Rhoda Pinson Maynard v. Monica Pinson ( 2021 )

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1107-MR
RHODA PINSON MAYNARD APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
v. HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 19-CI-00067
MONICA PINSON AND JEFF PINSON APPELLEES
OPINION
VACATING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Rhoda Pinson Maynard appeals from an order which
deemed Monica and Jeff Pinson de facto custodians of Appellant’s biological
child. We conclude that the trial court made an error of law; therefore, we vacate
the de facto custodian judgment.
FACTS AND PROCEDURAL HISTORY
The child at the center of this case was born on February 21, 2011. At
the time of the birth, Appellant was living with Appellees. Evidence in the record
shows that Appellant claimed she and the child lived with Appellees until she
moved out in 2018. Appellees claimed that Appellant lived with them for about
six months after the birth of child. At that time, Appellant then left the home, left
the child with Appellees, and had little contact with them or the child until around
2014 or 2015.
On April 11, 2019, Appellees filed a petition seeking custody of the
child and requesting to be deemed de facto custodians. After a hearing, the trial
court entered an order declaring Appellees de facto custodians. The court found
that Appellees had been the primary custodians from August of 2011 until March
of 2012. The court held that this period satisfied the de facto custodian statute.
The court reserved judgment on the issue of custody.
Appellant then filed a Kentucky Rules of Civil Procedure (CR) 59.05
motion to alter, amend, or vacate. Appellant argued that there was insufficient
evidence to support the court’s findings and that, as a matter of law, even if
Appellees had been eligible to be declared de facto custodians early in the child’s
life, that eligibility was interrupted when Appellant reentered the child’s life.
Appellant’s CR 59.05 motion was denied.
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Before the final custody hearing, Appellees withdrew their motion for
custody. On August 4, 2020, the trial court entered an order giving Appellant sole
custody of the child. The order also stated that Appellees’ de facto custodian status
remained and they were eligible to assert their rights in the future. This appeal
followed.
ANALYSIS
On appeal, Appellant argues that there was insufficient evidence to
support the trial court’s finding that Appellees met the de facto custodian
requirements. Appellant also argues that the trial court erred as a matter of law
when it did not consider whether Appellant’s return to the child’s life interrupted
Appellees’ status as de facto custodians.
Kentucky Revised Statutes (KRS) 403.2701 states in relevant part:
(1)(a) As used in this chapter and KRS 405.020, unless
the context requires otherwise, “de 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 six (6) months or more if
the child is under three (3) years of age and for a period
of one (1) year or more if the child is three (3) years of
age or older or has been placed by the Department for
Community Based Services. Any period of time after a
legal proceeding has been commenced by a parent
seeking to regain custody of the child shall not be
1
A new version of KRS 403.270 became effective in 2021. The version we cite in this Opinion
is the previous version which was in effect when the court issued the orders on appeal.
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included in determining whether the child has resided
with the person for the required minimum period.
(b) A person shall not be a de facto custodian until a
court determines by clear and convincing evidence that
the person meets the definition of de facto custodian
established in paragraph (a) of this subsection. 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
under this section and KRS 403.280, 403.340, 403.350,
403.822, and 405.020.
Although Appellant raises an issue regarding the sufficiency of the
evidence, we believe the trial court erred in interpreting KRS 403.270. As the
proper interpretation of a statute is purely a legal issue, our review is de novo.
Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003) (citations omitted).
Here, the trial court found that Appellees met the statutory requirements for de
facto custodians during the time period of August of 2011 to March of 2012.
Appellant argued before the trial court that when she returned to the child and
began parenting, the de facto custodian status was terminated and the court needed
to determine the status at the time Appellees filed their petition for custody.
We agree with Appellant. The status of de facto custodian is not
permanent and must be established each time the status is asserted. The cases of
Turner v. Hodge, 590 S.W.3d 294 (Ky. App. 2019), and Sullivan v. Tucker, 29
S.W.3d 805 (Ky. App. 2000), both support Appellant’s argument and are
controlling.
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In Turner, a grandmother was the primary custodian and financial
supporter of a child from the child’s birth in 2005 until the mother reentered the
child’s life in 2008. The grandmother did not petition the trial court for a finding
regarding her de facto custodian status until 2018. A previous panel of this Court
held that once the mother began parenting the child in 2008, the grandmother’s
status as de facto custodian was broken. Turner, 590 S.W.3d at 299. The
testimony at the de facto custodian hearing indicated that the grandmother had not
been the primary caregiver and financial supporter of the child in several years. Id.
The court went on to hold that “even if [the grandmother] had been able to
establish [de facto custodian] status earlier, the status was interrupted and in any
event was subject to be considered anew.” Id.
A similar situation arose in Sullivan. In that case, a previous panel of
this Court held that
the determination of de facto custodianship is a matter
that must be addressed anew whenever the status is
asserted. This is not to say that a prior finding of de facto
custodianship has no bearing on a subsequent
determination. . . . It is only to say that a finding of de
facto custodianship does not thereafter have [a]
conclusively presumptive effect[.]
Sullivan, 29 S.W.3d at 808.
Here, the trial court held that Appellees met the de facto custodian
requirements during a period of time in 2011 and 2012. This was around seven
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years before Appellees filed their petition for custody and de facto custodian status.
We believe the trial court erred when it did not consider if Appellant’s involvement
in the child’s life after 2012 extinguished Appellees’ de facto custodian status.
Due to this error of law, we vacate the trial court’s order which deemed Appellees
de facto custodians.
We must also briefly respond to a request by Appellees that
Appellant’s appeal be dismissed. In their brief to this Court, Appellees argue that
the order granting Appellant sole custody was an agreed order which precludes an
appeal. This issue was previously raised before this Court in a separately filed
motion to dismiss. This Court entered an order on December 16, 2020, denying
the motion to dismiss. We will not revisit that decision and decline to dismiss the
appeal.
CONCLUSION
Based on the foregoing, we vacate the order on appeal. At this time
there is no need for a new de facto custodian hearing because Appellees have
withdrawn their custody petition. Should Appellees seek custody of the child in
the future, they would need to prove their status as de facto custodians anew
pursuant to the holding of this Opinion and the cases cited herein.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Kathryn Burke Thomas W. Moak
Evan Smith Prestonsburg, Kentucky
Prestonsburg, Kentucky
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