APPEAL FROM TAYLOR CIRCUIT COURT. HONORABLE ALLAN RAY BERTRAM, JUDGE. ACTION NO. 13-CI-00193.
BRIEFS FOR APPELLANT: Cynthia T. Griffin, Elizabethtown, Kentucky.
BRIEF FOR APPELLEE: Samuel Todd Spalding, Lebanon, Kentucky.
BEFORE: LAMBERT, STUMBO AND THOMPSON, JUDGES. ALL CONCUR.
Juanita Michelle Crews appeals from a Default Judgment rendered in Taylor Circuit Court in an action filed by Gail Shofner seeking custody of Crews' minor children. Crews argues that the circuit court committed reversible error by establishing or modifying custody without conducting a hearing, and that it improperly failed to conclude that Shofner did not have standing to prosecute the action. We conclude that child custody may be established or modified only after conducting a hearing and adhering to the statutory scheme, even when the Petitioner is otherwise entitled to a Default Judgment. Accordingly, we Reverse and Remand the matter for further proceedings.
Juanita Michelle Crews and Justin Daniel Begley are the biological parents of two minor children. On December 18, 2012, the Taylor Circuit Court rendered a Time-Sharing Modification Order adjudging the parents to be joint custodians of the children, with residential custody alternating on a weekly basis. The Order acknowledged that the parties had a history of drug and alcohol abuse, but found that it did not endanger the children. The court went on to find that both parties " have a solid source of family support and assistance to help them with the care of the children." The Order stated that the joint custodial arrangement was in the children's best interest.
Gail Shofner is Begley's mother and paternal grandmother of the two children. On May 20, 2013, she filed a Verified Petition for Custody in Taylor Circuit Court seeking an Order granting her custody of the children. As a basis for the Petition, Shofner alleged that both parents had extensive histories of criminal activity and drug abuse, that they had lived at several different residences during the children's lives and that Shofner " has basically raised the minor children and has been their primary caregiver." Shofner also alleged that Crews and Begley became angry with her when she refused to return the children on one occasion, and filed a frivolous warrant against her for custodial interference. Shofner went on to allege that Crews and Begley were not capable of providing for the physical, emotional, financial, psychological and educational needs of the children; that they were unfit to provide care and control of the children; and, that it was in the children's best interest to establish Shofner as the sole custodian.
Begley and Crews were served with the Petition on May 22, 2013, and May 23, 2013, respectively. Neither party filed responsive pleadings or otherwise defended the action within twenty days. Shofner then filed a Motion for Default Judgment. On June 20, 2013, the Taylor Circuit Court sustained the motion and rendered a Default Judgment awarding Shofner sole custody of the two minor children. This appeal followed.
Crews now argues that the Taylor Circuit Court committed reversible error in sustaining Shofner's Verified Petition for Custody and Motion for Default Judgment. She contends that custody may be established or modified only within the statutory scheme, and that no modification may occur absent a hearing and proof of the statutory elements. Crews notes she lost custody of her children without a hearing and without any proof whatsoever being presented in support of Shofner's Petition.
Rather, custody was established or modified solely on procedural grounds because Crews failed to file a responsive pleading within twenty days. Crews argues that mere allegations contained in a Petition and supportive affidavit are grossly insufficient to satisfy the statutory elements for custody modification, especially since the same allegations had already been reviewed and expressly acknowledged by the court some six months earlier when the court concluded that " [t]here is no evidence that this has, to this point, endangered the children." In sum, Crews argues that the statutory scheme for custody modification must be followed, that custody may not be modified on mere procedural grounds, and that the Taylor Circuit Court erred in failing to so rule.
In response, Shofner characterizes the issue before us as purely one of procedure and application of the Civil Rules. She maintains that the sole issue is whether the circuit court may properly render a Default Judgment when a Respondent fails to tender a responsive pleading within twenty days of the Petition. According to Shofner, the Verified Petition for Custody was not a Motion to Modify Custody, but a wholly separate action before a new circuit judge. Shofner notes that she was not a party to the proceeding that resulted in the original custody decree, and contends that the instant action is not a proceeding to modify custody but a separate and distinct action which - like all proceedings - is subject to the Kentucky Rules of Civil Procedure. As such, Shofner asserts that the circuit court was well within its authority to render a Default Judgment arising from Crews' failure to file a responsive pleading or otherwise participate in the action. Accordingly, she seeks an Opinion sustaining the Default Judgment and resultant change in custody.
It is uncontroverted that a Time-Sharing Modification Order was rendered by the Taylor Circuit Court on December 18, 2012. That Order adjudicated the custody rights of Crews and Begley as to their two minor children, and had not been modified as of the time that Shofner filer her Verified Petition for Custody. Shofner strongly argues that her Petition should not be characterized as a Motion to Modify that Order, because she was not a party to the action from which it resulted, and because the instant Petition was adjudicated before a different circuit judge. If Shofner's Petition is not properly characterized as a Motion to Modify Custody pursuant to Kentucky Revised Statutes (KRS) 403.340, it must then fall within the scope of KRS 403.270 (" Custodial issues; best interests of child shall determine; joint custody permitted; de facto custodian" ). That statute provides that,
(2) 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. The court ...