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Date: 10-18-2024
Case Style:
Lisa Bentley and Gerald Bently v. Scarlett Etherton and Tasha Bentley
Case Number: 18-CI-00296
Judge: Elise Givhan
Court: Circuit Court, Bullitt County, Kentucky
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Shepherdsville, Kentucky family law lawyers husband and wife in a divorce case involving child custody.
On December 10, 2017, Tasha Bentley (Mother) shot and killed Gary Wayne Bentley (Father), and eventually pleaded guilty to murder. At the core of this case is their sole minor child (Child). Before Mother was taken into custody, she executed a medical power of attorney authorizing medical decisions for Child to be made by Scarlett Etherton, Child's maternal great-aunt (Great-Aunt).[1]Mother then relinquished Child's physical custody to Great-Aunt.
Great-Aunt took Child from his home county, Henry County, to Bullitt County where she was employed as a clerk in the Bullitt County courthouse. On December 12, 2017, two days after the murder, Great-Aunt filed a dependency, neglect, or abuse (DNA) petition in Bullitt County (No. 17-J-00586-001). The case proceeded in accordance with KRS[2] 620.070. The Bullitt Family Court awarded temporary custody of Child to Great-Aunt on December 13, 2017.
On December 18, 2017, Grandparents initiated a grandparents' visitation action in Henry County (No. 17-CI-00249), unaware of the Bullitt County DNA action, naming both Mother and Great-Aunt as respondents. Great-
Aunt responded by seeking dismissal based on the DNA action. Grandparents then attempted to intervene in the Bullitt County action.
On January 17, 2018, the Bullitt Family Court began an adjudication hearing on Great-Aunt's DNA petition. By counsel, Mother stipulated dependency and waived the requirement of a separate disposition hearing.
Before the family court ruled, Grandparents' counsel made known to the court that her clients were present in the courtroom and, during the hearing itself, sought to intervene and, without formal motion, expressed a desire for custody of Child. They also served Great-Aunt with summons and the complaint in their Henry County visitation action.
Without ruling on Grandparents' intervention motion, the family court sua sponte ordered a specific visitation schedule[3] for Grandparents that was already in place by the parties' agreement. The order was entered the day of the hearing, January 17, 2018. There was no appeal from this order.
On March 14, 2018, the Henry Family Court transferred Grandparents' action seeking visitation from Henry County to Bullitt County; the case was renumbered in the latter circuit court as No. 18-CI-00296. Ultimately, this appeal is from an order regarding visitation entered in that case.
However, progress on the transferred visitation case stalled while Grandparents again sought to intervene in the DNA case by filing such a motion, along with several others as discussed below. The Cabinet expressed doubt that Grandparents had standing to intervene, but the family court never expressly denied Grandparents' motion. Instead, the court entertained their other motions and entered orders affecting their rights.
In addition to their motion to intervene, Grandparents challenged the family court's grant of temporary custody to Great-Aunt and sought an order of joint custody. They also sought Judge Spainhour's recusal or to transfer the DNA action to Henry County. The court addressed each of Grandparents' motions in several orders of the same date.
In a lengthy April 23, 2018 order stating the events of the DNA action, Judge Spainhour denied the motion to recuse. She entered a separate order denying Grandparents' motion for joint custody. In another order, she granted grandparent visitation with similar visitation times as that entered in the January order, but additionally limiting all parties' discussion with Child regarding Mother's criminal prosecution and granting Grandparents access to Child's medical and psychological records. Finally, it ordered "further matters concerning visitation . . . be addressed in the CI action" (No. 18-CI-00296) previously transferred from Henry County. Grandparents appealed none of these orders.
On July 19, 2018, Great-Aunt moved for permanent custody in the DNA action. The motion was served on all parties of record. The record specifically shows Great-Aunt's counsel notified Grandparents' counsel of the motion by U.S. mail. The family court conducted a hearing and entered an order on July 30, 2018, noting neither Mother nor the guardian ad litem objected and, furthermore, although "[t]he paternal grandparents were notified . . . [they] did not appear to object." The family court granted Great-Aunt permanent custody. Again, Grandparents did not appeal this order.
At this point, the parties operated under two orders of the family court in the DNA action - the July 30, 2018 order that Great-Aunt have permanent custody and the April 23, 2018 visitation order.
In August 2018, apparently forgetting the order that further visitation matters be taken up in the Grandparents' visitation case transferred from Henry Family Court, Great-Aunt filed a motion in the DNA action to modify visitation. Grandparents found new counsel and responded. Thus prompted, the family court, on August 17, 2018, entered an order setting a hearing for September 28, 2018, to take up the issue of Grandparent visitation. (Record (R.) 32.) However, the hearing was set in the Grandparents' visitation action, not the DNA proceeding.
By the time the hearing date arrived, the parties had prepared an agreed order which the family court entered in the instant action on the date of the hearing. Notwithstanding the nature of the order as having been agreed upon by the parties, the family court added finality language from CR[4] 54.02.
In July 2019, Grandparents moved the family court in the instant action to increase visitation. The court scheduled a hearing for October 2019. Before that date, Great-Aunt filed a motion "to modify the previous visitation order to allow visitation with the Bentleys [Grandparents] in her discretion and to order Gerald Bentley to submit to a drug screen."
For reasons not fully discernible from the record but perhaps relating to the pending criminal case against Mother, the hearing was rescheduled twice before a case management conference was scheduled for July 2021. By the parties' agreement, "the case was remanded."
In September 2021, Grandparents filed a motion "asking the Court to schedule a hearing for [Child] to permanently reside in their care." (R. 162.) Grandparents later supplemented their motion, which the family court deemed to be one for a change in custody, by filing their separate affidavits. (R. 194-210.) In response, Great-Aunt renewed her motion for an order that Grandparents' visitation shall be at Great-Aunt's discretion. (R. 169.) Partly owing to the imposition of the court's COVID-19 protocols and the desire for Mother's attendance, the hearing did not occur until December 29, 2022.
After the hearing at which the parties fully presented their evidence, the family court entered an order on January 20, 2023. The family court's thoughtful and comprehensive order maintained the status quo, stating: "The Court finds that it is in the best interest of the child to leave the custody and visitation schedule as it currently exists in place." (R. 276.)
Grandparents filed a motion to alter, amend, or vacate that order, and the family court denied the motion by order entered April 10, 2023. That order provided that the record be supplemented with the sealed record of the DNA action "in the event any appellate court is asked to review this record." (R. 302.)
Although the April 10, 2023 order addresses arguments Grandparents raised in the motion to modify, the court expressly ruled that the motion failed to present "a sufficient basis under CR 59.05 . . . to merit modification of the Court's rulings found in the January 20, 2023 Order." (R. 290.) Consequently, this Court's review is of the original January 20, 2023 order. Cabinet for Health and Fam. Servs. v. Marshall, 606 S.W.3d 99, 103 (Ky. App. 2020) (internal quotation marks and citation omitted) ("[O]rders denying CR 59.05 motions are inherently interlocutory and, thus, there is no appeal from the denial of a CR 59.05 motion."). However, where necessary to respond to issues Grandparents presented only in the CR 59.05 motion and which they repeat on appeal, we will look to the family court's order denying modification as illuminating.
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Bentley v. Etherton, 2023-CA-0560-MR (Ky. Ct. App. Oct 18, 2024)
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: