author: JEFFREY V. BROWN, Justice.

text:
    Darrell Dean VALENZUELA, Appellant, v. STATE & COUNTY MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 14-09-00191-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 22, 2010.

      William E. Ryan, Houston, for Appellant.
    Kimberley M. Spurlock, Humble, James S. Walker, Kathryn Marie Pfeiffer Anderson, Houston, for Appellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and BROWN.
   OPINION

JEFFREY V. BROWN, Justice.

Appellant Darrell Dean Valenzuela appeals the trial court’s grant of summary judgment in favor of appellee State & County Mutual Fire Insurance Company (“State & Countjr”). Valenzuela challenges the trial court’s ruling on the grounds: (1) State & County’s summary-judgment evidence is not competent; and (2) State & County has failed to prove as a matter of fact that it was prejudiced by Torres’s lack of notice and lack of cooperation. We reverse and remand the case for further proceedings in accordance with this opinion.

I

Darrell Dean Valenzuela and Armando Rodriguez Torres were in a motor-vehicle accident in 2002, and Valenzuela claimed he sustained injuries from the accident. Valenzuela sued Torres in August 2007. At the time of the accident, Torres was covered by a standard-form personal auto policy from State & County. The policy insured the automobile Torres drove the day of the accident. The case went to trial, and Valenzuela obtained a judgment for $12,100.00, prejudgment interest in the amount of $4,502.11, and court costs in the sum of $1,941.67. State & County did not receive notice of the suit until Valenzuela delivered a copy of the final judgment on September 10, 2007. State & County claimed its policy provisions required Torres to provide proper and timely notice regarding any pending lawsuits so State & County could participate in Torres’s defense.

State & County filed a declaratory-judgment action seeking a judgment stating that it has no duty to (1) indemnify its insured Torres, and (2) pay policy benefits to Valenzuela. The parties filed cross motions for summary judgment. State & County’s issues in its summary-judgment motion mirrored the relief sought in its declaratory-judgment action, but also included the argument that Torres’s lack of cooperation prejudiced State & County as a matter of law. Valenzuela objected to State & County’s summary-judgment evidence, which consisted of an affidavit from claims manager Kathy Devaney. But the trial court overruled Valenzuela’s objections and granted summary judgment. This appeal followed.

II

In his first issue, Valenzuela contends Devaney’s affidavit is insufficient evidence to support State & County’s summary judgment. Valenzuela specifically complains the affidavit: (1) is not based on personal knowledge; (2) does not demonstrate how the affiant became familiar with the information; (3) is based on subjective beliefs; and (4) is conclusory. Without Devaney’s affidavit, Valenzuela asserts State & County is unable to show any evidence that its insured did not cooperate or that it was prejudiced; hence, State & County’s lack of cooperation defense would fail, and the trial court erroneously granted State & County’s summary judgment. State & County claims Valenzuela waived his complaint about the affidavit’s competency because he failed to raise the issue in the court below. Additionally, State & County argues Devaney’s affidavit demonstrates she had personal knowledge due to her position as the claims manager for State & County, Devaney’s affidavit is based on fact and not on her beliefs or opinions, and Devaney’s affidavit is not conclusory because it is strictly fact based.

We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). The party moving for a traditional summary judgment has the burden to show that no material fact exists and that it is entitled to summary judgment as a matter of law. Tex.R. Civ. P. 166a(e); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). In determining whether a disputed material fact precludes summary judgment, we take as true evidence favorable to the non-movant, and we must resolve any doubt in the non-movant’s favor as well as make reasonable inferences in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In a summary-judgment motion, supporting and opposing affidavits must “be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Tex.R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (per curiam); CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). Hence, for a summary-judgment affidavit to have probative value, the affi-ant must swear the facts in the affidavit reflect his personal knowledge. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex.2008) (per curiam). But the mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge. Estate of Gajewsky v. John Hancock Life Ins. Co., No. 14-04-00748-CV, 2005 WL 1017628, at *3 (Tex.App.-Houston [14th Dist.] May 3, 2005, no pet.) (mem.op.). The affidavit must explain how the affiant has personal knowledge. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 762 (Tex.1988) (per curiam); SouthTex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Statements represented in the affidavit need factual specificity such as place, time, and exact nature of the alleged facts. SouthTex 66 Pipeline Co., 238 S.W.3d at 543 (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984)). “The key is whether the affidavit clearly shows the affiant is testifying from personal knowledge.” David Hittner & Lynne Liberato, Summary Judgments in Texas State and Federal Practice, 46 Hous. L. Rev. 1379,1438 (2010).

