MABEL VINSON AND DON VINSON, HER HUSBAND V. DAVID G . SORRELL
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RENDERED : JUNE 17, 2004
TO BE PUBLISHED
"Suyrrzttr 0.1-aurf of
2002-SC-1012-DG
MABEL VINSON AND DON VINSON,
HER HUSBAND
DATE
APPELLANTS
ON APPEAL FROM THE COURT OF APPEALS
2001-CA-1518-MR
GREENUP CIRCUIT COURT NO. 2000-CI-00388
V.
DAVID G. SORRELL
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
The issue here is whether the natural father of the child whose custody is
the subject of this litigation waived his superior right to custody by clear and convincing
evidence. As we do not believe the clear and convincing evidence standard was met,
we affirm the decision of the Court of Appeals .
The pertinent facts of this difficult custody battle are presented below.
S.V. was born on January 21, 1993 . Her mother, Pamela Vinson, and her father, David
Sorrell, met in a prison van as they were traveling to their respective halfway houses.
They lived together for several years in Cincinnati, but never married . In November of
1996, David left Cincinnati and separated from Pamela. From the time he left
Cincinnati until October of 2000, David made regular monthly child support payments
even though it was not required by a court order.
Pamela and S .V. subsequently
moved to Greenup County, Kentucky. While in Greenup County during the summer of
1999, S.V. began spending extended periods of time with her maternal grandparents,
Don and Mabel Vinson (the "Vinsons").
The Vinsons filed a Verified Motion for custody in August of 2000 alleging
that Pamela was an unfit custodian, but that motion did not identify David as required
by KRS 403.480 .' On January 25, 2001, David was allowed to intervene in the custody
action, and on February 27, 2001, he filed a motion for custody and visitation of S .V .
The Vinsons filed a response to David's motion, and alleged that he was
unfit to have custody of S .V . and that his visitation "on a temporary basis . . . [should]
be supervised and not overnight ." On April 3, 2001, a custody hearing was held before
the Domestic Relations Commissioner (DRC) of the Greenup Circuit Court . The DRC
determined that Pamela's "verified and continued alcohol and drug problems, along
with her other difficulties as outlined above, are the basis for the compelled finding that
KRS 403.480 is as follows :
(1) Every party in a custody proceeding in his first pleading or in an affidavit attached to
that pleading shall give information under oath as to the child's present address, the
places where the child has lived within the last five (5) years, and the names and
present addresses of the persons with whom the child has lived during that period .
In this pleading or affidavit every party shall further declare under oath whether:
(a) He has participated (as a party, witness, or in any other capacity) in any other
litigation concerning the custody of the same child in this or any other state;
(b) He has information of any custody proceeding concerning the child pending in a
court of this or any other state; and
(c) He knows of any person not a party to the proceedings who has physical
custody of the child or claims to have custody or visitation rights with respect to
the child .
(2) If the declaration as to any of the above items is in the affirmative the declarant
shall give additional information under oath as required by the court. The court may
examine the parties under oath as to details of the information furnished and as to
other matters pertinent to the court's jurisdiction and the disposition of the case .
(3) Each party has a continuing duty to inform the court of any custody proceeding
concerning the child in this or any other state of which he obtained information
during this proceeding .
she is unfit and not suitable for the trust of being the custodial parent of [S.VJ" No
finding of unfitness was made with respect to David and the Court of Appeals so noted
as follows : "The trial court did not find David to be unfit . . . ."
On April 6, 2001, the circuit court entered an order granting David
temporary visitation with S .V. every other weekend from Friday evening until Sunday
evening. On May 3, 2001, the DRC filed a report recommending that custody be
awarded to Mabel and Don Vinson . The DRC pointed out that S .V. has lived "solely
and continuously" with the Vinsons, and that David admitted to serving jail time for
trafficking cocaine . In this proceeding, David denied any drug involvement from the
time of his release in 1992 . The DRC found that David had infrequent and sporadic
contact amounting to about 3 to 4 annual visits with S .V . from 1996 to May of 2001 .
