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Deleo v. Deleo

Court of Appeals of Kentucky

October 27, 2017

KIMBERLY DELEO APPELLANT
v.
CHRISTOPHER DELEO APPELLEE

         APPEAL FROM JEFFERSON FAMILY COURT HONORABLE DEANA C. MCDONALD, JUDGE ACTION NO. 14-CI-501447

          BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky.

          BRIEF FOR APPELLEE: Scott E. Karem Louisville, Kentucky.

          BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES.

          OPINION

          THOMPSON, JUDGE

         Kimberly Deleo appeals from the findings of fact, conclusions of law and judgment of the Jefferson Family Court in this dissolution of marriage action. She argues as follows: (1) the family court abused its discretion when it denied her motion to continue the trial; (2) the denial of her motion for a continuance of the trial denied her constitutionally protected right of due process; (3) the family court abused its discretion by delegating judicial authority to the child's therapist; (4) the family court failed to make findings required by Kentucky Rules of Civil Procedure (CR) 52.01 and Kentucky Revised Statutes (KRS) 403.320 in its order suspending Kimberly's visitation with her child; and (5) the family court failed to make specific findings regarding the parties inability to co-parent. We conclude the family court erred in denying Kimberly's motion to continue the trial and reverse and remand.

         Kimberly and Christopher Deleo were married in 1993. During the marriage, the couple had three children, two of whom (L.D., born on March 11, 1999, and J.D., born on January 12, 2006), were minors at the time of the dissolution trial.

         In early May 2014, Christopher filed a mental inquest warrant against Kimberly after she poured gasoline on and set fire to some of Christopher's clothing while the children were in the residence. Kimberly was removed from the home and an emergency protection order was entered restraining her from returning to the marital home. Shortly following these events, Kimberly entered treatment at Our Lady of Peace in their adult partial hospitalization program for depression and alcohol abuse.

         On May 9, 2014, Christopher filed a petition for dissolution of marriage. Kimberly responded through retained counsel. She also filed motions seeking a temporary parenting schedule, temporary maintenance and attorney fees. The parties agreed to a parenting schedule and, after the hearing on the temporary maintenance and attorney fees motions, the trial court awarded $2, 000 per month in maintenance to Kimberly and Christopher was ordered to advance attorney fees to Kimberly's counsel in the amount of $1, 500.

         In July 2014, Christopher filed a motion to restrain Kimberly from violating a domestic violence order entered against her, which precluded her from being within twenty-five feet of the marital home. He alleged that on two separate occasions, Kimberly violated that order and sent him threatening text messages. He also filed a motion for the appointment of a guardian ad litem (GAL) and a custodial evaluator.

         A GAL was appointed. The family court also appointed custody evaluator and licensed clinical psychologist, Deborah Grishman Blair. On October 15, 2015, Dr. Blair issued a thirty-nine page report that was unfavorable to Kimberly as to her role as custodian of the children. The report contains a complex analysis of the results of various psychological tests performed on Kimberly, Christopher and the children as well as her professional observations and conclusions.

         Following Dr. Blair's report, Christopher filed a motion to suspend or supervise Kimberly's parenting time. Although the parenting schedule was adjusted, Kimberly's visitation remained unsupervised.

         On February 26, 2015, a two-day trial was scheduled to be held on July 15 and July 17, 2015.

         On March 4, 2015, Kimberly's attorney filed a motion for additional attorney fees to be advanced stating that his outstanding bill was approximately $6, 000. The motion was denied.

         On April 13, 2015, Kimberly's counsel filed a motion to withdraw stating that he had been discharged by Kimberly. During the court appearance when the motion was addressed, the family court asked Kimberly if she had discharged her attorney. When Kimberly did not respond, her attorney stated: "I have been fired your Honor."

         On June 3, 2015, seven weeks before the scheduled trial date, Kimberly filed a pro se motion for an advancement of attorney fees so that she could retain an attorney for trial. On that same date, an attorney entered an appearance on Kimberly's behalf and filed a motion to continue the trial date because the attorney had a termination of parental rights trial scheduled on the same dates. Kimberly's motions were denied. The reason given by the family court for denying a continuance was that a new trial date could not be set for five to six months after the scheduled date.

         On June 17, 2015, Kimberly renewed her motion to reschedule the trial. In that motion, Kimberly argued that the matters at issue, custody of her children and division of property, are constitutionally protected interests. She pointed out the difficulty she had obtaining an attorney because of her financial situation and that Legal Aid had declined to represent her. The motion was denied on June 22, 2015. Kimberly's new attorney was permitted to withdraw.

         The trial commenced without Kimberly being represented by an attorney. We recite portions of the trial to give a glimpse of the complexity of the issues involved.

         Dr. Blair testified in accordance with her report. She noted that the two older children refused any contact with Kimberly because of her erratic and disruptive behavior. The children described specific instances of that behavior including coming to the adult child's workplace and talking with her boss about the dissolution proceeding and causing disruption of L.D.'s soccer game when Kimberly approached a coach and school administrator about the dissolution. She also noted that the police were called multiple times because of Kimberly's behavior and that Kimberly failed to comply with prior court orders regarding parenting time. Dr. Blair concluded that Kimberly had demonstrated a pattern of maladaptive functioning and substance abuse. She further concluded:

[Kimberly's] rage and unpredictability suggest extreme instability and her behavior of the last few months has been erratic, poor judgment, and oft times, narcissistic. Her grandiosity combined with lack of self-control does not speak well for her ...

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