Opinion
NO. 2019-CA-000441-ME
04-24-2020
ROBBIN NELSON APPELLANT v. HEATHER ANNE SHARP, AND ROBERT ANDREW SHARP, JR. APPELLEES
BRIEFS FOR APPELLANT: D. Bailey Walton Bowling Green, Kentucky BRIEF FOR APPELLEE: Casey A. Hixson Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN FAMILY COURT
HONORABLE CATHERINE RICE HOLDERFIELD, JUDGE
ACTION NO. 14-CI-00479 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND MAZE, JUDGES. KRAMER, JUDGE: Robbin Nelson appeals from the December 20, 2018 order of the Warren Family Court which awarded sole custody of the two minor children at issue to their mother, Heather Sharp, and ordered that the children have no contact with Robbin. Robbin also appeals an award of attorney's fees to Heather. Finally, Robbin appeals the order striking her pretrial compliance. Upon careful review of the extensive record before us, we affirm.
The family court's order also addressed numerous issues raised by Robert Sharp, the children's father. Robert did not appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Heather is the mother of the two children at issue in this case. She was formerly married to the children's father, Robert Sharp. Robbin is the paternal grandmother of the children. She is married to Jerry Wells, the paternal step-grandfather. Heather and Robert divorced in 2014. At the time Heather and Robert separated and were going through divorce proceedings, they entered into an agreed order naming Robbin as de facto custodian of the children. The record before us shows that both Heather and Robert intended the arrangement to be temporary. The family court granted Robbin de facto custodian status and custody of the children by order entered May 15, 2014. However, as addressed later in this opinion, the family court later determined that Robbin's testimony at the de facto custody hearing was fraudulent. Neither Heather nor Robert was present at the hearing.
Jerry Wells was not named as de facto custodian in the agreement.
The subsequent procedural history is extensive and complex. The issue of custody of the children is before this Court only after years of delay tactics instigated by Robbin in the family court in response to Heather's motion to modify custody filed on September 16, 2016. As Heather points out in her brief to this Court, there were over forty-two hearings between the filing of her motion and the final hearing, which occurred on October 12, 2018. In her notice of appeal, Robbin states she is appealing twenty-four orders of the family court dating from December 8, 2016, through December 20, 2018. Most of the orders listed are interlocutory and were, in one way or another, subsumed by the final order of the family court regarding custody of the children. Other orders, however, are either inapplicable to this appeal or were not timely appealed. It is necessary to review most of the factual and procedural history of the case because the family court took all evidence and testimony into account in its final order.
In December 2014, Heather began filing motions with the family court. She requested a change of custody and visitation with the children. She also filed a motion pursuant to CR 60.02 to set aside the order entered by the family court on May 15, 2014. Heather asserted Robbin's claims that resulted in her receiving custody of the children were fraud upon the court. Both parents started supervised parenting time with the children at the Family Enrichment Center in Bowling Green, Kentucky. In April 2015, Heather and Robert began having unsupervised visitation with the children in their respective homes. However, in May 2015, Robbin filed a notice of relocation with the family court. She stated she was moving with the children from Bowling Green, Kentucky, to Nashville, Tennessee. Heather objected, but the family court allowed Robbin to relocate because the move would not interfere with Heather's visitation with the children. We note, however, that during the entirety of the proceedings, Robbin actually maintained residences in both Bowling Green, Kentucky, and Nashville, Tennessee.
Kentucky Rule of Civil Procedure.
Robbin's actual address remained uncertain during the proceedings before the family court. She maintains a home in Bowling Green, Kentucky, but also owns at least two residences in Nashville, Tennessee.
Almost exactly six months after Robbin was permitted to move the children to Tennessee (i.e., in November 2015), Robbin, Jerry Wells, and Robert filed, as co-petitioners, a "Petition for guardianship, termination of parental rights, and adoption" regarding the minor children in Davidson County, Tennessee. The petition alleged, in relevant part, that Heather had abandoned the minor children. Robert consented to the adoption of the children by Robbin and Jerry Wells. Heather was forced to retain counsel in Tennessee to contest the termination of her parental rights and adoption of the children.
In March 2016, Robbin refused to let Heather exercise further visitation with the children. Heather filed a motion with the Warren Family Court, seeking to hold Robbin in contempt for her failure to abide by the court-ordered visitation. Robbin was not present when the motion was heard, although she had notice of the hearing. The family court entered a rule of contempt against Robbin and ordered her to appear. She did not. Rather, she began a pattern of what can only be described as dodging service at that time. The family court entered three additional rules of contempt and Robbin failed to appear in each instance. Service was not perfected until Robbin appeared before the family court on August 16, 2016.
