David Lemaster v. Kendra Stiltner ( 2023 )

RENDERED: JULY 14, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0799-MR
DAVID LEMASTER APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. FAMILY COURT DIVISION
HONORABLE JENNIFER BARKER NEICE, SPECIAL JUDGE
ACTION NO. 15-CI-00542
KENDRA STILTNER AND
CHRISTOPHER CLAY STILTNER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
EASTON, JUDGE: The Appellant, David Lemaster (“David”), appeals from the
Greenup Family Court’s denial of his motion to intervene in a custody action. The
Appellee, Kendra Stiltner (“Kendra”), argues David did not have standing to
intervene because he could not be considered a de facto custodian under Kentucky
law. Having reviewed the record and the applicable law, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Kendra is the biological mother of the minor child, M.S., who was
born in July 2012. At the time of M.S.’s birth, Kendra was married to Christopher
Clay Stiltner (“Clay”), the biological father of M.S. When M.S. was born, both
Kendra and Clay were under indictment for child abuse against one of Kendra’s
older children. Because of this, the Cabinet for Health and Family Services
(“Cabinet”) filed a Petition for Dependency, Neglect, or Abuse (“DNA”), alleging
risk of harm to M.S.
Prior to the filing of the DNA petition, Kendra and Clay agreed, upon
the recommendation of the Cabinet, for M.S. to be placed with Denise Stiltner
(“Denise”), who was Clay’s mother. David was Denise’s long-term paramour, and
they lived together. At the Temporary Removal Hearing during the DNA
proceeding, the family court granted temporary custody of M.S. to Denise.
The Adjudication Hearing was continued multiple times due to the
ongoing criminal case. The DNA action was finally adjudicated on April 28, 2014.
Kendra and Clay stipulated to neglect or abuse. They had pled guilty to amended
misdemeanor charges in the criminal action. Due to their guilty plea and
stipulation, the family court granted permanent custody of M.S. to Denise.
-2-
On December 18, 2015, Kendra filed a Petition for Custody, listing
Denise and Clay as Respondents. In April 2016, the family court granted Kendra
supervised visits with M.S. Denise appealed this Order, which was affirmed by
this Court in 2017.1
In October 2018, Kendra filed a motion for sole custody of M.S., or,
in the alternative, for unsupervised parenting time. An Agreed Order was entered
on February 13, 2019, in which custody remained with Denise, but Kendra was to
have timesharing with M.S. The Agreed Order contained a plan to gradually
increase Kendra’s time with M.S. and removed the supervision requirement.
In May 2021, Denise filed a motion asking the family court to either
suspend Kendra’s timesharing or to make it supervised, based upon an injury M.S.
received on a trampoline while in Kendra’s care. Kendra filed a response, as well
as her own motion to increase her time with M.S. Several continuances occurred
based upon Denise’s health issues, issues of the parties’ counsel, and a special
judge appointment due to the recusal of the previous judge. Before a hearing was
held by the family court, Denise passed away on May 21, 2022.
On May 23, 2022, David filed a Motion for Intervention and
Emergency Relief. In this motion, David stated he had M.S. in his care but needs
legal authority to make decisions. He asked the family court to grant him
1
Stiltner v. Stiltner, No. 2016-CA-000679-ME, 2017 WL 1102978 (Ky. App. Mar. 24, 2017).
-3-
emergency custody of M.S. On May 27, 2022, Kendra filed a motion for custody,
asking the family court to immediately restore custody to her. She additionally
filed a response to David’s motion objecting to intervention. Kendra argued David
had no standing to intervene. The family court scheduled an emergency hearing
for May 31, 2022, at which it granted temporary custody of M.S. to Kendra. The
family court set another hearing date for June 23, 2022.
On June 1, 2022, David filed a Petition for Custody, claiming he is a
de facto custodian of M.S., and alleging Kendra has waived superior custody and
that she is unfit to have custody. He additionally filed a renewed Motion for
Intervention and Emergency Relief. The family court heard these motions on June
7, 2022. On that date, the family court overruled all of David’s motions and
cancelled the hearing for later in June.