The remainder of the DRC's findings are as follows :
The respondent now lives [with] his fiancé and has fathered
another child out of wedlock. He states that they intend to
be married and that this would be the home into which he is
requesting that [S .VJ be placed under his care, custody and
control . The evidence is uncontradicted, that while the
intervening petitioner and respondent lived together there
were several documented incidents of domestic violence .
The respondent further admits that he pled guilty as recently
as six months ago to an episode of domestic violence with
his present girlfriend with whom he now lives . The
intervening petitioner has paid some support to respondent
during their four or five year separation, although there is no
apparent court order requiring same over the past several
years . The child [S .VJ has spent very little, if any, extended
visitation with the respondent other than some occasional
daytime visitation in this area .
The DRC found that custody of S .V. should be granted to the Vinsons on
the grounds that "the intervening petitioner's lack of contact with [S.VJ from the time
she moved to this area in 1996 to the present constitutes a waiver of his superior right
to custody as the biological father, Shifflet v. Shifflet, Ky., 891 S .W .2d 392 [(1995)]."
The DRC found that S .V. was in a stable home environment with the Vinsons and that it
was in her best interests that custody be awarded to them . On June 18, 2001, the trial
court confirmed the DRC's report in full .
On November 1, 2002, the Court of Appeals rendered an unpublished
opinion reversing on the grounds that the "trial court's finding that David had waived his
superior right to custody was not supported by clear and convincing evidence and that
the award of custody to the Vinsons was an abuse of discretion ." The Court of Appeals
also remanded to the trial court with orders that further proceedings be conducted
including an award of custody to David, visitation rights to Pamela, and child support
from Pamela to David . We granted discretionary review of the decision of the Court of
Appeals.
Appellants argue that the trial court's decision should be reinstated on the
following grounds: (1) The evidence was clear and convincing in the circuit court that
David waived his superior right to custody, and (2) a reviewing court cannot substitute
its findings of fact for those of the trial court. Appellee, David Sorrell, counters that the
Court of Appeals should be affirmed on the following grounds: (1) There was no clear
and convincing evidence of waiver of his superior right, (2) Appellants failed to serve
him with the petitions for emergency and temporary custody filed in August 2000, (3)
Appellee paid regular child support from 1996 until late 2000, and (4) Appellee had a
pending motion for visitation when Appellants filed for custody in August of 2000.
Parents of a child have a fundamental, basic and constitutional right to
raise, care for, and control their own children . In Moore v. Asente ,3 this court
examined how a non-parent may pursue custody .
When a non-parent does not meet
the statutory standard of de facto custodian ,4 the non-parent pursuing custody must
prove either of the following two exceptions to a parent's superior right or entitlement to
custody: (1) that the parent is shown by clear and convincing evidence to be an unfit
custodian, or (2) that the parent has waived his or her superior right to custody by clear
and convincing evidence.
In Fitch v. Burns, this Court examined the clear and convincing evidence
standard in a custody dispute between the natural father and grandparents who had
possession of the child . In Fitch, the trial court did not indicate the exact standard of
review that was applied, but there were suggestions that the preponderance of the
2 Davis v. Collinsworth, Ky., 771 S.W.2d 329, 330 (1989) (noting that "[t]he United
States Supreme court has recognized that parents have fundamental, basic and
constitutionally protected rights to raise their own children and that any attack by third
persons (and we would include grandparents in that category) seeking to abrogate that
right must show unfitness by 'clear and convincing evidence ."')(Emphasis original) .
3 _Id.
4 KRS 403.270 provides :
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 included in determining whether the
child has resided with the person for the required minimum
period .
5 Moore v. Asante , 110 S.W .3d 338, 359 (2003).
s
Ky ., 782 S .W.2d 618, 622 (1989).
5
evidence standard was applied .' The court held that the clear and convincing evidence
standard was required under those circumstances, and described that standard as
follows :
McCormick states that the "phrasing within most jurisdictions
has not become as standardized as is the 'preponderance'
formula," and that "no high degree of precision can be
obtained by these groups of adjectives ." He concludes that
the best formulation of the various terms that have been
used to express this concept is that the trier of fact "must be
persuaded that the truth of the contention is 'highly
probable .'" (Citations Omitted) .