Warren Family Court Rule 703(c)(9) provides that a party may motion the family court for a "rule of contempt" that was "previously referred to as [a] 'Show Cause Order.'" The local rule also mandates that parties caption their motions as "Motion for Rule of Contempt" rather than "Show Cause Motion" or "Motion to Show Cause." For consistency, we also use "rule of contempt," rather than "show cause order," in this opinion.
On June 6, 2016, the family court entered an order, sua sponte, retaining jurisdiction. On July 5, 2016, Robbin filed a motion to set aside or vacate that order and argued that Tennessee had proper jurisdiction. The Warren Family Court ultimately retained jurisdiction; however, this was only after extensive briefing by the parties, conferencing with the Tennessee court, and conducting at least two hearings. The Tennessee court noted that Robbin, Jerry Wells, and Robert attempted to engage in forum shopping. While the Warren Family Court did not make such a finding, it noted that "an argument could be well-taken, that the Petitioners in the Tennessee adoption action are attempting to gain a favorable outcome by attempting to proceed with litigation regarding these minor children in a jurisdiction other than that of the Commonwealth of Kentucky."
An order retaining exclusive, continuing jurisdiction was entered on January 25, 2017. Robbin appealed that order, but this Court dismissed the appeal as interlocutory. See No. 2017-CA-000427-ME.
On August 16, 2016, Robbin filed an affidavit with the Kentucky Supreme Court seeking recusal of the family court judge from all proceedings. Our highest court denied her motion for recusal on August 18, 2016. The family court entered another rule of contempt (the sixth since April 15, 2016) on the same date in response to Robbin's ongoing refusal to comply with Heather's court-ordered visitation schedule with the children. Robbin again failed to appear before the family court. On August 29, 2016, the family court entered an order requiring all parties to be present for all hearings. On December 8, 2016, the family court entered an order of contempt against Robbin for terminating Heather's visitation. The family court imposed a sanction of thirty days' incarceration plus a $1,000.00 fine for each of Heather's visitations withheld by Robbin (a total of $7,000.00). The sentence and fine were held in abeyance pending Robbin's compliance with all orders of the family court.
Heather filed a motion to modify custody on September 16, 2016 (i.e., two years and one day after entry of the order granting custody to Robbin). The matter was set to be heard by the family court on January 19, 2017; however, Robbin filed a motion to continue, arguing that the family court had recently allowed her sixty days to obtain new counsel and that the issue of jurisdiction was still pending. While unremarkable in substance, we note that this motion was the beginning of a series of delay tactics employed by Robbin that stretched from January 2017 until October 2018.
Heather's motion to modify custody was rescheduled to be heard by the family court on March 24, 2017. However, Heather filed a motion to compel on March 2, 2017, alleging that Robbin refused to fully answer discovery. On March 9, 2017, Heather filed a motion for a rule of contempt, asserting that Robbin had not provided the remaining discovery within twenty-four hours of March 7, 2017, as ordered. The family court entered a rule of contempt against Robbin on March 10, 2017, and ordered her to appear on March 20, 2017. Robbin failed to appear before the family court on that date. Instead, her counsel appeared and asserted that Robbin had recently had surgery and was restricted from travel by her physician. The family court was not persuaded and found that Robbin's absence was purposeful, noting that Robbin had previously rescheduled the same surgery three times, so it was therefore elective and not an emergency. The family court issued a bench warrant and imposed the previously ordered sanction of $7,000.00 against Robbin.
The written order was entered March 10, 2017.
The parties were before the family court again the following day. Robbin failed to appear. Robbin's counsel argued that the hearing scheduled for March 24, 2017, on Heather's motion to modify custody should be continued because the issue of jurisdiction was currently pending before this Court. The family court entered an order giving temporary custody of the minor children to Heather. The family court noted its concerns that the children would be placed into foster care in Tennessee if Robbin was arrested on the bench warrant and also noted Robbin's ongoing refusal to follow court orders and her disdain for authority. However, the court's comments from the bench did not make it into the written order granting temporary custody to Heather. The order simply stated that Robbin was to deliver the children to Heather at 6:00 p.m. on March 21, 2017. The family court entered an order of contempt against Robbin on March 24, 2017. For her part, Robbin filed a petition for a writ of mandamus with this Court regarding the temporary custody order. This Court granted the writ, in part, and directed the family court to hold a hearing and enter findings of fact and conclusions of law regarding the temporary custody order.
