Lawrence Miller Jr v. Brittany Bunch Administratrix of the Estate of Autumn Raine Bunch

• Court: Court of Appeals of Kentucky
• Decided: February 4, 2021
• Docket: 2019 CA 001856
• Status: Unknown

Opinion

RENDERED: FEBRUARY 5, 2021; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1856-MR

LAWRENCE MILLER, JR. APPELLANT

APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 15-CI-00023

BRITTANY BUNCH, ADMINISTRATRIX OF THE ESTATE OF AUTUMN RAINE BUNCH; AND BRITTANY BUNCH, INDIVIDUALLY APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND KRAMER, JUDGES.

CLAYTON, CHIEF JUDGE: Lawrence Miller, Jr. appeals from the amended

Findings of Fact, Conclusions of Law, Judgment and Order of the Letcher Circuit

Court entered on December 2, 2019. Miller challenges the trial court’s finding he had abandoned his stillborn infant daughter and was consequently not entitled to

any settlement proceeds or distribution from her estate under Kentucky Revised

Statutes (KRS) 411.137 and KRS 391.033, collectively known as “Mandy Jo’s

Law.” We affirm because the trial court’s findings are supported by substantial

evidence in the record, and its conclusion is in accordance with the law.

Brittany Bunch had a sexual relationship with Miller while they were

co-workers. When Bunch discovered she was pregnant, she informed Miller who

immediately left. He had no further contact with her, except for sending her a $25

Walmart MoneyGram which she used to purchase items for the baby. He did not

attend doctor’s appointments with her nor did he try to contact her. On May 27,

2014, when Bunch was 33 weeks and 4 days pregnant, she presented at the

Whitesburg Appalachian Regional Healthcare (ARH) Hospital with symptoms of

preeclampsia. The child, Autumn Raine Bunch, was stillborn the next day. Miller

came to the hospital after Autumn was born and held her, but according to Bunch

he was high. She told her father she wanted him to leave but Miller tried to return

to Bunch’s room and was eventually removed by security. Miller did not attend or

contribute to Autumn’s funeral.

Bunch, individually and as the administratrix of Autumn’s estate, and

Silas Lee Walker, Bunch’s boyfriend, thereafter filed suit against Appalachian

Regional Healthcare Inc. d.b.a. Whitesburg ARH, alleging negligence and seeking

-2- damages for personal injury, wrongful death, and parental loss of minor’s

consortium. Several months later, Miller filed a complaint to intervene in the case,

alleging that he, not Walker, was Autumn’s natural father. A DNA test proved that

Miller was the likely biological father, and Walker was voluntarily dismissed from

the case. The case with ARH was settled.

After the settlement, Bunch sought to preclude Miller from receiving

a share of the proceeds under Mandy Jo’s Law, claiming he should not recover

because he willfully abandoned Autumn. The Letcher Circuit Court conducted an

evidentiary hearing and entered an order directing the settlement proceeds to be

paid entirely to Bunch. Miller moved the court to make findings of fact and

conclusions of law. The trial court granted the motion and entered findings of fact

and conclusions of law making specific findings that Miller had abandoned

Autumn and was precluded from recovering settlement proceeds arising out of her

death and damages through her estate. Miller filed a motion to alter, amend, or

vacate. Following a hearing, the trial court entered amended findings of fact and

conclusions of law containing minor changes that did not affect its primary holding

that Miller was precluded from receiving any portion of the settlement funds.

Following several motions and a hearing that have no bearing on this issue, Miller

filed this appeal.

-3- KRS 411.130(1) authorizes individuals to recover damages from the

negligence or wrongful act of a person resulting in the death of another person. It

provides that “[w]henever the death of a person results from an injury inflicted by

the negligence or wrongful act of another, damages may be recovered for the death

from the person who caused it, or whose agent or servant caused it. If the act was

willful or the negligence gross, punitive damages may be recovered. The action

shall be prosecuted by the personal representative of the deceased.” Under KRS

411.135, when the deceased person is a minor child, “the surviving parent, or

parents, may recover for loss of affection and companionship that would have been

derived from such child during its minority, in addition to all other elements of the

damage usually recoverable in a wrongful death action.”

