’s ex-husband even testified on cross-examination that Robert had asked him to care for the boy, and paid him for the service as well. Suszanne conceded that Robert gave her access to his bank account and that she had made withdrawals for the benefit of the child. She testified that Robert would pick up the child on most weekends, though her testimony was that he was not consistent in doing so. She called numerous character witnesses.

Suszanne also called a 14 year old girl, the niece of both Robert and Suszanne, to testify. Suszanne has permanent custody of this child. The trial court took the girl into chambers to question her, away from counsel for both Suszanne and Robert. While the chambers recording equipment did create a record of this examination, the trial court did not permit the parties’ counsel to observe as it occurred (even via closed circuit video) or to ask or submit questions. This witness offered factual testimony as to the home conditions for the child at Suszanne’s residence, as well as character testimony alleging specific events of bad behavior on Robert’s part. She denied that Robert had ever given Suszanne any funds for the care of the child. The witness opined that Robert physically abused the child, and that Robert had likely pressured the child to “say [848]*848things that aren’t true” if the circuit court spoke to the child.

Immediately following this hearing, the trial court issued a ruling regarding temporary custody. The trial court ruled that temporary custody should remain unchanged, and Robert retained sole custody, but must allow phone contact between the child and Suszanne every other day.

Without further hearing, the trial court entered its final custody order on July 31, 2015. In that order, the trial court awarded joint custody of the child to both Robert and Suszanne, simultaneously finding that Suszanne was a de facto custodian of the child. The trial court’s factual findings also included the following: that Robert had cared for and provided for the child financially; that beginning around February of 2015, Suszanne kept the child for approximately two nights per week; that Susz-anne was primarily caring for the child prior to the entry of the emergency custody order of April 7, 2015; that Suszanne testified that she had provided for the child. Robert moved to alter, amend, or vacate, this order, which the trial court denied. At that point Robert initiated the custody appeal.

Suszanne then sought child support from Robert. The trial court conducted a hearing on Suszanne’s motion for child support at the same time at which they argued the motion to alter, amend, or vacate.- Robert contended that he was not given adequate time to prepare for Susz-anne’s motion, it having been filed only two days before the hearing. The trial court directed the parties to exchange financial information by August 24, 2015. Following a hearing, the trial court, on September 14, 2015, ordered Robert to pay $507.17 per month, based on Suszanne’s calculations, which did not take into account Jocelyn’s income. According to Robert’s calculations, his monthly obligation should have been approximately $183.00. As the trial court’s order failed to include Jocelyn’s income, no order imposing a child support obligation was entered against Jocelyn.

On August 26, 2015, Suszanne moved the court to award her $1,500 in prospective attorney fees, to assist her in defending against the custody appeal. The trial court granted the motion on September 11, 2015.

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Cite This Page — Counsel Stack

Bluebook (online)
510 S.W.3d 845, 2017 WL 242703, 2017 Ky. App. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-kyctapp-2017.