RENDERED: JANUARY 19, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0618-MR
LAWRENCE MILLER, JR. APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
v. HONORABLE JAMES W. CRAFT, II, JUDGE
ACTION NO. 15-CI-00023
BRITTANY BUNCH,
ADMINISTRATRIX OF THE ESTATE
OF AUTUMN RAINE BUNCH AND
BRITTANY BUNCH APPELLEES
OPINION
REVERSING AND
REMANDING
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BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
COMBS, JUDGE: This matter concerns the distribution of settlement proceeds
paid as a result of the parties’ compromise of claims asserted in a wrongful death
action. The action was filed against Appalachian Regional Healthcare, Inc.,
following delivery of the parties’ stillborn child. This case has already had a
journey through our appellate system prior to this appeal. After our review, we
reverse the judgment and remand for entry of a judgment consistent with the
decision of the Supreme Court of Kentucky in Miller v. Bunch, 657 S.W.3d 890
(Ky. 2022).
With certain exceptions, the provisions of KRS1 411.137 and KRS
391.033 (collectively known as Mandy Jo’s Law) preclude a parent from
recovering damages from an action for the wrongful death of his or her child or
from inheriting any part of the child’s estate if that parent has “willfully abandoned
the care and maintenance of his or her child.” As part of proceedings conducted to
determine the proper distribution of the settlement proceeds recovered as a result
of the parties’ wrongful death action, Brittany Bunch, mother of Autumn Raine
Bunch (the stillborn child), argued that Lawrence Miller, Jr., the child’s father, had
willfully abandoned the child. Bunch contended that as a consequence, Miller was
precluded by the provisions of Mandy Jo’s Law from participating in the
settlement proceeds. After an evidentiary hearing, the Letcher Circuit Court found
that Miller had indeed willfully abandoned Autumn Raine Bunch. The court
agreed that Mandy Jo’s Law precluded Miller from participating in the settlement
proceeds and entered a judgment to that effect.
On appeal, a panel of this Court also agreed that the provisions of
Mandy Jo’s Law applied. We concluded that the circuit court’s finding that Miller
1
Kentucky Revised Statutes.
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had willfully abandoned Autumn was supported by substantial evidence and
affirmed the trial court’s judgment. The Supreme Court of Kentucky then granted
discretionary review.
Upon its review, the Supreme Court of Kentucky disagreed. It
reasoned that the General Assembly had passed Mandy Jo’s Law because “[i]t
believed, as a matter of public policy, that parents who forego participation in their
child’s upbringing should be prevented from enriching themselves in the event that
the child predeceases them.” Miller v. Bunch, 657 S.W.3d 890, 895 (Ky. 2022).
With this purpose in mind, the Court considered -- as a matter of first impression --
whether the plain language of Mandy Jo’s Law “evinces Legislative intent to
preclude recovery by an abandoning parent when the child in question is stillborn.”
Id.
After examining the language of the statute, a majority of the Court
concluded that the legislature did not intend that the provision would apply in that
circumstance. It analyzed the facts and the law as follows:
First, neither of the exceptions to Mandy Jo’s Law
could ever apply to a stillborn child. The first exception,
that “[t]he abandoning parent had resumed the care and
maintenance [of the child] at least one (1) year prior to
the death of the child,” to state the obvious, could not
apply to a stillborn child because the child would not yet
be conceived one year prior to its death. The second
exception, that “[t]he parent had been deprived of the
custody of his or her child under an order of a court of
competent jurisdiction” likewise could not apply to a
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stillborn child because our courts do not enter custody
orders for children until they are born.
Furthermore, while our case law regarding Mandy
Jo’s Law is extremely scant, the definition of “willful
abandonment,” is not applicable to a stillborn child.
Moreover, our precedent regarding what constitutes “care
and maintenance” is not applicable to a stillborn child.