David filed a Motion to Alter, Amend, or Vacate the family court’s
oral ruling of June 7, which the family court overruled. A final written order was
entered on June 21, 2022, memorializing the oral orders stated on June 7. In this
later order, the family court ruled David’s motion to intervene was untimely, and
that he failed to allege any set of facts which would qualify him as a de facto
custodian of M.S. The family court ruled, pursuant to Burgess v. Chase, 629S.W.3d 826 (Ky. App. 2021), David could not qualify as a de facto custodian
alongside Denise as she was the only one granted custody of M.S.
-4-
STANDARD OF REVIEW
We review a trial court’s order granting or denying intervention for
clear error. A.H. v. W.R.L., 482 S.W.3d 372, 373 (Ky. 2016). “In general, a court
is given broad discretion in determining whether or not one should be permitted to
intervene.” Ipock v. Ipock, 403 S.W.3d 580, 583 (Ky. App. 2013). “The ‘clearly
erroneous’ standard is sufficiently broad to permit the reviewing court to adopt a
method of review which best fits the questions involved and the particular facts in
a specific case. The appellate court should review each case according to what is
most appropriate under the specific circumstances.” Reichle v. Reichle, 719
S.W.2d 442, 444 (Ky. 1986).
We review a family court’s legal conclusions under the de novo
standard. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). Whether a
nonparent can be classified as a de facto custodian is a matter of law. Hoskins v.
Elliott, 591 S.W.3d 858, 861 (Ky. App. 2019). “However, a court’s evaluation of
the timeliness of a motion to intervene is reviewed under an abuse of discretion
standard.” Hazel Enterprises, LLC v. Cmty. Fin. Servs. Bank, 382 S.W.3d 65, 67
(Ky. App. 2012). A finding of fact, including timeliness, is clearly erroneous if not
supported by substantial evidence, which is evidence sufficient to induce
conviction in the mind of a reasonable person. Moore v. Asente, 110 S.W.3d 336,
354 (Ky. 2003).
-5-
ANALYSIS
We must determine if the family court erred in not allowing David to
intervene in this action. “Standing and intervention are two distinct concepts,” and
standing to seek custody is not a condition for intervening in a custody action.
A.H., supra at 374.
The rules governing the ability to intervene in a proceeding are CR2
24.013 and 24.02.4 CR 24.01 gives the power to intervene by right if its mandates
are met. CR 24.02 “provides trial courts with discretion to allow intervention in
cases if the interest of the movant so warrants, even if the asserted interest fails to
satisfy the dictates of CR 24.01[.]” A.H., supra at 375.
CR 24.01 states:
(1) Upon timely application anyone shall be permitted to
intervene in an action (a) when a statute confers an
unconditional right to intervene, or (b) when the
applicant claims an interest relating to the property or
transaction which is the subject of the action and is so
situated that the disposition of the action may as a
practical matter impair or impede the applicant’s ability
to protect that interest, unless that interest is adequately
represented by existing parties.
CR 24.02 states:
2
Kentucky Rules of Civil Procedure.
3
Intervention of Right.
4
Permissive Intervention.
-6-
Upon timely application anyone may be permitted to
intervene in an action: (a) when a statute confers a
conditional right to intervene or (b) when an applicant’s
claim or defense and the main action have a question of
law or fact in common. When a party to an action relies
for ground of claim or defense upon any statute or
executive order administered by a governmental officer
or agency or upon any regulation, order, requirement, or
agreement issued or made pursuant to the statute or
executive order, the officer or agency upon timely
application may be permitted to intervene in the action.
In exercising its discretion the court shall consider
whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties.
David does not specify under which rule he sought to intervene, but
CR 24.01 is the proper rule for analysis in this case. “As compared to matter-of-
right intervention in Rule 24.01, permissive intervention is more concerned with
consolidating common legal and factual questions than with protecting the
implicated rights of non-parties.” Bailey v. Bertram, 471 S.W.3d 687, 690-91 (Ky.