See No. 2017-CA-000427-ME.
The family court found that Robbin purposefully scheduled her foot surgery so as to be unavailable for the hearing scheduled for March 24, 2017. The family court also found that Robbin purposefully failed to answer discovery and failed to follow orders regarding such. The family court also noted that these were delay tactics used by Robbin and such tactics included her filing an appeal on orders that were not final and appealable (i.e., the order of the family court retaining jurisdiction).
See No. 2017-CA-000528-OA.
In the interim, the family court issued another bench warrant on April 4, 2017, for Robbin's failure to appear.
The family court, under instruction of this Court, conducted the temporary custody hearing on May 19, 2017. Despite the fact she argued about the lack of a hearing to this Court, Robbin did not appear at the hearing. The family court entered findings of fact and conclusions of law and temporary custody of the children remained with Heather. On June 16, 2017, the family court issued two bench warrants for Robbin's failure to appear on May 19 and June 6, 2017. The family court ordered that Robbin could purge herself of contempt by depositing $1,000.00 for each failure to appear into the escrow account of Heather's counsel.
Robbin complied with the order of the family court, and the bench warrants were recalled on June 22, 2017.
Heather's motion to modify custody was rescheduled to be heard July 13 and 14, 2017. On July 3, 2017, Robbin filed a pro se complaint against Warren Family Court Judge Catherine R. Holderfield in United States District Court, Middle District of Tennessee. On July 4, 2017, Robbin filed a domestic violence petition against Heather on behalf of the children. Her counsel at the time also sought to withdraw from the case and to continue the two-day hearing. On July 10, 2017, Heather filed a motion seeking cessation of all contact between Robbin and the children. She alleged that Robbin was having inappropriate conversations with the children, telling them that they were not safe with their mother, and using her time with the children to interrogate them. By this time, Robbin had contacted the Cabinet for Health and Family Services (CHFS) regarding Heather at least twice, but CHFS was unable to substantiate Robbin's claims.
The action was later dismissed. See Nelson v. Holderfield, Tennessee Middle District Court Case No. 3:17-CV-00927.
See Warren Family Court Case No. 17-D-00247-001. Robbin immediately requested Judge Holderfield's recusal, which was again denied by the Kentucky Supreme Court. Robbin then filed numerous motions unrelated to whether an act of domestic violence had occurred. In October 2017, the case was merged with the instant action. Robbin appealed that decision (No. 2017-CA-001810-ME), but her appeal was dismissed by this Court.
The record before us also shows that by August 11, 2017, Robbin and/or Jerry Wells had filed at least three bar complaints against Heather's counsel. All complaints were summarily dismissed.
The family court was unable to complete the hearing regarding Heather's motion to modify custody on the two scheduled days; hence, a third date was scheduled for September 7, 2017. However, rather than proceed on that date, Robbin argued that Heather had not completed a neuropsychological evaluation and requested she do so by a provider in Nashville, Tennessee. The family court pointed out that it had not ordered a neuropsychological evaluation; rather, it had ordered a psychological evaluation on June 22, 2017. The family court refused to order Heather to undergo a neuropsychological evaluation. Robbin also argued that she wanted to take depositions in conjunction with the domestic violence petition she had filed against Heather. Aside from merging the domestic violence case with the instant action, the family court was once again unable to move forward on Heather's motion to modify custody.
The record before us shows that Heather attended her initial appointment for a psychological evaluation, but Robbin's counsel called during the appointment and requested the evaluation stop, which it did. Thereafter, Heather refused to voluntarily submit to a neuropsychological evaluation, asserting that was not what the family court had ordered.
In September 2017, Heather filed a domestic violence petition against Robbin. See Warren Family Court Case No. 17-D-00247-002. Although the family court genuinely believed Heather has a fear of Robbin, it ruled there was insufficient proof to enter a domestic violence order.
