Rita R. White v. Tiara M. Fowler

• Court: Court of Appeals of Kentucky
• Decided: February 23, 2023
• Docket: 2021 CA 000668
• Status: Unknown

Opinion

RENDERED: FEBRUARY 24, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0668-MR

RITA R. WHITE AND MARGARET SUE PARIS APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE DEANA C. MCDONALD, JUDGE ACTION NO. 19-CI-503731

TIARA M. FOWLER AND PHILLIP FOWLER APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.

DIXON, JUDGE: Rita R. White and Margaret Sue Paris (collectively “the

grandparents”) appeal the Jefferson Circuit Court’s order, entered March 23, 2021,

denying them de facto custodian status. After careful review of the briefs, record,

and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY

Tiara and Phillip Fowler are the parents of J.F. and T.F., born 2012

and 2013, respectively. On December 16, 2019, White and Paris, the children’s

maternal grandmother and great-grandmother, filed a petition jointly seeking

custody, parenting time, and/or visitation. A hearing on custody was held February

19, 2021, during which the grandparents, the Fowlers, and the children’s former

kindergarten teacher testified. While the grandparents maintain that the children

have predominantly resided with them since birth, they limited their claim of de

facto custodianship to August 1, 2016, through early January 2019. This

timeframe includes a period – September 2017 to November 2018 – when Tiara

and the children resided fulltime with them.

Per the grandparents’ testimony, beginning August 1, 2016, they met

the children’s daily needs by bathing them, dressing them, cooking their meals,

helping with homework, corresponding with their schools, and providing general

care. They also assisted with school projects; helped prepare the oldest child for

kindergarten; enrolled the youngest child in an early learning program; attended

school activities, extracurricular events, a parent teacher conference, and all of the

children’s medical appointments, which they also scheduled; and took the children

on recreational outings throughout the year. Jointly, they paid for the children’s

clothes, school supplies and activities, uniforms, extracurriculars, recreational

-2- outings, and holiday and birthday celebrations, as well as the oldest child’s pre-

kindergarten tuition. The grandparents assert that Tiara rarely bought anything for

the children and never reimbursed them for their financial outlays despite their

repeated requests.

In support, the grandparents submitted into evidence: a calendar

purporting to document the children’s day-to-day lives with the grandparents;

photographs from the relevant time period showing the children with the

grandparents, the children engaging in various activities, and the children’s rooms

and play areas in the grandparents’ house; detailed summaries of purchases made

for the children with receipts; and three letters sent via mail and certified mail

dated August and September 2016, from Margaret Sue to the Fowlers expressing

her frustration with their financial support and care of the children.

The grandparents admit that Tiara provided health insurance for the

children and that she attended all of their medical appointments, some of their

activities, and at least one parent teacher conference. They also acknowledge that

Tiara saw the children, with Margaret Sue estimating that Tiara could have gone a

week without seeing them, but never a month, and Rita estimating it was maybe

twice a week for an hour or so at the house. The grandparents report that Phillip

was routinely absent from the children’s lives.

-3- Denying that the children ever stayed fulltime with the grandparents,

Tiara explained that, during the week, her youngest child lived primarily with her

and the oldest split his time between the two households. With the exception of

one week-long vacation with friends, Tiara never went more than three days

without seeing the children. The Fowlers also testified that the children spent time

with Phillip which, pursuant to the divorce decree, was set at one day during the

week and every other weekend. Tiara acknowledges that the grandparents

routinely cared for the children during weekdays, when they were not in school or

daycare, and weekends while she worked.

Tiara asserts she has always been active in her children’s lives and

submitted photos of her and the children during the disputed period. She attended

most of their practices, where she occasionally worked the concession stand or

helped with coaching; she took the children to the amusement park, the zoo,

baseball games, and the circus; and she attended all of their games, school plays,

and parent teacher conferences. The children’s kindergarten teacher, who was

involved with the family during the 2017-2018 school year, reported that Tiara

came to a Mother’s Day event with the oldest child, attended two conferences, was

responsive to issues, and chaperoned two field trips.

Tiara opined that her parenting efforts were often stymied by the

grandparents who rejected the items she bought for the children and insisted upon

-4- packing the children’s backpacks, doublechecking the homework with which Tiara

assisted, and having the final say regarding the children’s outfits. Tiara believes

the grandparents manipulated both her and the children by threatening to withdraw

their assistance if things were not done their way and biasing the children against

her home. Tiara concedes that at times she acquiesced to the grandparents’ wishes

to keep peace and retain their help.

As for finances, per the Fowlers’ testimony, Phillip regularly paid

child support which Tiara – whose own wages were being garnished as a result of

bankruptcy proceedings – used to provide food, haircuts, and daycare for the

children. An exhibit purporting to document these transactions was admitted as

evidence. Tiara also permitted Rita to claim one of the children as a tax deduction

as a partial repayment for a family trip to Disney. She admits that she only paid

the grandparents $300 in rent and that she did not intend to reimburse Margaret

Sue for pre-kindergarten as she disputes that she ever agreed to be financially

responsible for the expense.

On March 23, 2021, the court entered an order finding that the

grandparents had not satisfied their burden of proof to be designated de facto

custodians pursuant to KRS1 403.270(1). After their subsequent motion to alter,

1 Kentucky Revised Statutes.

-5- amend, or vacate the court’s order pursuant to CR2 59.05 was denied by order

entered May 7, 2021, the grandparents timely brought this appeal.

