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Simms v. Estate of Blake

Court of Appeals of Kentucky

May 11, 2018



          BRIEF FOR APPELLANT: A. Neal Herrington Louisville, Kentucky

          ORAL ARGUMENT FOR APPELLANT: Christopher H. Morris Louisville, Kentucky


          BRIEF AND ORAL ARGUMENT FOR APPELLEES, MELANIE AND DEREK BLAKE: Richard M. Rawdon, Jr. Georgetown, Kentucky



          JONES, JUDGE:

         The Appellant, Robert Simms ("Bobby")[1], appeals from the Scott Circuit Court's January 17, 2017, findings of fact, conclusions of law, and order. Therein, the Scott Circuit Court found that Bobby abandoned the care and maintenance of his son, Brandon Michael Blake ("Brandon"), during his minority. Based on its factual findings, the circuit court concluded that Bobby was foreclosed by Mandy Jo's Law, KRS[2] 391.033 and KRS 411.137, from receiving a distribution from Brandon's estate or any of the proceeds recovered for Brandon's wrongful death.

         Bobby asserts that the circuit court's conclusion that he abandoned Brandon is at odds with the undisputed fact that he was never delinquent in paying his court-ordered child support for Brandon. Based on the evidence, he asks us to determine that he did not willfully abandon Brandon, and reverse the circuit court's conclusion that Mandy Jo's Law bars him from recovering from Brandon's estate and wrongful death proceeds. Alternatively, Bobby asks us to vacate the circuit court's order, and remand this matter for additional proceedings. Bobby asserts that a remand is necessary because the circuit court committed grave and injurious procedural errors with respect to the burden of proof, presentation of evidence, and its failure to appoint a neutral public administrator prior to the Mandy Jo's Law hearing.

          We have carefully reviewed the record as well as the applicable legal authority. Having done so, we cannot agree with Bobby that the facts required the circuit court to make a finding in Bobby's favor. The circuit court made a reasoned factual determination after weighing the evidence and judging the credibility of the witnesses. While some of the evidence certainly supported Bobby's arguments, none of the evidence was determinative on the abandonment issue. Furthermore, we have not identified any procedural errors that warrant remand. Accordingly, for the reasons more fully explained below, we AFFIRM.

         I. Factual and Procedural Background

         Tragically, on August 9, 2014, Brandon Michael Blake ("Brandon") was killed in an automobile collision when a car crossed the centerline and hit the car Brandon was driving. Brandon was twenty-four years old at the time of his death. He did not leave a will, was unmarried, and had no children. The Appellant, Bobby, is Brandon's natural father. The Appellee, Melanie Gosser Blake ("Melanie"), is Brandon's natural mother.

         Following Brandon's death, a dispute arose between Bobby and Melanie regarding the proper distribution of Brandon's estate, and the proceeds of a wrongful death settlement.[3] Bobby asserted that he was entitled to half of the estate as well as half of the settlement. Melanie disagreed. She maintained that Bobby had abandoned Brandon when he was a minor and, therefore, was barred by Mandy Jo's Law from receiving any portion of the estate and wrongful death settlement. The parties' dispute eventually culminated in Bobby filing a complaint in Scott Circuit Court against Brandon's estate, Melanie, and Brandon's stepfather, Derek Blake ("Derek").[4] Ultimately, the circuit court concluded that Mandy Jo's Law prevented Bobby from recovering anything.

         A. Brandon's Birth and Childhood

         Melanie and Bobby were never married, and they never cohabitated. At the time Brandon was conceived, Melanie was single; Bobby was married to another woman. Melanie gave birth to Brandon on August 28, 1989, in Louisville, Kentucky. No father is listed on Brandon's birth certificate. Melanie made Bobby aware of her pregnancy and Brandon's birth. However, Bobby did not take any steps to legally establish his paternity or obtain custody and/or visitation with Brandon. From 1989 until 1997, Brandon lived with Melanie in Louisville, the same city where Bobby resided with his wife. The parties disagree regarding the amount of support Bobby provided for Brandon as well as the amount of time he spent with his son during this time period.

         Bobby testified that he provided Melanie with support whenever she requested it. He also testified that he regularly visited Brandon, approximately once or twice a week. Bobby recalled riding bikes with Brandon as well as spending time with him at local parks. In addition to the financial support he gave Melanie, Bobby testified that he also purchased gifts for Brandon, including a television set, a bicycle, and golf clubs.