On November 15, 2017, Robbin filed another petition for an order of protection on behalf of the children against Heather, alleging "severe corporal punishment" as well as medical and dental neglect. The family court denied the petition. On November 20, 2017, Heather filed another motion seeking cessation of all contact between Robbin and the minor children. Heather pointed to the recent domestic violence petition filed by Robbin as well as a new lawsuit that Robbin had filed against Heather in Tennessee, alleging breach of contract between Robbin and Jerry Wells and the children's private school in Nashville, Tennessee. In the breach of contract case, Robbin attempted, among other things, to have the Tennessee court order Heather to have the neuropsychological evaluation that the Warren Family Court had previously denied. She also sought a forensic examination of Heather's cellular telephone. The family court held an emergency hearing on November 21, 2017, and heard from the children's therapist, Meredith Fane. Fane had previously testified before the family court on July 13, 2017. Based on the anxiety displayed by the older child, which Fane believed was a result of statements made to the child by Robbin, Fane had made a referral to CHFS for emotional abuse. She stated she had concerns about the visitation continuing due to the anxiety, confusion, and nervousness displayed by the child. On November 28, 2017, the family court entered an order prohibiting contact between Robbin and the minor children until further orders of the court. The record before us shows that, on the same date, Robbin again called CHFS with allegations of abuse against Heather; however, the substance of the complaint did not meet the referral requirements and was not investigated by CHFS.
When Heather received temporary custody of the children, they began attending school in Bowling Green, Kentucky.
The record before us indicates that Robbin filed a complaint against Fane with the Kentucky Board of Social Work which was unsubstantiated.
This was per the testimony of Abigail Hill, social worker for CHFS, on February 5, 2019.
On January 10, 2018, Heather filed a motion to set a final trial date. She argued that Robbin was again delaying the proceedings because she refused to pay for the psychological evaluation that the court ordered and upon which Robbin had insisted. After Robbin stopped Heather's first attempt to have the evaluation by calling the provider during the appointment, Heather made two subsequent appointments for the evaluation. Both of those appointments were cancelled because Robbin called the provider and stated that she could not pay for the evaluation, thus causing further delays. Heather finally had a psychological evaluation by Dr. Frederick Grieve in February 2018, in Bowling Green, Kentucky.
On January 25, 2018, the family court held another hearing regarding Robbin's contact with the minor children as a continuation of the hearing previously held in November 2017. Robbin testified and denied each allegation regarding her interactions with the children as contained in Heather's motion. Robbin also called an expert witness to testify on her behalf, Dr. William Kenner, a physician from Nashville, Tennessee, who has training in child psychiatry and psychoanalysis. He testified that the minor children should be immediately returned to Robbin because, in his opinion, attachment trauma (i.e., when a child is removed from their primary attachment figure) is worse than physical or sexual abuse. In fact, he testified that it is better to leave a child with their primary attachment figure even if, hypothetically, that person is inflicting or allowing sexual abuse to be inflicted upon the child as often as once per week. On May 30, 2018, the family court entered an order prohibiting Robbin from having contact with the minor children. The family court found that Robbin's testimony was not credible and expressed "grave concerns" about Dr. Kenner's testimony, giving it no weight. The family court also found that Robbin attempted to hide the fact that she had moved again, noting a "pattern of dishonesty and deceit."
Dr. Kenner did not interview or treat the children in these proceedings but testified he had performed a "best interest evaluation" of the children when Robbin attempted to terminate Heather's parental rights and adopt the children in Tennessee.
We also note that prior to entry of the family court's order prohibiting contact between Robbin and the children, Robbin filed a civil action against Heather and her attorney in the Warren Circuit Court on May 24, 2018, alleging defamation.
On June 21, 2018, the family court entered an order setting the final hearing date for October 12, 2018, and it ordered the parties to file their pretrial compliance no later than September 12, 2018. Heather filed her pretrial compliance by the deadline; however, Robbin did not. Rather, on the date the pretrial compliance was due, Robbin filed a motion seeking to continue the hearing and again attempted to have the court order Heather to undergo a neuropsychological evaluation. On the same date, Robbin's husband, Jerry Wells, filed a motion attempting to intervene in the case. The family court denied Robbin's motion, pointing out that it had had Dr. Grieve's report regarding Heather's psychological evaluation since February 2018, and reiterated that the court found no reason for Heather to undergo a neuropsychological evaluation. The family court also denied Jerry Wells' motion to intervene, noting that he had over four years to attempt to do so.
Mr. Wells sought a writ of mandamus from this Court, which was denied. The Kentucky Supreme Court affirmed. Wells v. Holderfield, No. 2019-SC-000093-MR, 2019 WL 5678466 (Ky. Oct. 31, 2019).
