Opinion
NO. 2017-CA-001043-ME
04-06-2018
JOSHUA CLARK APPELLANT v. LAKIN WORKMAN AND KRISTI BECKLEHEIMER APPELLEES
BRIEFS FOR APPELLANT: Richard A. Hughes Ashland, Kentucky BRIEF FOR APPELLEE LAKIN WORKMAN: Rhonda M. Copley Ashland, Kentucky BRIEF FOR APPELLEE KRISTI BECKLEHEIMER: Paul E. Craft Greenup, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 14-CI-00448 OPINION AND ORDER
DISMISSING
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).
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BEFORE: ACREE, COMBS AND MAZE, JUDGES. ACREE, JUDGE: Joshua Clark claims the Greenup Circuit Court abused its discretion by entering its May 31, 2017 order designating specific visitation schedules for Appellees, Lakin Workman and her mother, Kristi Beckelheimer (Grandmother), who intervened in the custody matter. Joshua seeks reaffirmation of his sole custodial rights and a determination that Lakin be obligated to pay child support. However, this appeal was taken from an interlocutory order incorporating an interlocutory judgment on the intervening petition but not made final and appealable pursuant to CR 54.02(1). Therefore, this Court lacks jurisdiction and must dismiss the appeal as interlocutory.
Kentucky Rules of Civil Procedure.
FACTS AND PROCEDURE
Joshua and Lakin were never married but have two young children together. After Joshua filed a petition and motion for temporary custody of the children, the parties agreed to the trial court's entry of a temporary order of joint custody designating Lakin as the primary residential parent. The order also set a time-sharing schedule and required Joshua to pay $1,000 per month to Lakin as temporary child support.
In April 2015, Lakin tested positive for benzodiazepines and methamphetamines. Following the failed drug tests, the Cabinet for Health and Family Services filed a neglect action against Lakin, alleging one of the minor children had ingested Suboxone belonging to Lakin. The minor children were placed in the care of Grandmother. At that time, Joshua was working in Columbus, Ohio, and could not leave the job site. Therefore, the children were not placed with him then.
Joshua's employment with a railroad keeps him away from home frequently.
On November 24, 2015, the children were returned to Lakin, but the Cabinet kept an open case and Lakin was required to drug test. In August 2016, Joshua filed a motion requesting sole custody of the two minor children. Before the motion could be heard, Lakin relapsed when she tried to take herself off Suboxone. Just before the hearing on Joshua's motion for sole custody, Lakin enrolled herself in rehabilitation at Recovery Works. Joshua supplemented his custody motion emphasizing Lakin's addiction to Suboxone and the neglect action filed by the Cabinet in 2015.
All that matters for purposes of our review is how the trial court ruled in a series of multiple subsequent orders.
On November 3, 2016, the court ordered that Joshua have temporary sole custody of the children and suspended his child support obligation. Lakin was granted visitation "at all times that the rehabilitation center will allow[,] . . . to be supervised by" Grandmother. Although this order did not grant Grandmother rights of visitation, it stated that Grandmother "shall be allowed to watch the children while [Joshua] is working."
The next day, Grandmother petitioned the trial court to intervene claiming de facto custodian status and seeking custody of the children. Intervention was granted. Grandmother then filed a "Motion for Immediate Custody." An evidentiary hearing was held on December 6, 2017, aimed at addressing only Grandmother's claim to de facto custodian status and her claim of right to custody of the children.
In its January 13, 2017 order, the trial court held that Grandmother "does not fit the definition of de facto custodian." And, because the trial court also found insufficient evidence to declare either parent unfit, it correctly declined to "place [Grandmother's] rights of custody, if any, above the biological parents." Then, specifically incorporating its November 3, 2016 order, the court effectively repeated its award to Joshua of temporary sole custody of the children.
Further discussing its incorporation of the November order, the trial court stated that Grandmother shall continue to "be allowed to care for the children while [Joshua] is working . . . ." The trial court then took the additional, unprompted step of awarding Grandmother visitation with the children "one weekend per month beginning on Fridays at 4:30 pm and ending on Sundays at 6:00 pm." There was no pending motion for grandparent visitation and grandparent visitation was neither the purpose for nor the subject of the December 6, 2016 hearing. Nevertheless, the court granted grandparent visitation sua sponte and without reference to KRS 405.021 or case law interpreting the statute.
In both the November and January orders, the trial court stated that Grandmother should "be allowed to care for the children while [Joshua] is working . . . ." (Emphasis added.) Although these are temporary orders capable of modification or clarification by the trial court, it would appear that the order simply "allowed" (perhaps even encouraged) Joshua to utilize Grandmother to care for the children but did not otherwise limit Joshua, the current sole custodian, from determining who may babysit the children or what daycare they should attend or whether some relative, like Grandmother, should watch them.
Kentucky Revised Statutes.