Mandy Jo’s Law is comprised of two statutes, KRS 391.033 and KRS

411.137, which preclude parents from recovery of damages for the wrongful death

and loss of consortium of their child under certain conditions. KRS 391.033(1)

provides that “[a] parent who has willfully abandoned the care and maintenance of

his or her child shall not have a right to intestate succession in any part of the estate

and shall not have a right to administer the estate of the child[.]” Under KRS

411.137(1), “[a] parent who has willfully abandoned the care and maintenance of

his or her child shall not have a right to maintain a wrongful death action for that

-4- child and shall not have a right otherwise to recover for the wrongful death of that

child[.]”

Thus, Mandy Jo’s Law precludes a parent from recovery if the parent

willfully abandoned his or her child. For purposes of Mandy Jo’s Law,

abandonment is defined 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.”

Kimbler v. Arms, 102 S.W.3d 517, 522 (Ky. App. 2003) (citation omitted).

“[G]enerally, abandonment is demonstrated by facts or circumstances that evince a

settled purpose to forego all parental duties and relinquish all parental claims to the

child.” Id. at 523 (quoting J.H. v. Cabinet for Human Resources, 704 S.W.2d 661,

663 (Ky. App. 1985)).

Based on Bunch’s deposition testimony, the trial court found that

Miller knew he was Autumn’s father because he left Bunch immediately after she

informed him she was pregnant. The court further found that at no point did he

provide any support, whether financial, emotional or otherwise, to Bunch or the

child, except for the $25 Walmart MoneyGram. He was not present at any

doctors’ appointments with Bunch, nor did he contribute to or attend the funeral

services for Autumn.

-5- Because this case was decided by the court without a jury, on the basis

of deposition testimony, our standard of review is deferential to the trial court’s

findings of fact, which “shall not be set aside unless clearly erroneous[.]”

Kentucky Rules of Civil Procedure (CR) 52.01. “A factual finding is not clearly

erroneous if it is supported by substantial evidence[,]” Gosney v. Glenn, 163

S.W.3d 894, 898 (Ky. App. 2005), which is defined as evidence which “has

sufficient probative value to induce conviction in the mind of a reasonable person.”

Id. (citations omitted). The trial court’s conclusions of law, however, are reviewed

de novo. Id.

Miller argues that his conduct does not meet the definition of

abandonment because even Bunch did not know he was Autumn’s father, as

evidenced by Walker’s being named as the father in the wrongful death complaint.

He contends he did not know he was the child’s father until DNA testing was

performed. If Miller did not strongly suspect he was the child’s father, his actions

in sending Bunch the MoneyGram and going to the hospital after the child’s birth

and holding her are inexplicable. The trial court found clear intent on Miller’s part

to abandon the child as evidenced by his behavior in fleeing immediately after

Bunch informed him she was pregnant and thereafter making no further contact. It

is axiomatic that the existence of some evidence contrary to the trial court’s

findings does not justify reversal. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.

-6- 2003). “[J]udging the credibility of witnesses and weighing evidence are tasks

within the exclusive province of the trial court.” Id. The trial court’s findings in

this case are supported by substantial evidence in the form of Bunch’s deposition

testimony.

Miller further argues that KRS 411.137, which precludes wrongful

death recovery to a parent who has willfully abandoned the care and maintenance

of his child, as a matter of law, does not apply to a situation involving a child who

is stillborn.