Robbin filed her pretrial compliance with the family court on September 27, 2018 (i.e., fifteen days after the deadline imposed by the family court and just over two weeks prior to the final hearing date). Heather filed a motion in limine to prevent Robbin from (1) calling any witnesses other than the parties at the final hearing; and (2) introducing any documents or exhibits at the final hearing. The family court granted Heather's motion, noting the previous delays and the necessity of having strict orders to prevent further delays.
The family court conducted its final hearing on Heather's motion to modify custody on October 12, 2018, over two years after her motion was filed. When the family court asked the parties to clarify the various matters before it, Robbin stated only that she was "just here to defend the motion for change of custody." Heather informed the family court that Robbin had served her with a subpoena just three days prior to the hearing seeking all medical, dental, pharmacy, and school records for the children. Heather argued that it was another attempt to delay the proceedings because Robbin had two years to obtain the documentation she sought. The family court stated that it would not require Heather to produce the documents.
On December 20, 2018, the family court entered an order awarding sole custody of the minor children to Heather and preventing any further contact between the children and Robbin. Robbin filed a motion to alter, amend, or vacate the family court's order, which was denied. This appeal followed. Further facts will be developed as necessary.
ANALYSIS
Robbin raises four arguments on appeal. She asserts that the family court abused its discretion by (1) modifying custody of the children to award sole custody to Heather; (2) terminating her visitation with the children; (3) awarding attorney's fees to Heather; and (4) excluding her pretrial compliance.
Robbin's first three arguments are reviewed for an abuse of discretion. "An abuse of discretion will only be found when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014). As discussed herein, we review Robbin's fourth argument for palpable error.
Turning to Robbin's first argument, we first note that on March 7, 2017, Robbin filed an objection and response to Heather's motion for modification of custody. Heather included an affidavit with her motion pursuant to KRS 403.350. We agree with Heather that Robbin failed to timely object to the sufficiency of Heather's affidavit. In her brief to this Court, Robbin failed to cite to any point in the record where she argued the sufficiency of Heather's affidavit to the family court. CR 76.12(4)(c)(v) requires:
Kentucky Revised Statute.
An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
Thus, the rules for appellate briefing, preservation of error, and citation to the record and authority are clearly set forth. "We may strike a brief 'for failure to comply with any substantial requirement of' the rule." Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (quoting CR 76.12(8)(a); citing Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990)). Given that Robbin's brief on the issue of whether Heather's affidavit was sufficient is wholly lacking, we decline to review it. While Robbin's objection to modification of custody is preserved, we note that Robbin did not motion the court for custody of the children to be returned to her after Heather was awarded temporary custody.
Robbin filed a motion pursuant to CR 59.05 after entry of the temporary custody order; however, a motion pursuant to CR 59.05 may only be utilized to seek reconsideration of a final judgment.
Second, we must address Robbin's misapprehension regarding the applicable statute. Robbin asserts that KRS 403.340 is applicable to the facts of this case and bases her argument around the mandates of that statute. Her argument must fail. Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), provides clarification. Regarding a modification of custody, "after two years from the date of the custody decree, the standard reverts to review of the best interests of the child . . . under KRS 403.270[.]" Id. at 767. It is only when a change of custody is sought within two years of issuance of the custody decree that the standard of serious endangerment or abandonment to a de facto custodian applies per KRS 403.340(2). See id. at 766. In this instance, the initial custody decree was entered on May 15, 2014, and Heather filed a motion to modify custody on September 16, 2016. Therefore, the applicable statute is KRS 403.270.
KRS 403.270(2) states:
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of
evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse, as defined in KRS 403.720, has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child's relationship to each party, with due consideration given to efforts made by a party
toward the completion of any domestic violence treatment, counseling, or program;
(h) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(i) The intent of the parent or parents in placing the child with a de facto custodian;
(j) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school; and
(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse, as defined in KRS 403.720, against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.
The family court made extensive and detailed findings of fact and incorporated its findings into each subsection of KRS 403.270(2). Notably, the statute provides that "there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child." (Emphasis added.) While we find no error in the family court's findings, we highlight the following to demonstrate that Heather showed, by at least a preponderance of evidence, if not more, that joint custody is not in the best interest of the children. First, the family court found that Robbin obtained status of de facto custodian and was awarded custody of the children based on fraudulent testimony, noting:
The Court entered a Decree of De facto Custody on May 15, 2014. There was a very brief hearing on May 6, 2014, and only [Robbin] appeared. [Robbin] testified the children had lived with her since they were weeks old. The Court finds that testimony fraudulent. From the evidence presented, the Court finds the children did not live exclusively with [Robbin] until approximately May of 2014, when the Petition for De facto Custody was filed. [Robbin] testified that Robert was unable to care for the children because his medical conditions and medications rendered him incapacitated. Additionally, [Robbin] alleged Heather sustained a head injury in high school and suffered from depression. The Court finds that testimony to be fraudulent; Heather has not sustained any significant head injury nor ever suffered from depression.