Before grandparent visitation can be granted, there must be an "evidentiary hearing applying the modified best interest standard consistent with this opinion." Walker v. Blair, 382 S.W.3d 862, 874 (Ky. 2012). "The constitutional presumption that a fit parent acts in the child's best interest is the starting point for a trial court's analysis under KRS 405.021(1) [and] a fit parent's wishes are not just a factor[.]" Id. at 870-71. "[T]he grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child's best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation." Id. at 871. Whether Joshua's concession to grandparent visitation made this process unnecessary is not before this Court. We are here simply describing the procedural history of this case.
In less than ten days, Joshua moved the trial court to alter, amend, or vacate several of its rulings. He objected, among other things, "that the only person [who] can watch the children is the grandmother." He did, however, state "no objection to the children being able to regularly see the grandmother . . . [or] to visitations for her from time to time . . . ."
Joshua's motion does not refer to any rule. Motions to alter, amend or vacate typically relate to final judgments. CR 59.05 ("A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." (emphasis added)). Because the January 13, 2017 order was an interlocutory judgment (in that it adjudicated the entirety of the claim stated in Grandmother's intervening petition) that lacked finality recitations, it was "subject to revision at any time before the entry of judgment adjudicating all the claims . . . ." CR 54.02(1) (emphasis added). --------
He also objected to Grandmother's practice of taking the children, for whom he is the current sole custodian, for non-emergency medical care. He additionally argued that it made no sense that he be required to deliver the children to Grandmother when he works, even when Grandmother must attend her own employment, causing her to place the children in a daycare of her choice.
The trial court amended the January 13, 2017 order on February 1, 2017, but an error (one of no consequence to this appeal) prompted Joshua, on February 9, 2017, to serve another motion to clarify the order. The court granted that motion and entered a new order on February 22, 2017.
On March 1, 2017, Lakin moved to amend the February 22 version of the January 13, 2017 order arguing the amendments left her with no visitation. Six days later, in response to Lakin's motion, Joshua sought an order that the parties exchange income verification, and asked the court to set a status conference to address "the proper care, custody and control of the children . . . [and] the issue of child support." On March 8, 2017, the trial court amended its ruling again, puzzlingly holding that "Respondent [Lakin] can be present during the time [Grandmother] is supervising Ms. Workman's [Lakin's] visits."
From Lakin's perspective, this revision of the order still failed to award her specific visitation. On March 13, 2017, she moved the court "to set a specific schedule of visitation for [Lakin] with [Grandmother] to act as the superviser." In response, Joshua "reiterate[d] his request [for] a child support obligation to be set [and for] the court to set the . . . matter for hearing for all outstanding issues to be heard . . . ."
Hearing was set and conducted, after which the trial court entered the May 31, 2017 order that is the subject of this appeal. In addition to integrating all the previous orders, this most recent order awarded Lakin specific days and hours of supervised visitation and added her aunt and uncle as persons who could supervise that visitation. The trial court did not alter the custodial arrangement (Joshua remains temporary sole custodian) or child support (neither party pays child support) or grandparent visitation (Grandmother's visitation is one weekend per month).
ANALYSIS
"While neither party claims that this Court lacks jurisdiction, we nevertheless have an independent duty to address our jurisdictional concerns." Linden v. Griffin, 436 S.W.3d 521, 524 (Ky. 2014). With exceptions inapplicable here, this Court's appellate jurisdiction is limited to final judgments and interlocutory judgments made final in accordance with CR 54.02(1).
Joshua and Lakin were never married; therefore, there will be no final judgment in the form of a divorce decree. Although appeal can be taken from a "final custody decree," Pennington v. Marcum, 266 S.W.3d 759, 762 (Ky. 2008) (referring to the KRS 403.340(2) concept of "custody decree"), all custody awards in this case have been expressly temporary. KRS 403.280. Joshua has urged the trial court to set a final hearing after which permanent custody by means of a final custody decree, child support and visitation or timesharing could be set. But, clearly, such a final hearing has not occurred.
We note that the January 13, 2017 order is an interlocutory judgment that adjudicated the entirety of Grandmother's intervening petition and claim of de facto custodian status and custody. The trial court could have made that interlocutory judgment final and appealable by "a determination that there is no just reason for delay [and] recit[ing in that interlocutory judgment] such determination and . . . that the judgment is final." CR 54.02(1). No such recitals accompany that order. Consequently, another part of the same civil rule governs. It states:
In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.Id. None of the orders in this case contains finality language; all are interlocutory and can be revised at any time prior to entry of a final custody decree. There is no final and appealable judgment in this case permitting our appellate review.
CONCLUSION
For the foregoing reasons, we dismiss this appeal as interlocutory.
ALL CONCUR. ENTERED: 04-06-2018
/s/ Glenn E. Acree
JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANT: Richard A. Hughes
Ashland, Kentucky BRIEF FOR APPELLEE LAKIN
WORKMAN: Rhonda M. Copley
Ashland, Kentucky BRIEF FOR APPELLEE KRISTI
BECKLEHEIMER: Paul E. Craft
Greenup, Kentucky