Robison v. Theele

461 S.W.3d 772, 2015 Ky. App. LEXIS 55, 2015 WL 1869486
CourtCourt of Appeals of Kentucky
DecidedApril 24, 2015
DocketNO. 2013-CA-001077-ME
StatusPublished
Cited by3 cases

This text of 461 S.W.3d 772 (Robison v. Theele) 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
Robison v. Theele, 461 S.W.3d 772, 2015 Ky. App. LEXIS 55, 2015 WL 1869486 (Ky. Ct. App. 2015).

Opinion

OPINION

COMBS, JUDGE:

Chip Robison appeals several orders of the Clinton Circuit Court relating to the custody of his minor children. The orders awarded custody and visitation to Pamela and Michael Theele, the maternal grandparents of the children. They also imposed sanctions on Chip. After our review, we vacate the orders and remand.

Chip and Holli married in 2004. Two children were born of the marriage. They moved to Washington State. On May 30, 2010, Holli and the children moved to the residence of the- Theeles, her parents, in Clinton County, Kentucky. A divorce action was filed in Washington in July 2010. Chip then moved to Cooke County, Tennessee, in order to be closer to the children. The divorce action was transferred from Washington State to Clinton Circuit Court in January 2011. Chip and Holli entered into a separation agreement on May 17, 2012, which was incorporated into the decree of dissolution entered on May 30, 2012. It awarded joint custody to Chip and Holli — with Holli designated as the primary residential custodian.

During the pendency of the litigation, Holli underwent treatment for cancer. She continued to communicate with Chip in arranging for his visitation and participation in the children’s activities. Chip exercised regular visitation and paid child support. Holli died on January 18, 2013.

On January 25, 2013, the Theeles filed a petition seeking to be designated as de facto custodians of the children. They also filed a motion for entry of what they entitled a status quo ex parte order to maintain the visitation schedule that had been followed while Holli was alive. The court entered their requested order on the very day that the motion was filed. The record reflects that Chip was not served with the pleadings and order until January 31, 2013 — six days after the fact.

On February 15, 2013, the Theeles filed a motion to have Chip held in contempt for enrolling his children in school in Tennessee. On February 22, 2013, Chip filed a motion to dismiss the petition for de facto custodian status. On March 6, 2013, the trial court overruled Chip’s motion to dismiss and awarded standard visitation to the Theeles.

On March 18, 2013, the trial court held the first part of a hearing to determine de facto custodian status. On March 19, the Theeles filed an amended petition for de facto custodian status and included a new motion — for grandparents’ visitation. On March 21, the court entered an order setting visitation for the Theeles on specific dates between the date of the order and April 15, which was the date of the second portion of the hearing. On April 30, 2013, the Theeles filed a motion for contempt alleging that Chip had not complied with the March 21 order. Chip had been taking the older child to Nashville for therapy on Saturday mornings, allegedly interfering with the visitation awarded to the Theeles.

[775]*775The trial court entered another order on May 6, 2013. It set a hearing for May 20 regarding the contempt motion. Additionally, the court ordered Chip and the Theeles to mediate the case. Although Chip did not appear at the May 20 hearing, he made himself available by telephone. At the conclusion of the hearing, the court ordered Chip to submit proof from the older child’s therapist explaining why therapy had to be on Saturday mornings. It also scheduled mediation for June 14, 2013.

On June 10, 2013, the Theeles filed a motion for sanctions against Chip and asked the court to strike all of his pleadings. The same week, Chip informed counsel that he would not be able to attend the scheduled mediation due to a work conflict. He offered to be available by telephone. However, the mediator canceled the mediation because of his physical absence.

The trial court held a final hearing on June 17, 2013, to consider the de facto custodian petition, the contempt motions, and the motion for sanctions. Chip’s counsel informed the court that because Chip had missed several days of work previously, he was unable to attend either the hearing on May 20 or the mediation; however, counsel emphasized that he had offered to participate in both by phone. The court announced that it “took judicial notice that most people who work don’t want to miss work” because they make money by working. Additionally, in response to the court’s earlier order, Chip’s counsel explained to the trial court that the older child’s therapy had to take place on Saturday mornings because it was in Nashville — several hours away from Chip’s home. The court responded, “you’re talking to people who drive to Louisville for dinner, two-and-a-half hours. I don’t know how that could be inconvenient.” Presumably, it was again taking some sort of judicial notice — albeit undefined and of questionable relevance.

The court proceeded to opine that Chip had demonstrated a bad attitude. Accordingly, it struck portions of Chip’s pleadings. The court then awarded de facto custodian status to the Theeles, gave them sole custody of the children, and granted Chip supervised visitation with his own children to take place in Kentucky with no explanation or findings to substantiate any of its various rulings.

Chip filed a notice of appeal and a motion to stay the judgment of the trial court on June 21, 2013. On August 22, 2013, a panel of this court found that the trial court had acted inappropriately and granted Chip’s motion. On appeal, Chip bases his arguments on procedural error; thus, our review is de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky.2008).

Chip first argues that the trial court erred in issuing the status quo ex parte order. We agree.

The Theeles have not provided any legal authority for a “status quo ex parte order,” and we have been unable to find any.1 Essentially, it appears to be an emergency motion for temporary custody. Kentucky Revised Statutefs] (KRS) 620.060 governs emergency custody orders. Under the statute, emergency ex parte orders are only permissible when:

(a) The child is in danger of imminent death or serious physical injury or is being sexually abused;
[776]*776(b) The parent has repeatedly inflicted or allowed to be inflicted by other than accidental means physical injury or emotional injury. This condition shall not include reasonable and ordinary discipline recognized in the community where the child lives, as long as reasonable and ordinary discipline does not result in abuse or neglect as defined in KRS 600.020(1); or
(c) The child is in immediate danger due to the parent’s failure or refusal to provide for the safety or needs of the child.

KRS 620.060(1).

In this case, the trial court granted the ex parte motion based on several affidavits averring that the children were well cared for in the home of their grandparents. The trial court merely stated that the Theeles had been their primary caretakers and that if their father became their primary custodian, the children would be relocated to a new school.

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
461 S.W.3d 772, 2015 Ky. App. LEXIS 55, 2015 WL 1869486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robison-v-theele-kyctapp-2015.