The family court also found that neither Heather nor Robert was aware of Robbin's fraud upon the court in obtaining de facto custody.
Second, in evaluating the "mental and physical health of all individuals involved," the family court decided as follows:
The Court finds Heather to be healthy, both mentally and physically. [Robbin] and Robert have continuously
alleged that Heather suffered a head injury while in high school. The Court finds no evidence of such. The Court finds that when [Robbin] testified at the De facto hearing that Heather suffered a head injury, that was dishonest and a fraud upon the Court as Heather has never sustained any head injury other than a simple bump on the head which required no medical treatment.
. . . .
[Robbin] has a number of physical and mental ailments, including depression, anxiety, Fuchs Corneal Dystrophy, fibromyalgia, arthritis, irritable bowel syndrome, diverticulitis, and various cardiac issues. Her disability is such that she is unable to work and draws disability from the federal government. [Robbin] also walks with a cane and appears to have difficulty walking and moving about. [Robbin] provided no evidence or testimony that her anxiety and depression are properly being treated and under control. Like Robert, the Court finds her mental stability questionable. Throughout this litigation, she has expressed anger, been vindictive to both Heather, the Court, and counsel, inflicted fear upon Heather, refused to accept responsibility for her own actions, failed to view things from the point of view of a child, been openly hostile toward authority, perceives those that do not agree with her as being mentally unstable and unable to function in society, and spent considerable time and resources attempting to have the children removed from Heather with no basis. [Robbin] lacks basic
introspection. The Court finds [Robbin] would be well served to have both a psychological and psychiatric evaluation and follow the recommendations of such, but the Court does not Order such. If she chooses to participate in evaluations, the Court encourages her to provide the assessor this entire court file and all other filings she has made, whether with the Court, the Court of Appeals, the Chief Justice of the Kentucky Supreme Court, administrative bodies, or any other person or agency concerning these children, Heather Sharp, this Court, counsel, and any others.
Robbin maintained throughout the proceedings that Heather had sustained a head injury and testified that Heather "doesn't seem to understand or have the cognitive ability to parent." In her testimony, Robbin asserted that Heather suffers from memory loss, "absent seizures" where she appears to be staring into space, and an inability to process information timely. However, Robbin offered no evidence to back up her claims and admitted she had not seen any of Heather's medical records. Heather testified that she bumped her head on a metal bar during a Reserve Officers' Training Corps (ROTC) activity in high school, but never lost consciousness, did not miss any school, and resumed her normal activities immediately after taking ibuprofen following the incident. Robbin's repeated assertion that Heather had suffered a head injury was the basis for her insistence that Heather undergo a neuropsychological evaluation.
The record before us supports the family court's findings. It evinces a long-standing pattern of vindictiveness, dishonesty, and deceit by Robbin during the proceedings in the family court.
It is clear from the record before us that Robbin's motivation is not the best interest of the children, but rather, her own self-interest. From all accounts, it strikes the Court as a classic "win at all costs" power struggle for the sake of winning alone. Robbin failed to appear at any hearing related to temporary custody of the children, including the hearing held by the family court after this Court partially granted her writ of mandamus. After temporary custody was awarded to Heather, Robbin sought to delay the proceedings at every turn rather than move forward so that the children could achieve permanency.
To quantify the stark differences in motivation for litigating this matter, the family court found in analyzing the "motivation of the adults participating in the custody proceeding,"
Heather['s motivation] in seeking sole custody is in the best interest of the children. Throughout this litigation, this Court has found that Heather has always and continues to act in the best interest of the children, even faced with the numerous hurdles placed before her by [Robbin] and Robert. This litigation has been highly contentious and the Court finds that Heather has done exceedingly well managing the stresses of this litigation and ensuring the best interests of the children are always protected.
