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Court of Appeals of Kentucky.


NO. 2011–CA–000606–ME

Decided: January 13, 2012

BEFORE:  MOORE, STUMBO, AND WINE, Double JUDGES. BRIEF FOR APPELLANT:  Rhonda E. Taylor Owensboro, Kentucky BRIEF FOR APPELLEE:  Allison B. Rust Henderson, Kentucky



Daniel Sanders appeals the order of the Henderson Family Court denying his motion for a new trial from an order modifying child custody.   After a thorough review of the record, we reverse the family court's order denying Daniel's request for a new trial, vacate the family court's January 19, 2011 order modifying custody of the parties' minor child, and remand.

Given the procedural posture of this matter, it is necessary for the Court to detail several proceedings and the dates on which they took place.   Daniel and Kayla Hagar entered into an agreed joint custody order with respect to the parties' minor child in October 2008.   Kayla contends that the joint custody arrangement was unsuccessful, and, on October 6, 2010, she moved for sole custody of the parties' child.   The family court set a hearing for December 8, 2010.

On November 17, 2010, Daniel's counsel moved to withdraw from the case.   This motion was granted on November 22, 2010.   Thereafter, on November 30, 2010, Daniel, acting pro se, filed a motion, which is somewhat difficult to decipher.   It stated that he sought a review or hearing in the case because his attorney withdrew from the case and he felt that his prior attorney had “personal issues that [were] affecting this case[.]”  Two days prior to the hearing, the family court denied Daniel's request, which appears to have been construed by the family court as a motion for a continuance to retain new counsel.

Daniel did not appear for the hearing on December 8, 2010.   Prior to the commencement of the hearing, his mother, in person, informed the family court that Daniel was unable to attend because he had been taken to the emergency room at the hospital for chest pains. Double Regarding this, Kayla's counsel informed the court that she had witnesses subpoenaed and was prepared to move forward.   While Daniel's mother was still present in the courtroom, the court stated that it was going to (1) allow Kayla to present her proof;  (2) leave the record open;  (3) allow Daniel to review Kayla's evidence;  and (4) schedule a second day of testimony at a later time, apparently when Daniel could appear to present his proof and cross examine Kayla's witnesses.   The court noted, however, that Daniel would have to present medical proof that he was in the hospital.

Thereafter, the court took a short recess.   After returning from the recess, the court stated that “let the record reflect that we have confirmed that [Daniel] is in the emergency room at St. Mary's Hospital.”  Double Despite the court's having verified with the hospital that Daniel was in the emergency room, the family court allowed Kayla to present her evidence.   Thereafter, the family court memorialized its oral ruling in a written order dated December 13, 2010, but not entered until December 21, 2010, which stated

[t]he request of Mrs. Sanders, [Daniel]'s mother, to continue the Hearing on the case hearing on [Kayla]'s motion is hereby OVERRULED.[ Double r] [Kayla] is entitled to proceed with her proof.   The record shall be left open and [Daniel] will have an opportunity to review the testimony that was presented and recall for purposes of cross examination, any witnesses called by [Kayla]․  [Daniel] is to contact the Court for a time to review the testimony and to schedule the continuation of the hearing.

The court's order did not include any deadlines in which Daniel was to contact the court.   Moreover, the court made no legal determinations in the order.

On January 4, 2011, Kayla, via counsel, filed a motion for contempt, alleging Daniel failed to comply with the visitation order.   This motion was noticed to be heard on January 10, 2011, and was served on Daniel.

On January 10, 2011, Daniel's newly retained counsel served a copy of her entry of appearance on Kayla's counsel, and the entry of appearance was entered on January 11, 2011.   On that same day, Kayla, via counsel, re-noticed her motion for contempt to be heard on January 24, 2011.   She served this notice on Daniel's counsel.

On January 19, 2011, Daniel's counsel filed a motion for contempt against Kayla, noticed to be heard on January 24, 2011.   On the same date, Daniel's counsel also filed a motion to review the December 8, 2010 proceedings and for a date to be set to schedule his proof on the custody issue, also noticed to be heard on January 24, 2011.   Attached to this motion were Daniel's medical records verifying that he was in the emergency room on the morning of December 8, 2010.   From filings in the record, it appears that counsel, without the consent of the court, agreed that their various motions would be noticed to be heard on January 24, 2011.

Although the court's order entered on December 21, 2010 did not set a deadline for Daniel to act, on January 19, 2011 the family court entered a custody order.   Apparently in reference to the December 21, 2010 order, the court stated that it had notified Daniel that he was to contact the court to set a date and time to continue the hearing, and that, as of January 19, 2011, he had failed to do so.   Therefore, the family court made its determination based upon the evidence presented by Kayla at the hearing.   It granted sole custody of the child to Kayla, without allowing Daniel to present any proof.