The predecessor to the Kentucky Supreme Court held that a fetus is

viable when “the child has reached such a state of development that it can

presently live outside the female body as well as within it.” Mitchell v. Couch, 285

S.W.2d 901, 905 (Ky. 1955). In Kentucky, “[o]nce the stage of viability is reached

the fetus is regarded as a legal ‘person’ with a separate existence of its own. It is

the living child of its mother and father—it has a family and resides wherever its

mother resides.” Orange v. State Farm Mut. Auto. Ins. Co., 443 S.W.2d 650, 651

(Ky. 1969). “The most cogent reason . . . for holding that a viable unborn child is

an entity within the meaning of the general word ‘person’ is because, biologically

speaking, such a child is, in fact, a presently existing person, a living human

being.” Mitchell, 285 S.W.2d at 905. Mitchell extended the application of KRS

411.130 to the death of viable fetuses, holding that a wrongful death action may be

-7- maintained where the death of a viable fetus results from the negligence of another

party. Id.

Based on the deposition testimony of medical expert witnesses in the

underlying wrongful death action, the trial court found that Autumn, at 33 weeks

and four days, was a viable fetus. Therefore, she was a legal person with a

separate existence of her own, and a cause of action could be maintained for her

wrongful death just as it could for the wrongful death of any other child.

Although Autumn’s viability is not in dispute here, Miller contends

that he was never given the chance to give his child support or to display voluntary

affection and care because she was stillborn, and Bunch had led Walker to believe

he was the father. He contends that he and Bunch are identically situated in that

neither was given the opportunity to have a “normal parent-child relationship” with

Autumn, and it cannot be said that one parent’s loss of consortium is greater than

that of the other. Because no opportunity to develop a relationship existed, Miller

argues he could not have willfully abandoned Autumn.

He attempts to distinguish his case from Kimbler, in which Mandy

Jo’s Law precluded the father of a nine-year-old child killed in a car accident from

recovering for his wrongful death because the father rarely paid his child support

obligation, failed to exercise visitation, was uninvolved in the child’s education,

and did not attend his funeral. Kimbler, 102 S.W.3d at 520, 525. Miller contends

-8- that, unlike the father in Kimbler, he was never given the opportunity to provide

support for Autumn and was led to believe another man was the father. He also

cites to an unpublished opinion of this Court which affirmed the trial court’s

holding that a father was not precluded from loss of consortium damages by

Mandy Jo’s Law even though he failed to timely pay child support for his son, was

$4,000 in arrears in child support, was uninvolved in his life, and did not regularly

exercise his visitation rights. Big Spring Assembly of God, Inc. v. Stevenson, No.

2012-CA-001350-MR, 2014 WL 4267433, at *4-5 (Ky. App. Aug. 29, 2014).

Substantial evidence supported the trial court’s determination that

Miller knew he was the father of Autumn. Miller appears to premise a finding of

willful abandonment on whether a social relationship or opportunity to develop a

social relationship existed between the parent and child. He has provided no legal

basis to support this contention. Under Miller’s argument, no one would be

precluded from recovery for the wrongful death of a viable fetus on the grounds of

abandonment because no one can develop a social relationship with a child who is

not yet born. All parents with a claim for the wrongful death of a viable fetus

would be excused from the application of Mandy Jo’s Law regardless of whether

or not they have fulfilled their parental obligations to support the viable fetus.

There is no indication that this was the intent of Mandy Jo’s Law. Miller fails to

acknowledge that the parental relationship begins prior to birth and extends beyond

-9- a social relationship with the child. The parental relationship includes the

obligation to provide nurture, care, support, and maintenance, and this obligation

begins before the child is born. As the trial court stated, “a viable fetus requires

nurturing, care, support, and maintenance, and Miller refused to provide any such

support.” With the sole exception of his visit to the hospital after the stillbirth,

Miller was willfully absent from Bunch’s life after she informed him of her

pregnancy. By abandoning Bunch and offering no support, whether emotional or

financial, apart from the $25 MoneyGram, Miller effectively abandoned Autumn.

For the foregoing reasons, the amended Findings of Fact, Conclusions

of Law, Judgment and Order of the Letcher Circuit Court holding that Miller is

precluded by Mandy Jo’s Law from recovery of damages from the settlement

proceeds is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Kevin W. Johnson Stephen M. O’Brien, III Hazard, Kentucky Kevin Beiting Lexington, Kentucky

Daniel F. Dotson Whitesburg, Kentucky

-10-