The motivations of Robert and [Robbin] are the same. Their motivation is not based on the best interest of the minor children. It is clear to the Court that they do not seek a return of the children as a result of their best interest, but they seek return of the children in order to somehow punish Heather. This is evident, in part, by the numerous administrative complaints filed against Heather and those seeking to provide assistance to her. The Court finds Robert and [Robbin] would rather the children be placed with strangers in foster care than with Heather. The Court is very disturbed by their thinking and their actions.
The family court considered all applicable factors in KRS 403.270(2) to arrive at its determination that awarding sole custody to Heather is in the best interest of the children. The record before us supports that Heather rebutted the presumption of joint custody by at least a preponderance of evidence. Accordingly, there was no error.
Robbin's second argument is that the family court abused its discretion in ordering no contact between the children and Robbin. She points to her motion to alter, amend, or vacate the family court's May 30, 2018 order pursuant to CR 59.05. However, we reiterate that a motion pursuant to CR 59.05 is applicable only to a final order.
Robbin also argues that the only testimony heard by the family court related to this issue was that of the children's therapist, Meredith Fane, who is a licensed clinical social worker. This assertion is wholly inaccurate. Robbin also argues that "Fane fails to be qualified to express opinions," but offers no citations of authority in support of her contention. Further, Robbin points to a motion in limine in the record to demonstrate that the issue is preserved. However, this is, at best, a misrepresentation of the record to this Court. Robert filed a motion in limine to exclude the testimony of Fane; Robbin did not. Regardless, we need not reach the merits of Robbin's argument regarding Fane.
The record before us overwhelmingly supports the family court's decision to cease contact between Robbin and the children in its December 20, 2018 order, even if Fane's testimony is excluded. First, as previously stated, Robbin only acquired de facto custodian status through fraudulent testimony to the family court. Second, Robbin unilaterally stopped all of Heather's court-ordered visitation with the children during the time she was attempting to terminate Heather's parental rights in Tennessee based, in part, on false allegations of abandonment of the children. Third, the record supports that Robbin repeatedly had inappropriate conversations with the children, including telling them that Heather had overdosed them on medication and was unable to care for them due to a head injury. Fourth, Robbin failed to deliver the children to Heather's custody on the date ordered by the family court; and, when she did deliver the children, the family court found that Robbin "refused to deliver to Heather all documents needed to enroll the children in school and sent the children with inadequate and insufficient amounts of clothing." Fifth, Robbin repeatedly failed to appear before the family court and repeatedly failed to follow court orders. The family court expressed concern about the example Robbin's disdain for authority was setting for the children. Sixth, the family court found that Robbin "either encouraged or allowed Jerry Wells to harass Heather." The record before us shows that, in July 2018 (i.e., after the family court temporarily ordered no contact between Robbin and the children), Heather traveled with the children to a resort near Gatlinburg, Tennessee. Jerry Wells testified that he knew of Heather's travel plans because he had seen Heather's credit card statements in discovery materials provided to Robert by Heather. Mr. Wells followed Heather and the children to the resort, disguised himself, and took photographs of Heather and the children. Once Heather recognized Mr. Wells, she was forced to call local law enforcement. She also abruptly ended her vacation with the children out of safety concerns. Finally, Robbin made repeated calls to CHFS (and the equivalent Tennessee agency) regarding Heather, which were unsubstantiated. These calls were made even after Robbin was no longer permitted to have contact with the children.
There was no evidence whatsoever that Heather had "overdosed" the children on medication.
The record before us shows that Robbin made two additional referrals to CHFS regarding Heather in January and February of 2019. Testimony by the investigative social worker was that she anticipated these allegations would also be unsubstantiated.
We agree with the family court that Robbin would prefer to see the children with strangers in foster care than with their mother. This evinces a disregard of the children's physical, mental, and emotional health by Robbin. Accordingly, there was no error in the family court's decision to cease all contact between Robbin and the children.