2015), as corrected (Jun. 10, 2015). Regardless, under both rules, a motion to
intervene must be timely. Therefore, we first examine whether David’s motion to
intervene was timely.
A court may consider the following factors to determine whether a
motion to intervene was timely: “‘(1) [T]he point to which the suit has progressed;
(2) the purpose for which intervention is sought; (3) the length of time preceding
the application during which the proposed intervenor knew or reasonably should
have known of his interest in the case; (4) the prejudice to the original parties due
-7-
to the proposed intervenor’s failure, after he or she knew or reasonably should
have known of his or her interest in the case, to apply promptly for intervention;
and (5) the existence of unusual circumstances militating against or in favor of
intervention.’” Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004) (quoting
Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
The dispositive factor in this case is the third factor listed above, the
length of time preceding the application during which the proposed intervenor
knew or reasonably should have known of his interest in the case. This custody
action was filed in December 2015. David did not move to intervene until May
2022. Between the six and one-half years the case was pending, there were
multiple motions, amendments to the custody orders, and even a completed appeal.
David was clearly aware of the action throughout the entire life of the
case, as he was listed as someone who could provide care to M.S. by the Cabinet at
the beginning of the DNA action, which occurred prior to the custody action.
David offers no adequate explanation for his delay. He makes no argument that
anyone other than himself is responsible for his delay in filing an intervention
motion. He simply failed to do so as he was content to allow Denise to fight the
custody battle until she no longer could do so.
Denise apparently began having serious health issues at some point
between January and mid-March 2022. While we are uncertain as to the specifics
-8-
of Denise’s health issues, the record indicates it required hospitalization. At this
point, David still did not see the need to intervene in the action. It was not until
Denise had unfortunately passed away that he felt compelled to intervene.
As to the remaining factors, there were no findings made regarding
them, and little evidence presented concerning them. As far as the progression of
the case, there were pending motions by both Kendra and Denise in this action.
Family and custody cases are distinct from most other civil cases, in that “final
judgments” can be amended pursuant to KRS5 403.270 or 403.340. This case had
been ongoing for over six years.
Regarding David’s purpose for intervention, there is no indication that
David filed to intervene for any purpose other than to care for M.S. It appears
from the record that David had acted in a caretaking role of the child and wished to
continue to do so. There is no evidence of any improper motive on David’s part.
As for prejudice to the original parties, allowing David to intervene
would certainly prejudice Kendra. Throughout the years this custody action was
ongoing, Kendra was pursuing custody of her child against Denise, and only
Denise. Clay, while a named party as the child’s father, was not actively
participating or attempting to regain custody of M.S. Adding another party against
whom Kendra must litigate for custody would certainly prejudice her.
5
Kentucky Revised Statutes.
-9-
Regarding “unusual circumstances,” David has no familial
relationship to M.S. While he may have acted in a grandparent-like role, he was
not related to M.S. by blood or by marriage. This circumstance tends to weigh
against intervention. There are no other unusual circumstances weighing in favor
or against mitigation.
“Timeliness is a question of fact, which generally should be left to the
circuit court.” Hazel Enterprises, supra at 68 (citing Ambassador College v.
Combs, 636 S.W.2d 305, 307 (Ky. 1982)). The family court determined that,
under the circumstances of this case, David’s motion was untimely, and that he had
more than adequate opportunity to intervene at a prior time. We do not find the
family court’s finding to be clearly erroneous. Due to this untimeliness, the family
court did not abuse its discretion in denying the intervention.
The family court went further to state David alleged no set of facts
which would qualify him as a de facto custodian of M.S. We will briefly address
this conclusion.
KRS 403.270 defines a de facto custodian as follows:
(1) (a) 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
within the last two (2) years has resided with the
person for an aggregate period of six (6) months or
more if the child is under three (3) years of age and
-10-
for an aggregate 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.
(b) A person shall not be a de facto custodian until a
court determines by clear and convincing evidence
that the person meets the definition of de facto
custodian established in paragraph (a) of this
subsection. 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 under this section
and KRS 403.280, 403.340, 403.350, 403.822, and
405.020.