We conclude that where the "burden of persuasion" requires
proof by clear and convincing evidence, the concept relates
more than anything else to an attitude or approach to
weighing the evidence, rather than to a legal formula that
can be precisely defined in words. Like "proof beyond a
reasonable doubt," "proof by clear and convincing evidence"
is incapable of a definition any more detailed or precise than
the words involved . It suffices to say that this approach
requires the party with the burden of proof to produce
evidence substantially more persuasive than a
preponderance of evidence, but not beyond a reasonable
doubt .8
In the case at bar, the best interest of the child test appears to have been the decisional
basis rather than the clear and convincing evidence standard required in custody
disputes between parents and non-parents .
Greathouse v. Shreve 9 thoroughly discussed the issue of voluntary and
intentional waiver of a parent's superior right to custody. This Court first discussed the
following definition of waiver:
The common definition of a legal waiver is that it is a
voluntary and intentional surrender or relinquishment of a
Id .
8 Id,
9 Ky., 891 S .W .2d 387, 390 (1995).
known right, or an election to forego an advantage which the
party at his option might have demanded or insisted upon.' °
This Court in an extended analysis examined the following requirements of a voluntary
and intentional waiver:
We believe the issue as to whether Bobby Greathouse's
conduct amounted to a "voluntary and intentional surrender
or relinquishment of a known right" (Barker v. Stearns Coal,
quoted supra ) raises serious and complex questions about
the nature of the father's acquiescence in custody by the
grandmother, and about the extent and duration of such
acquiescence, all of which bear upon whether the waiver
principle should apply here . . . We recognize that, at
present, in usual circumstances grandparents must realize,
when they take in a grandchild to care for, that agreeing to
care for a grandchild is a temporary arrangement, not a
surrender of custody, regardless of the quality of care and
the bonding that follows . A short term visit or delivery of
possession shall not be construed as proof a knowing and
voluntary waiver has occurred .
What evidence constitutes proof a parent, who is not proved
unsuited to the trust (KRS 405.020(1)), has waived his or her
superior custodial right when that right is challenged by a
non-parent? As stated above, waiver requires proof of a
"knowing and voluntary surrender or relinquishment of a
known right." Because this is a right with both constitutional
and statutory underpinnings, proof of waiver must be clear
and convincing. As such, while no formal or written waiver is
required, statements and supporting circumstances must be
equivalent to an express waiver to meet the burden of
proof.'
Without a finding that the parent is unfit or without clear and convincing evidence of a
knowing and voluntary surrender of parental rights, a parent is entitled to custody . 12
The recommendation of the DRC and the decision of the trial court fail to
demonstrate that David Sorrell expressly or intentionally relinquished his parental right
' o _Id . at 390 (quoting Barker v. Stearns Coal & Lumber Co ., 291 Ky. 184, 163 S.W .2d
466, 470 (1942)).
11 _ at 390-91 .
Id.
12
Diaz v . Morales, Ky . App ., 51 S.W.3d 451, 454 (2001).
7
to custody of his child. Case law clearly demonstrates that allowing S.V. to live with her
grandparents and David's sporadic participation in S.Ws upbringing does not constitute
express waiver . 13
The Court of Appeals relied in part on the factors set forth in Justice
Spain's concurring opinion in Shifflet v. Shifflet. 14 Those factors are length of time the
child has been away from the parent, circumstances of separation, age of the child
when care was assumed by the non-parent, time elapsed before the parent sought to
claim the child, and frequency and nature of contact, if any, between the parent and the
child during the non-parent's custody . 15 Applying these factors, the Court of Appeals
noted that while David did not visit with S.V. for significant periods, he attempted some
visits. There was evidence that the Vinsons thwarted his efforts and that Pamela was
not agreeable to David visiting with S.V.