         Melanie's account of the 1989 to 1997 time period is vastly different. She testified that Bobby gave her a total of $300 during this period, and that he rarely saw Brandon. Nevertheless, Melanie did agree that Bobby purchased the television set, bicycle, and golf clubs for Brandon. She also acknowledged that Brandon went to Bobby's mother's house on three occasions. Melanie testified that she never recalled Bobby taking Brandon on bike rides or to the park.

         In the fall of 1996, when Brandon was seven years old, Melanie filed a petition with the Jefferson Family Court to establish paternity. An agreed order of paternity was entered by the family court on October 3, 1996. Pursuant to the order, Bobby was ordered to pay $281 a month for support until Brandon turned eighteen as well as to pay for 33.6% of any uninsured extraordinary medical expenses Brandon incurred.[5]

         The form order used by the family court contained a default provision directing support "be paid to the Jefferson County Attorney, Child Support Division, for disbursement to the person . . . entitled thereto in accordance with state and federal law." The family court drew a line followed by an asterisk through this section of the order. At the end of this section, the family court handwrote the following notation beside the corresponding asterisk: "Co. Atty. has no objection at this point to direct payment because the Defendant has been supporting child." During the bench trial before the circuit court, Bobby argued that this statement was an admission by Melanie that Bobby was fully supporting Brandon prior to entry of the child support order. Melanie vigorously disagreed that this statement was an agreement by her that Bobby had been providing adequate support to Brandon. She testified that Bobby's failure to provide adequate and consistent support caused her to file the paternity petition. Melanie testified that Bobby wanted the notation included because he wanted to make it clear that he was not agreeing to pay any back child support. The circuit court ultimately concluded that this statement was not conclusive regarding Bobby's support prior to entry of the paternity order. It found that while Bobby provided more support than the $300 Melanie recalled, his support was neither consistent nor adequate.

         Melanie testified at trial that after the family court entered the child support order, Bobby paid his child support each year in a lump sum until Brandon was either eleven or twelve years old, at which point Bobby's social security checks might have accounted for Brandon's child support. In any event, Melanie did not contest that Bobby fully complied with his child support obligation as ordered by the court.

         In November of 1997, when Brandon was eight years old, Melanie and Brandon moved to Scott County, Kentucky, so that Melanie could be closer to her job at Toyota. After the move, Bobby only saw Brandon on two occasions, both of which occurred in 1998. On the first occasion, Melanie took Brandon to Bobby's brother's farm to swim. The second occasion occurred later that year when Bobby met with Brandon for approximately twenty minutes at a truck stop off Interstate-64. This was the last time Bobby saw Brandon.

         In March of 2000, Melanie married Derek, whom she met and began dating shortly after the move to Scott County. Later that same year, Melanie assisted Brandon in changing his surname from Gosser to Blake. Melanie testified that Brandon considered Derek to be his father, and referred to him as such. She testified that Derek did all the things a father would do for Brandon. Even though the family viewed Derek as Brandon's father, Derek never sought to legally adopt Brandon.

         According to Bobby, Melanie asked him not to visit Brandon any more after she met Derek. Bobby testified that he complied with Melanie's wishes because he believed Derek was a good influence on Brandon, and he thought it would be best for Brandon if he did not interfere. Melanie denied ever asking Bobby not to visit Brandon. In any event, Bobby never saw Brandon in person after 1998, when Brandon was nine. Nevertheless, the testimony indicated that there was sporadic contact between the two. Bobby testified that Brandon sent him cards and photographs from time to time, and that Bobby sent Brandon a few cards and presents.

         Brandon was killed on August 9, 2014. The following day, Bobby called Melanie to find out what had happened. The parties agree that Melanie asked Bobby not to attend Brandon's funeral, and Bobby complied with her request.

         B. District Court Proceedings

         On September 2, 2014, not quite a month after Brandon's death, Derek and Melanie filed a probate petition in Scott District Court seeking to be appointed as co-administrators of Brandon's estate. On the first section of the form, they checked a box indicating that Brandon died intestate. The second section of the form required them to list "the surviving spouse, heirs at law and next of kin." On this section of the form, they listed Melanie as Brandon's mother and Derek as Brandon's father. They did not name or otherwise mention Bobby. The form was sworn and notarized. Attorney Fred E. Peters, the attorney Melanie and Derek hired to pursue the wrongful death claim, assisted in preparing the probate petition. Thereafter, the district court entered an order appointing Derek and Melanie as co-administrators of Brandon's estate.