David argues that because he and Denise had M.S. in their custody for
most of her life, he should be determined to be a de facto custodian. His argument
fails for several reasons.
First, any time a parent is pursuing a case to regain custody of the
child tolls the timing requirement. KRS 403.270(1)(a). “Any direct participation
in a child custody proceeding that demonstrates a parent’s desire to regain custody
of their child is sufficient to toll the de facto time requirement under KRS
403.270.” Meinders v. Middleton, 572 S.W.3d 52, 59 (Ky. 2019). This includes
working a case plan and cooperating in a DNA proceeding. Hoskins, supra at 862.
-11-
Likewise, once Kendra filed the current circuit action to regain custody of M.S.,
this tolled the time requirement.
Permanent custody of M.S. was granted to Denise on April 28, 2014.
Prior to that date, it appears from the record that Kendra and Clay both actively
participated in the DNA proceeding and worked their case plan. Therefore, April
28, 2014, is the date when Denise’s time would begin in calculating de facto
custodian status. Kendra filed her petition for custody in circuit court in December
2015, over a year later. Taking those facts at face value, Denise would have
qualified as a de facto custodian of M.S. at that time.
This does not mean David also obtained de facto custodian status. He
was never granted legal custody of M.S. – only Denise was. Ultimately, a
determination of whether David qualified as a de facto custodian of M.S. in
December 2015 is not required. This Court has determined that de facto custodian
status is not necessarily a permanent status. It must be addressed each time the
status is asserted. See Sullivan v. Tucker, 29 S.W.3d 805 (Ky. App. 2000); Turner
v. Hodge, 590 S.W.3d 294 (Ky. App. 2019).
Kendra sought to regain custody of M.S. beginning in December
2015. David did not seek to intervene until 2022. In the meantime, Kendra and
Denise (and Clay, to a lesser extent) participated in the custody action. We find no
indication in the record of Denise ever asking the family court to designate her as
-12-
de facto custodian. Kendra obtained supervised visits in 2016. She later obtained
unsupervised overnight visits in 2019. Therefore, even assuming Denise and/or
David could have been designated as de facto custodians prior to 2016, that
designation would have ceased in 2019 when Kendra became much more involved
in M.S.’s care.
David argues pursuant to Krieger v. Garvin, 584 S.W.3d 727 (Ky.
2019), he should be able to be designated as M.S.’s de facto custodian because
Denise met the requirements. The Kentucky Supreme Court in Krieger ruled that a
grandparent and their long-term partner were not precluded from being a child’s de
facto custodians simply because they were not married. But the facts of Krieger
are distinguishable from the circumstances of this case. First, the appellants in
Krieger pursued a custody action together after both were given temporary custody
of the child in a DNA proceeding. Id. at 728. Additionally, both moved the circuit
court to find them the child’s de facto custodians.
David had never participated in the custody action prior to his
attempted intervention. He was never named as a party and did not move to
intervene for more than six years. David was never named in any court orders.
While at some point Denise could have been designated a de facto custodian of
M.S. had she asked the family court to do so, David was unable to meet the
requirements at the time he sought to intervene.
-13-
Much like the trial court’s discretion to allow intervention of a party,
the trial court also has wide discretion in considering a party’s motion to amend a
pleading. First Nat’l Bank of Cincinnati v. Hartman, 747 S.W.2d 614, 616 (Ky.
App. 1988). In Hartman, this Court stated that one factor a court may consider in
deciding whether to allow an amendment is futility. Id. We believe this factor is
also applicable when considering intervention. Because David could not meet the
definition of de facto custodian, allowing his intervention would have been futile.
For this reason, it was certainly not an abuse of discretion for the family court to
decline David’s request for intervention.
CONCLUSION
The family court’s findings of fact are supported by the evidence and
not erroneous. The family court committed no error of law and properly acted
within its discretion. The Greenup Family Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE KENDRA
STILTNER:
Brandon M. Music
Grayson, Kentucky Robert T. Renfroe
Greenup, Kentucky
-14-