STANDARD OF REVIEW

We review a court’s findings of fact under the clearly erroneous

standard and will only reverse if the findings are not supported by substantial

evidence. CR 52.01; Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964).

We review the court’s legal conclusions de novo. Nash v. Campbell County Fiscal

Court, 345 S.W.3d 811, 816 (Ky. 2011).

ANALYSIS

As an initial matter, the Fowlers request that we exercise our

discretion and strike the appellant brief as non-compliant for its failure to include

the required statement, with reference to the record, demonstrating that the

arguments raised therein are preserved for appeal. RAP3 32(A)(4); RAP 31(H)(1).4

Given the important nature of child custody issues, we have opted to retain the

brief.

2 Kentucky Rules of Civil Procedure. 3 Kentucky Rules of Appellate Procedure. 4 We note that the current rule, which was enacted after briefing was completed in this case, is identical in substance to the former rule, CR 76.12(4)(v).

-6- We turn now to the merits of the appeal. KRS 403.270 (2018)5

provides in pertinent part:

(1)(a) “[D]e facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for . . . a period of one (1) year or more if the child is three (3) years of age or older[.]

(b) . . . Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent[.]

The grandparents first argue that the court applied an erroneous

burden of proof. In its order denying CR 59.05 relief, the court asserted that,

“[w]hile not specifically stated in the statute, it is presumed that parents fill the

roles of primary caregiver and financial supporter. Thus, [the grandparents] have

the burden of rebutting that presumption.” The grandparents maintain that the

articulated standard is not supported by the law, demonstrates bias, and deprived

them of a fair hearing. In support, we are referred to two cases that pre-date KRS

403.270 and, as admitted by the grandparents, deal with the separate legal issue of

waiver of custody, as well as an unpublished opinion that does not address the

question at issue.

5 The statute was amended in 2021 after these proceedings commenced.

-7- While we do not endorse the court’s summation of the law, contrary

to the grandparents’ contention, it is not without support. In applying KRS

403.270, our courts have consistently recognized that parents have a superior,

constitutionally protected right to the care, custody, and control of their children.

Brumfield v. Stinson, 368 S.W.3d 116, 118 (Ky. App. 2012); see also Stanley v.

Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972).

Attendant with these rights, the common law “imposes a duty of responsibility on

parents for the care, nurture[,] and upbringing of their children.” Smothers v.

Baptist Hosp. E., 468 S.W.3d 878, 883 (Ky. App. 2015). Before a purported de

facto custodian may be afforded the same standing as a parent, we have held that

“the court must determine that the biological parent has abdicated the role of

primary caregiver and financial supporter of the child for the required period of

time. In other words, one must literally stand in the place of the natural parent to

qualify as a de facto custodian.” Brumfield, 368 S.W.3d at 118 (internal quotation

marks and citations omitted). As the court’s statement is consistent with these

principles and does not bias the grandparents’ position, we find no error.

Moreover, as the court cited and applied the correct standard in the underlying

order on appeal, the challenged language appearing only in the order denying CR

59.05 relief, we conclude any error was harmless. CR 61.01.

-8- Next, the grandparents raise various challenges to the court’s findings

of fact regarding the support and care of the children; however, as we believe the

latter is the determinative factor, we confine our analysis to that issue and do not

reach their remaining arguments. Though the court acknowledged that the

grandparents provided significant care to the children, it ultimately found that,

through Tiara’s consistent actions, the Fowlers had not abdicated their role as the

primary caregivers to the children. The grandparents concede this is consistent

with the Fowlers’ testimony but contend the court’s reliance thereon is erroneous

given the wealth of evidence, both testimonial and documentary, which they

presented.

It is true that a court’s discretion to judge credibility is not boundless

and its determination will not be upheld if the testimony at issue is refuted by

incontrovertible physical evidence or is otherwise inconceivable. See Potts v.

Commonwealth, 172 S.W.3 345, 349-51 (Ky. 2005). However, the limit of a

judge’s discretion is not implicated by the ordinary concerns of impaired

perception, a motive to fabricate, or disputed facts. Id. Here, contrary to the

grandparents’ assertion otherwise, the court’s decision falls within the latter

category.

Though the grandparents appear to have made every effort to

document the children’s lives through calendars, pictures, and letters, this

-9- evidence – which was prepared or interpreted by the grandparents and is neither

impartial nor incontrovertible – is not of sufficient caliber to overcome the court’s

determination of credibility. And, as explained by the Supreme Court of

Kentucky, “[r]egardless of conflicting evidence, the weight of evidence, or the fact

that the reviewing court would have reached a contrary finding, due regard shall be

given to the opportunity of the trial court to judge the credibility of the witnesses.”

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and

citations omitted). Accordingly, we find no error.

Finally, given the above, we need not reach the issue of whether KRS

403.270 permits the grandparents to jointly seek de facto custodian status.

CONCLUSION

Therefore, and for the forgoing reasons, the order of the Jefferson

Family Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Dean H. Sutton Allison S. Russell Louisville, Kentucky Louisville, Kentucky

John H. Helmers, Jr. Louisville, Kentucky

-10-