A factor that weighs in David's favor is that he paid child support without a
court order for about four years . The Vinsons sought custody in August of 2000 and
only a few months elapsed without payment. S .V had been living with the Vinsons for
only two months before David sought to intervene and obtain custody. Moreover, David
had a pending motion for visitation when the Vinsons filed for custody in August of
2000 . These actions are wholly inconsistent with a waiver of David's superior right to
custody of his child .
From the evidence of David's attempts to obtain visitation rights and
custody of his daughter, the difficulties he experienced in establishing contact with her,
13 Greathouse, 891 S .W .2d at 390 .
14
891 S.W.2d 392.
15
Id . at 397.
and his regular payment of child support, it cannot be said that he expressly waived his
right to custody .
In response to Appellants' claim that the Court of Appeals substituted its
findings for those of the trial court, we note that a reviewing court is entitled to set aside
the trial court's findings when those findings are clearly erroneous. 16 To determine
whether findings are clearly erroneous, reviewing courts must focus on whether those
findings are supported by substantial evidence . 17 In Moore v. Asente , 18 this Court
defined substantial evidence as follows :
"[S]ubstantial evidence" is "[e]vidence that a reasonable
mind would accept as adequate to support a conclusion"
and evidence that, when "taken alone or in the light of all the
evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men ." Regardless of
conflicting evidence, the weight of the 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" because
judging the credibility of witnesses and weighing evidence
are tasks within the exclusive province of the trial court.
Thus, "[m]ere doubt as to the correctness of [a] finding [will]
not justify [its] reversal," and appellate courts should not
disturb trial court findings that are supported by substantial
evidence. (Citations omitted) . 19
Upon review of the evidence underlying the findings of the DRC and adopted by the trial
court, we agree with the Court of Appeals that there was not substantial evidence to
meet the stringent requirements of waiver.
Finally, we may not consider whether David was an unfit parent . Although
the Vinsons alleged unfitness, no such finding was made in the trial court, a fact noted
16
CR 52 .01 .
Moore, 110 S .W.3d at 354.
1s
Id.
19'I .
at 353-54 .
17
by the Court of Appeals. It is fundamental that a party who asserts a claim must prove
that claim to the satisfaction of the trier of fact, and on failure of the fact-finder to rule on
the contention, the pleading party must seek a ruling from the trial court by means of a
request for additional findings of fact .
In particular, CR 52.04 requires a motion for additional
findings of fact when the trial court has failed to make
findings on essential issues . Failure to bring such an
omission to the attention of the trial court by means of a
written request will be fatal to an appeal. Cherry v. Cherry.
Ky ., 634 S.W.2d 423 (1982) . The thread which runs through
CR 52 is that a trial court must render findings of fact based
on the evidence, but no claim will be heard on appeal unless
the trial court has made or been requested to make
unambiguous findings on all essential issues . .2°
As the trial court did not find David to be unfit, we may assume that there was
insufficient evidence of unfitness or that the Vinsons abandoned the claim . In either
event, whether David was unfit was not preserved for appellate review. As such, there
is no basis to remand the question of unfitness to the trial court.
Accordingly, we affirm the Court of Appeals .
Cooper, Graves, Keller, and Wintersheimer, JJ ., concur. Johnstone, J .,
files a separate opinion concurring in part and dissenting in part in which Stumbo, J.,
joins .
20Eiland v. Ferrell , Ky., 937 S .W.2d 713, 716 (1997); see also Jones v. Jones, Ky.
App., 577 S .W .2d 43 (1979) (holding that in a custody dispute where the trial judge did
not make a finding and the mother failed to request a finding of fact as to her fitness,
CR 52 .04 prohibits reversal or remand on this ground) .
10
COUNSEL FOR APPELLANTS :
James W. Lyon, Jr.
LYON & KENDALL
P .O . Box 675
Greenup, KY 41144-0675
COUNSEL FOR APPELLEE :
Roger W . Hall
Catherine C. Hughes
WILLIAMS, HALL & LATHEROW, P .S .C.