Robbin next argues that the family court erred in awarding attorney's fees to Heather. Robbin does not affirmatively identify, and it is unclear to this court, which order of the family court Robbin is appealing. The family court awarded attorney's fees to Heather at various times throughout the proceedings. It awarded $6,500.00 in attorney's fees to Heather on December 8, 2016, due to Robbin's withholding Heather's visitation with the children. That order was not appealed at the time. On September 21, 2018, the family court ordered that $9,000.00 paid into the escrow account of Heather's attorney by Robbin be released to Heather for attorney's fees. Robbin appealed that order, but this Court dismissed the appeal on its own motion for failure to appeal from a final order. Robbin does not cite the September 21, 2018 order in her brief to this Court. On September 12, 2018, Heather motioned the court for attorney's fees from both Robbin and Robert in the amount of $63,498.69. However, the family court did not award attorney's fees to Heather in its final order. Rather, the family court ordered that "Heather's motion for attorney's fees is continued generally as Robert Andrew Sharp filed Chapter 7 Bankruptcy on October 6, 2018, and the automatic stay is in effect." Therefore, because the family court has not entered a final order regarding an award of attorney's fees against Robbin, this Court cannot review the matter at this time. While it appears the award of attorney's fees and sanctions is well-warranted against Robbin, appellate courts do not have the authority to review alleged errors that were not yet decided by the trial court. Johnson v. Commonwealth, 231 S.W.3d 800, 808 (Ky. App. 2007).
See No. 2018-CA-001535-MR.
Finally, Robbin argues that the family court abused its discretion when it excluded her pretrial compliance. She states that the issue is preserved for appeal pursuant to KRE 103(d). We disagree. The rule states:
Kentucky Rule of Evidence.
Motions in limine. A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.
Robbin did not move the court for a ruling on admissibility of evidence prior to the final hearing; rather, it was Heather who filed the motion in limine. The language of KRE 103(d) is plain and unambiguous. We find no precedent, and Robbin does not cite to any caselaw, wherein an issue is deemed preserved as to any party other than the party who filed the motion in limine.
See, e.g., O'Bryan v. Hedgespeth, 892 S.W.2d 571, 574 (Ky. 1995) (a motion in limine, when denied, preserves the moving party's objection). See also Kentucky Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 817 (Ky. 2005) (denying a motion in limine to suppress evidence preserved the issue for review without a further objection at trial). --------
Robbin also points to KRE 103(e) and asks this Court to conduct a palpable error review. The rule provides:
Palpable error. A palpable error in applying the Kentucky Rules of Evidence which affects the substantial rights of a party may be considered by a trial court on
motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Accordingly, unpreserved error may be noticed on appeal only if it is "palpable" and "affects the substantial rights of a party[.]" This Court may only grant relief if it determines "that manifest injustice has resulted from the error." "[W]hat a palpable error analysis 'boils down to' is whether the reviewing court believes there is a 'substantial possibility' that the result in the case would have been different without the error." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citation omitted).
Heather's motion in limine referenced Warren Family Court Rule 703(C)(7)(b), which provides:
If the Pretrial Compliance is not timely filed, unless by written agreement with opposing counsel placed in the Court file, the non-complying party, unless good cause is shown, shall be precluded on direct from calling any witness, other than the parties, and from introducing any documents. Exceptions may be granted by the Court on a case by case basis.
In granting Heather's motion, the family court pointed out the necessity of having both strict orders and strict compliance with said orders due to previous delays. The family court also indicated that it refused to let Robbin "conduct a trial by ambush" and, in accordance with the local rule, prevented Robbin from calling witnesses other than the parties and from introducing any documents. At the final hearing, Robbin unsuccessfully attempted to introduce the depositions of Meredith Fane and Dr. Frederick Grieve.
After careful review of the record, we discern no error. Moreover, had the family court allowed Robbin to introduce the depositions at the final hearing, it is unlikely that the result would have been different. As previously stated, the evidence contained in the record before us overwhelmingly supports the family court's final order in this case. In fact, much of the testimony and evidence before the family court was a result of Robbin's prolonged delay tactics and failure to follow court orders. We are unpersuaded by Robbin's assertion that the family court "in essence posed a 'death sentence' to her civil action in defending the motion to modify custody that was filed by Heather." Robbin's actions delayed the proceedings for over two years; and, on the eve of the final trial date, she attempted, unsuccessfully, to delay the proceedings yet again. Her failure to follow the order of the family court imposing a deadline for submission of pretrial compliance was part of a longstanding pattern of noncompliance with court orders. There was no error on the part of the family court.
CONCLUSION
The family court put forth extensive and detailed findings of fact and conclusions of law for this Court to review. The record before us fully supports the final custody order of the family court. The family court did not abuse its discretion in any of the matters Robbin now appeals, nor was there palpable error. Accordingly, we AFFIRM the Warren Family Court.
ALL CONCUR. BRIEFS FOR APPELLANT: D. Bailey Walton
Bowling Green, Kentucky BRIEF FOR APPELLEE: Casey A. Hixson
Bowling Green, Kentucky