         The next day, September 3, 2014, Attorney Peters received a letter from Attorney A. Neal Herrington. Attorney Herrington indicated that he had been hired by Bobby. The letter explained that Bobby was Brandon's natural father, and Bobby was making a claim on the wrongful death proceeds. The letter further provided:

It appears that an Estate was set up, and an Order appointing an Executor entered yesterday (9/2/14). Mr. Simms was not put on notice of this proceeding. We would like to talk to you about the matter.
While we may not ultimately contest the appointment, we would like to be sure Mr. Simms receives his portion of any proceeds as a rightful heir in the wrongful death estate. Hopefully, we do not have to involve the Scott County Probate Court. Obviously, if your client has a different position regarding this issue, we would like to know that as well.

(Emphasis added.)

         Attorney Peters responded by letter dated September 4, 2014. In that letter, Attorney Peters explained that "he had no knowledge of any claim to the estate by [Bobby] until [Melanie] called him on September 2, 2014, after Chris Morris, [Attorney] Herrington's partner had called her." Attorney Peters informed Attorney Herrington that he was moving forward on the wrongful death claim, but any proceeds would be retained in his escrow account until all matters were resolved. Attorney Peters requested proof of Bobby's paternity, past child support payments, and proof that Brandon drew Social Security benefits from Bobby's account. Attorney Herrington responded to Attorney Peters by letter dated September 11, 2014. The October 1996 Judgment of Paternity and Order of Support as well as a September 2014 letter from the Social Security Administration were enclosed. Attorney Herrington asked Attorney Peters to keep him advised regarding "the status of the claim."

         Over the next couple of months, Attorney Herrington and Attorney Peters corresponded periodically about the status of the wrongful death claim. On January 5, 2015, Attorney Peters informed Attorney Herrington that he was waiting to receive a response to his demand from the liability insurance carrier. He indicated that he had given the carrier twenty days to respond, and that he was going to file suit if no response was forthcoming. His letter also included the following paragraph: "In the meantime, you and I need to have a discussion about Mandy Jo's Law as far as your client is concerned."

         On February 10, 2015, Attorney Peters notified Attorney Herrington that he had procured settlements from both insurance companies involved in the wrongful death action: $100, 000 from the tortfeasor's carrier, Kentucky National Insurance Company, and $50, 000 from Brandon's underinsured carrier, State Farm. The letter also addressed Bobby's request to receive his portion of the settlement:

You told me your client is claiming a part of Brandon's Estate because of a 1996 Judgment where he was ordered to pay $281.00 per month in child support payments. Further, according to the documents that you sent me, that Social Security acknowledges that a total of $5, 916.00 was paid to Brandon Blake on behalf of [Bobby] Simms.
According to my client, your client has not seen Brandon Blake since he was a youngster under five or six years of age. He was a month shy of his twenty-fifth birthday when he died, so your client had not seen him for almost twenty-years. My client does not recall your client ever sending him a birthday card or a Christmas card or ever sending a birthday present or Christmas present or ever having anything to do with his son until his son was tragically killed in an accident.
I am sure you have explained to your client KRS 411.137 and KRS 393.033 respectively and Mandy Jo's Law . . . . Based upon the statute, and the case law, we do not feel as though [Bobby] is entitled to any portion of Brandon's estate.
Accordingly, I will hold these funds in my escrow account for thirty (30) days while you all decide what you want to do. Please notify me as soon as you have made that decision.

(Emphasis added.)

         Over the next month, Attorney Herrington and Attorney Peters exchanged correspondence, but each remained steadfast with respect to Bobby's demand for his share of the wrongful death proceeds. Attorney Herrington wanted Attorney Peters to disburse the proceeds; Attorney Peters refused to do so until a determination was made regarding the Mandy Jo's Law issue.

         In mid-April 2015, Attorney Peters filed an amended probate petition listing Bobby as Brandon's natural father, and naming only Melanie as administrator.[6] At the same time, Attorney Peters filed a motion seeking a hearing before the district court on Bobby's claim that "he is an heir entitled to recover for the wrongful death of Brandon Michael Blake." Specifically, the motion stated that the district court had a right to determine whether Bobby had "standing to make a claim" to the wrongful death proceeds "under KRS 411.137."[7]

         On May 15, 2015, Bobby filed an objection to the amended petition and a motion to name a public administrator with the district court. In the motion, Bobby recounted the facts leading up to his being omitted from the initial probate petition. He asserted that Melanie made false statements to the district court in an attempt to "divest [him] of his rightful statutory share to any wrongful death proceeds arising from [Brandon]'s death." He further explained that Melanie's intentional deceit made her unfit to serve as an administrator, and that a public administrator should be named fiduciary instead. Attorney Herrington sent the motion to Attorney Peters along with a letter requesting Attorney Peters to withdraw because he was a possible witness to Melanie's and Derek's alleged criminal conduct (perjury before the district court in falsely representing Derek to be Brandon's father), and because his joint representation of Melanie, Derek, and the Estate created an irreconcilable conflict.[8] On June 5, 2015, Bobby filed another motion before the district court. This motion is largely duplicative of the previous motion except that Bobby affirmatively requested that Melanie and Derek be removed as co-administrators of Brandon's estate whereas in the previous motion, Bobby had asked only for a public administrator to be appointed.