Neither “willful abandonment,” nor “care and
maintenance” are [sic] defined by statute. However, in
the twenty-two years since the passage of Mandy Jo’s
Law, our appellate system has developed a definition of
abandonment, as well as a test for determining whether a
parent has abandoned the care and maintenance of his or
her child. “Abandonment” for the purposes of Mandy
Jo’s Law means the neglect and refusal to perform
natural and legal obligations to care and support,
withholding of parental care, presence, opportunity to
display voluntary affection and neglect to lend support
and maintenance . . . It means also the failure to fulfill
responsibility of care, training and guidance during the
child’s formative years.
As previously noted, as the statutes are currently
written, no “legal obligations to care and support,” i.e.,
child support and custody orders can be issued until a
child is born. And how might a parent provide
“presence” and “voluntary affection” to a child still in the
womb? Finally, fulfilling the “responsibility, training
and guidance during the child’s formative years” is by its
very wording only applicable to a child in his or her
formative years. Certainly, one can provide financial and
emotional support to the child’s mother and perhaps
indirectly benefit the child. But, looking at the current
definition of abandonment, that definition can only
apply to a child that has been born and is living
separately from his or her mother.
In that vein, the facts previously considered by our
courts to determine whether there has been willful
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abandonment cannot be applied to a case involving a
stillborn child. Whether a parent has abandoned his or
her child is consistently stated to be a highly fact-specific
inquiry that must be considered on a case-by-case basis.
Though no fact is dispositive, those facts previously
considered by our courts include: payment of child
support; a [sic] involvement in the child’s education;
spending time with the child; knowledge of basic facts
about the child such as favorite foods, names of child
care providers, or diaper size; seeking formal or informal
visitation rights; or providing funds to help provide the
child with food, shelter, clothing, or any other necessities
of life.
From a practical perspective, what factors could a
trial court consider in a case involving a stillborn? By
necessity, just as the circuit court did in this case, a trial
court could only consider what the alleged abandoning
parent did for the child while he or she was still in utero.
This, in turn, requires looking at what the abandoning
parent did for the other parent. Indeed, in its opinion and
order in this case, the circuit court faults Mr. Miller for
“willfully [abandoning] Ms. Bunch” no less than three
times. It further found that he “offered no support,
financial or otherwise, to Ms. Bunch”; that he “neglected
and refused to offer care and support to Ms. Bunch and
Autumn”; that he “did not visit Ms. Bunch to offer her
support”; and that he “contributed nothing to the care and
maintenance of Ms. Bunch and her unborn child.”
Again, we acknowledge that by supporting and
caring for the mother one provides at least some support
and care for the child; to suggest otherwise would be
disingenuous. But the Legislature’s sole purpose in
passing Mandy Jo’s Law was to prevent a parent who has
abandoned his or her child from benefitting financially
from that child’s untimely death. Accordingly, the
dispositive inquiry under Mandy Jo’s Law is whether a
parent abandoned the child, not the mother. This, in
turn, necessitates that the alleged abandoning parent has
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had a meaningful opportunity to be part of a child’s life
once the child is a living being separate from his or her
mother.
Consequently, without clear expression from our
General Assembly, this Court cannot use Mandy Jo’s
Law to find willful abandonment of a child based solely
on the nature of the relationship between the parents
during the mother’s pregnancy. This is particularly so in
a case such as the one at bar wherein even Ms. Bunch
acknowledged that Mr. Miller may not have been
Autumn’s father. It smacks of injustice to require a man
who did not know for certain that the child was his until
well after her death to provide financial and emotional
support to the child’s mother during her pregnancy. It
also unfairly presumes that, had Autumn lived post-birth,
Mr. Miller would not have sought custody rights once his
paternity was confirmed.
Miller v. Bunch, 657 S.W.3d 890, 896-98 (Ky. 2022) (citations omitted) (emphases
added).
The Supreme Court of Kentucky reversed the circuit court’s judgment.
It specifically ordered that the circuit court’s findings of fact and conclusions of
law be vacated and that a judgment be entered consistent with its decision. The
matter was then remanded to the circuit court for entry of that judgment.
