Rita R. White v. Tiara M. Fowler ( 2023 )

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NOT TO BE PUBLISHED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
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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.
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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
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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.
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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).
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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.
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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.
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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
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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
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