After receiving the family court's order, Daniel immediately (January 19, 2011) filed a motion for a new trial and a motion to alter, amend, or vacate the family court's order.   He argued that he had been at the hospital suffering from chest pain on the morning of the hearing;  Double that the family court did not set a date by which Daniel needed to have submitted a motion;  and that he had filed his motion on the morning of the date on which the family court had entered its order.

The family court denied Daniel's motion, stating that thirty days had passed since the order had been entered informing him that he had the right to review the proceedings and schedule a continuation of the hearing and that nine days had passed since Daniel's attorney had submitted an entry of appearance. Double The family court acknowledged, however, that Daniel's counsel had gone to the “Court's suite of offices and requested the video tape of the December 8, 2010 hearing” after entering her notice of appearance.   Nonetheless, Daniel's motion was denied.

Daniel thereafter timely moved for more specific findings pursuant to CR  Double 52.02, and the family court reiterated that its previous order “overrul[ed] the Respondent's previous motion for a new trial and to alter, vacate and amend its ruling of January 19, 2011.”   Daniel now appeals.

We review the denial of a motion for a new trial for an abuse of discretion and will reverse only upon a finding of clear error.  Kaminski v. Bremner, Inc., 281 S.W.3d 298, 304 (Ky.App.2009).

Although both parties focus on the issue of whether the court erred in denying a continuance of the December 8, 2010 hearing, the fact is the court granted a continuance, at least in part, to allow Daniel to present his proof.   And, Daniel has not identified anywhere in the record where he or counsel on his behalf objected to, by motion or otherwise, the family court's decision to allow the proceedings to take place as the court orally stated it would on December 8, 2010, and as memorialized in the order of December 21, 2010.   Consequently, the issue of allowing Kayla to proceed with proof on December 8, 2010 has not been preserved by objection, motion or otherwise.   Even if Daniel's health prevented him from personally appearing to place an objection on the record on December 8, 2010, the record is void of any protest at any time by Daniel regarding how the court acted in reference to allowing the December 8 hearing to proceed.   Rather, based on the motions filed by Daniel via counsel, he seemed content with the court's ruling because it granted him an opportunity to have his day in court to present proof and cross examine Kayla's witnesses.   Regardless, he did not file any motions contesting the court's decision to allow the December 8, 2010 hearing to proceed.   Consequently, this issue is not preserved for review.   Dolomite Energy, 269 S.W.3d at 888.

Rather, the issues preserved and orders appealed regard the family court's decision regarding custody and its denial of Daniel's motion for a new trial after the court deviated from its ruling regarding how the custody proceedings would take place in Daniel's absence at the December 8, 2010 hearing.   There is no dispute that the court ruled it would allow Daniel to present proof and to cross- examine Kayla's witnesses.   It is further undisputed that Kayla did not object, by motion or otherwise, to the family court's December 21, 2010 order.   Nevertheless, the family court denied Daniel the opportunity to present his evidence, deviating from its ruling without placing him on notice of such.

Certainly, the family court has broad discretion to manage its docket.   But, here the family court ruled it would allow Daniel to review the December 8, 2010 proceedings and set a second hearing to allow him to present proof and cross- examine Kayla's witnesses.   The court failed to set any deadlines or to set a date of when the second hearing would take place.   When Daniel moved the court to set a hearing to present his proof, the court entered an order on the same day modifying custody without hearing his proof.   We conclude that, under these unique circumstances, the court abused its discretion and clearly erred.

“Due process requires, at the minimum, that each party be given a meaningful opportunity to be heard.”  Lynch v. Lynch, 737 S.W.2d 184, 186 (Ky.App.1987) (citing Utility Regulatory Comm'n. v. Kentucky Water Serv. Co., 642 S.W.2d 591, 593 (Ky.App.1982)).   This right encompasses the opportunity to present evidence to the court prior to the court “ma[king] up its mind.”  Id. When the family court entered its order prior to allowing Daniel to present any evidence, the family court denied Daniel the right to present witnesses on his own behalf, to object to Kayla's witnesses and their respective testimony, and to cross-examine those witnesses.   In the same regard, the family court denied Daniel the opportunity to object to Kayla's witnesses.

We therefore conclude that the family court erred when it entered an order modifying custody without allowing Daniel the opportunity to present proof and in denying Daniel's motion for a new trial.   Given our disposition on this issue, we need not address the remaining issues raised on appeal.   For the aforementioned reasons, we REVERSE, VACATE, and REMAND for proceedings consistent with this opinion and the family court's order of December 21, 2010.