1505 Carter Avenue
P .O. Box 2008
Ashland, KY 41105-2008
RENDERED : JUNE 17, 2004
TO BE PUBLISHED
,*uyrrmr (~vurf of
2002-SC-1012-DG
`t rufurhV
,9
MABEL VINSON AND DON VINSON,
HER HUSBAND
V.
APPELLANTS
ON REVIEW FROM THE COURT OF APPEALS
2001-CA-1518-MR
GREENUP CIRCUIT COURT NO. 2000-CI-00388
DAVID G . SORRELL
APPELLEE
OPINION BY JUSTICE JOHNSTONE
CONCURRING IN PART AND DISSENTING IN PART
To the extent the majority affirms the Court of Appeals' decision that the trial
court clearly erred in finding that David Sorrell "waived" his superior right to custody, I
concur. The finding simply was not supported by clear and convincing evidence .
Accordingly, the trial court incorrectly relied on David's "waiver" as a basis to utilize the
"best interest of the child" standard to determine custody as between the father and the
maternal grandparents .
However, I respectfully disagree with the majority inasmuch as it affirms the
Court of Appeals' decision to remand this case to the trial court directing "further
proceedings . . . including an award of custody to David, visitation rights to Pamela, and
child support from Pamela to David ." Slip op . a t 4 .
As the majority points out, when a non-parent does not meet the statutory
standard of a de facto custodian, in order to defeat a parent's superior right or
entitlement to custody, the non-parent must prove by clear and convincing evidence
that the parent is "unfit" or has "waived" his or her superior custody rights . See Moore
v. Asente , Ky., 110 S .W.3d 336, 359 (2003) . Under the unfitness exception, "the
nonparent must first show by clear and convincing evidence that the parent has
engaged in conduct similar to activity that could result in the termination of parental
rights by the state . Only after making such a threshold showing would the court
determine custody in accordance with the child's best interest." Moore, 110 S.W .3d at
360 . In the present case, the Vinsons allege that David is unfit to have custody of S .V.
Citing CR 52 .04, Bland v. Ferrell , Ky., 937 S.W.2d 713 (1997), and Jones v.
Jones , Ky. App., 577 S .W.2d 43 (1979), the majority concludes that further
consideration of the unfitness issue is prohibited . Under the facts and circumstances of
this case, I disagree . In Bland, a party was precluded from appeal due to an untimely
objection to a monetary award . In Jones, the unsuccessful mother attempted to appeal
a custody award without having sought more definite reasons for the custody ruling . In
the cited cases, it was the unsuccessful litigants below that were required to seek more
exacting findings from the trial court. It seems that to require successful litigants, such
as the Vinsons, who were awarded custody by the trial court, to seek additional findings
regarding the unfitness of the father when they prevailed on the waiver issue in the trial
court invites judicial waste. The majority's assumption that there was insufficient
evidence of unfitness or that the Vinsons abandoned the claim is unfounded . At the
trial court level, it was determined that "[Pamela's] verified and continued alcohol and
drug problems along with her other difficulties as outlined above [including 4-5 felony
drug convictions, manic depression, bi-polar disorder, and a substantiated incident of
child neglect regarding S .V.] are the basis for the compelled finding that she is unfit and
not suitable for the trust of being the custodial parent of [S.V.]." The trial court further
found that David admitted to serving time for trafficking in cocaine, that there was
uncontroverted evidence of domestic violence between David and SM.'s mother,
Pamela, when they lived together, and that there was a recent episode of domestic
violence between David and his current girlfriend with whom he shares a home to which
he intends to move S .V.
When, as in the present case, there exists a legitimate question as to the fitness
of a parent seeking custody, the court has an obligation to consider the issue in
determining custody . The court has a role in protecting the welfare of this child .
For the reasons stated, I would remand this case to the trial court for further
consideration of all relevant factors and circumstances as they presently exist and for a
determination on the custody issue consistent with the principles set forth in this
opinion . If the trial court is persuaded by clear and convincing evidence that David is
unfit and not suited to the trust, then custody may be decided on what is in the child's
best interest. Absent a determination that David is unfit, his superior right to custody
should prevail .
Stumbo, J ., joins.
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