Upon remand, the circuit court’s judgment and order were entered on
March 13, 2023. The judgment recited that the matter had been remanded
following the determination of the Supreme Court of Kentucky that “Mandy Jo’s
Law does not pertain in this matter and [Lawrence Miller] did not abandon his
child . . . .” The circuit court acknowledged that its initial findings of fact,
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conclusions of law, and judgment were to be vacated and that a new judgment
consistent with the decision of the Supreme Court of Kentucky was to be entered.
The circuit court’s judgment provided that the settlement proceeds “shall be
divided between [Brittany Bunch, the child’s mother] and [Lawrence Miller].”
However, by its subsequent order entered on May 10, 2023, the circuit
court vacated its own judgment of March 13, 2023. The circuit court granted the
motion of Brittany Bunch to alter, amend, or vacate. It concluded that its finding
that the stillborn child, “would, if born alive, have suffered a disability so profound
as to preclude her from gainful employment was now the “Law of the Case” that
would preclude any wrongful death recovery.” It provided further that its finding
that “the behavior of [Lawrence Miller] from the time he learned that [Brittany
Bunch] was pregnant until the funeral of Autumn Raine Bunch, had destroyed the
value of any consortium claim that [he] might have had. . . .” And it determined
that finding to be the “Law of the Case.” The circuit court then held that, as a
consequence, Lawrence Miller “is entitled to no part of the settlement proceeds
which were previously awarded to [Brittany Bunch] by this Court.” The court
ordered that a judgment in favor of Brittany Bunch be entered and that Lawrence
Miller “take nothing.” This appeal followed.
On appeal, Miller argues that the Supreme Court of Kentucky decided
-- as a matter of law -- that he did not abandon his stillborn child and that he and
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the child’s mother are identically situated with respect to the wrongful death claims
and the resulting settlement proceeds. He contends that the judgment of the
Letcher Circuit Court must be reversed as inconsistent with the decision and orders
of the Supreme Court.
In response, Brittany Bunch argues that the circuit court’s findings of
fact were “affirmed as supported by substantial evidence by both the Court of
Appeals and the Kentucky Supreme Court.” She contends that the circuit court’s
finding that Miller’s “behavior upon learning that Ms. Bunch was pregnant had
destroyed any value which his potential loss of consortium claim might have
otherwise had” governs the distribution of the proceeds and prevents Miller from
participating in the settlement. We disagree.
The Supreme Court of Kentucky recounted the testimony of the
parties and of others concerning Miller’s actions upon his learning that Bunch was
pregnant. It rejected as a matter of law the trial court’s determination that a finding
of abandonment of a child pursuant to the provisions of Mandy Jo’s Law could be
predicated on the nature of the relationship between the parents during the
mother’s pregnancy. Consequently, it specifically rejected the trial court’s finding
that Miller had abandoned his stillborn child, and it ordered that finding vacated.
The circuit court’s judgment (along with the previous opinion of this Court
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affirming) was reversed by the Kentucky Supreme Court, and the matter was
remanded for entry of a judgment consistent with its decision.
The judgment of the circuit court entered on May 10, 2023, directly
contradicts the decision of the Kentucky Supreme Court. Its original ruling was
reversed by the Supreme Court, and despite its most current ruling in the appeal
now before us, it is not the law of the case. It is a nullity having no force or
precedential value. The judgment of the Letcher Circuit Court was not affirmed
upon any basis; its findings of fact and conclusions of law were categorically
vacated. The language of the Kentucky Supreme Court’s decision unequivocally
indicates that the Court determined that the matter had been absolutely wrongly
decided by the circuit court and that judgment must be entered in favor of Miller.
Consequently, the matter is again remanded for entry of a judgment
consistent with the decision of the Kentucky Supreme Court in Miller v. Bunch,
657 S.W.3d 890 (Ky. 2022).
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Kevin W. Johnson Steven M. O’Brien III
Hazard, Kentucky Lexington, Kentucky
Daniel F. Dotson
Whitesburg, Kentucky
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Lawrence Miller, Jr. v. Brittany Bunch, Administratrix of the Estate of Autumn Raine Bunch
Combined Opinion