         C. Circuit Court Proceedings

         On June 4, 2015, before the district court acted on any of the matters pending before it, Bobby filed a civil complaint in circuit court against Brandon's estate, Melanie in her individual capacity and in her official capacity as co-administrator of the estate, and Derek in his individual capacity and in his official capacity as co-administrator.[9] Bobby's complaint alleged that Melanie and Derek falsely swore that Derek was Brandon's father when they petitioned the district court to appoint them as co-administrators of Brandon's estate, and that they intentionally omitted Bobby when asked to list Brandon's kin. According to Bobby, their fraudulent statements and omissions allowed them to settle the wrongful death claims against the tortfeasor and the underinsured motorist carrier, which they carried out for the purpose of enriching Melanie and divesting Bobby. Based on this conduct, Bobby asserted claims for breach of fiduciary duty, negligence, and fraud. As relief, Bobby sought compensatory damages, punitive damages, and costs.[10]

         On August 12, 2015, Melanie, Derek, and the estate filed a joint answer and counterclaim. Therein, they acknowledged that Bobby was Brandon's natural father. However, they denied that Bobby was entitled to any portion of the estate or the wrongful death proceeds. They asserted in their counterclaim that Mandy Jo's Law prevented Bobby from receiving any benefit from the wrongful death settlement or the estate. As relief, they sought dismissal of Bobby's complaint, a determination that Bobby forfeited his rights to Brandon's estate and wrongful death proceeds, and their costs and attorneys' fees. Attorney Richard M. Rawdon, Jr. signed the answer and counterclaim on behalf of all defendants (the estate, Melanie, and Derek).[11]

         Next, in early January of 2016, approximately seven months after Bobby first filed his complaint in circuit court, Bobby filed a motion with the circuit court seeking to remove Melanie and Derek as co-administrators of Brandon's estate, disqualify Attorney Rawdon, appoint a public administrator to oversee the estate, and place the wrongful death proceeds in a receivership. The circuit court held a hearing on Bobby's motions on February 24, 2016. During the hearing, the circuit court orally stated that it was not going to consider Bobby's motion to remove Melanie and Derek as co-administrators. The circuit court indicated that it was unnecessary to decide the motion to remove before taking up the Mandy Jo's Law issue because everyone agreed that the money at issue was a fixed sum being held in escrow by Attorney Peters. Additionally, the circuit court stated that because the conduct at issue occurred before the district court, it was the most appropriate court to consider whether removal was warranted. The circuit court also determined that the same counsel could not represent Melanie/Derek and the estate; however, the circuit court indicated that Attorney Rawdon could continue to represent Melanie/Derek in their individual capacities.[12] After the hearing, Attorney Joseph Wright entered an appearance on behalf of the estate.[13]

         The next major development occurred in April of 2016 when Attorney Peters filed a motion to intervene as a cross-claiming defendant. The circuit court granted Attorney Peters leave to intervene. In his pleading, Attorney Peters requested that he be awarded his $50, 000 contingency fee, and be allowed to pay the $100, 000 net proceeds of the wrongful death settlement into the Circuit Court Clerk's account. Brandon's estate then filed an "intervening cross-claiming complaint" against Attorney Peters. The estate asserted that the contingency fee agreement contained a provision in which Attorney Peters agreed: "All probate work for the Estate is included in this contract at no charge." The estate's counterclaim against Attorney Peters asserted that the provision made Attorney Peters responsible for the estate's on-going legal expenses. It requested Attorney Peters be held responsible for the estate's on-going legal fees and that "any portion of the $50, 000 be used to pay the fees."

         On August 4, 2016, Bobby filed a motion for summary judgment, but the circuit court took the motion under submission until the facts were fully presented to it at the Mandy Jo's Law hearing. On August 8, 2016, a bench trial was held. The circuit court issued its findings of fact and conclusions of law on January 17, 2017. The circuit court found that Bobby did not take much of a role in Brandon's life prior to his move to Scott County and that Bobby, other than paying child support, had virtually no role in Brandon's life after his move to Scott County. Therefore, the circuit court concluded, "[Bobby] is foreclosed by Mandy Jo's Law to receive funds from Brandon's estate or from his wrongful death case."

         This appeal followed. [14]

         II. ...

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