The affidavit must “itself’ state the facts and demonstrate the affiant’s competency. Keenan v. Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394 (Tex.App.-Houston [14th Dist.] 1988, no writ). An affiant’s position or job responsibilities can qualify him to have personal knowledge of facts and establish how he learned of the facts. SouthTex 66 Pipeline Co., 238 S.W.3d at 543 (citing First Nat’l Bank in Munday v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex.App.-Eastland 2006, pet. denied)). Affidavits demonstrating personal knowledge often state the affiant’s knowledge is acquired through not only the person’s position, but also through his specifically described job duties. See, e.g., 1001 McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (stating the affiant’s personal knowledge “resulted from his employment as director of the Controller’s Division of CSFB, which keeps records of all licenses and government approvals”); Lubbock Feeders, L.P., 183 S.W.3d at 881 (explaining the affidavit stated the affiant was not only the yard manager for Lubbock Feeders, but that he was familiar with the customer accounts because “the performance of his job required him to be familiar with the accounts”); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 176 (Tex.App.-Dallas 2000, pet. denied) (discussing although the affiant was not employed at the club when plaintiffs joined, his affidavit makes it clear that as a general manager, he had knowledge of the club’s policies and bylaws because one of his duties was to make recommendations to the board of directors concerning changes in the bylaws); Sturm v. Phil Arms Ministries, Inc., No. 14-99-01086-CV, 2001 WL 333228, at ⅜4 (TexApp.-Houston [14th Dist.] Apr. 5, 2001, no pet.) (not designated for publication) (stating in an affidavit “as Operations Manager for the Church, I would be notified of any accidents occurring on the Church premises, as well as dangerous conditions on the premises of the Church”).

In addition to a person’s job title or position, affiants should also explain how they became familiar with the facts in the affidavit. See, e.g., Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 698 (Tex.App.-Dallas 2008, no pet.) (discussing the phrase “ ‘knowledge concerning its operations and organization’ ” was sufficient to demonstrate how the affi-ant became familiar with the facts in the case); Sparks v. Cameron Employees Credit Union, 678 S.W.2d 600, 603 (Tex.App.-Houston [14th Dist.] 1984), disapproved of on other grounds, McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex.1993) (stating in affidavit that affiant is the collections manager and is familiar with the plaintiffs books, files, and records). Furthermore, courts sometimes review whether the affiant is able to obtain personal knowledge because he was employed during a particular time period. See, e.g., Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 205-06 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (explaining the affiant stated he was employed with American Express for twenty-six years in the legal and collections units); Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 365 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (describing affiant’s employment status in affidavit as, “I am currently the Vice President and Controller for Raytheon Aircraft Parts & Inventory Distribution. From April 1997 through August 2002, I served as the Vice President, Finance of Raytheon Travel Air Company.”). In Lawrence Marshall Dealerships v. Meltzer, we recently reviewed an affidavit supporting the appellant’s summary judgment. No. 14-07-00920-CV, 2009 WL 136908, at *4 (Tex.App.Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem.op.). In Meltzer, we concluded the affidavit was not based on personal knowledge because “[although [the affiant] stated his job title, he did not identify his responsibilities or other basis for personal knowledge of the facts he asserts.” Id.

In this case, Valenzuela contends Devaney lacked personal knowledge to make the affidavit. State & County’s sole piece of summary-judgment evidence supporting its claims is Devaney’s affidavit, which provides:

My name is Kathy Devaney. I am over 18 years of age, of sound mind, and fully competent to make this affidavit. I am currently the Claims Manager for Plaintiff State and County Mutual Fire Insurance Company, I have personal knowledge of the facts stated herein and they are all true and correct to the best of my knowledge.

Devaney’s affidavit then proceeds to discuss the facts set out in State & County’s motion for summary judgment. Although the affidavit states Devaney is the current claims manager for State & County, it does not state whether she was the claims manager during the relevant time period, how her job duties as the claims manager afforded her the knowledge about Valenzuela’s claim, or how she was familiar with this particular claim. The affidavit is, therefore, incompetent to prove the facts about which Devaney testifies. See Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 537 (TexApp.-Houston [14th Dist.] 1997, no pet.).

An affidavit not based on personal knowledge is legally insufficient. Kerlin, 274 S.W.3d at 668; Radio Station KSCS, 750 S.W.2d at 762. Without Devaneas affidavit, State & County failed to establish its entitlement to summary judgment as a matter of law; therefore, the trial court erred in granting State & County’s summary judgment. See Kerlin, 274 S.W.3d at 668. Thus, we sustain Valenzuela’s first issue on appeal. We need not discuss the second issue.

For the foregoing reasons, we reverse and remand the case for further proceedings consistent with this opinion.

      . In his reply brief, Valenzuela concedes he never objected to the affiant’s competency nor is competency an issue on appeal.

        . Although Valenzuela also filed a motion for summary judgment, in his brief, he specifically states his "motion is not an issue in this appeal.”

      . We have previously held an affidavit simply stating the affiant's job title is sufficient to show personal knowledge. See Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299, 300 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). In the affidavit at issue in Requipco, Robert Marrón stated: ‘T ... am President of Am-Tex Tank & Equipment, Inc .... and have full authority to make this Affidavit. I have personal knowledge of all the facts stated herein concerning the Defendant, Requipco, Inc., as set forth and contained in Plaintiff’s Original Petition.” Id. Although the appellant complained Marrón did not show how he gained his personal knowledge, we decided Marrón did have personal knowledge. Id. But Requipco deals with a suit on a sworn account in which the affiant was a company officer. A company's president or other officer logically would have knowledge of current debts owed to the company. Here, Devaney is not a company officer, but a claims manager. Devaney only says in her affidavit that she is the current claims manager without stating how she became familiar with the specific claim at issue or how her job duties would enable her to know about this particular claim.


source: Caselaw Access Project

author: PER CURIAM. KEM THOMPSON FROST, Justice, WILLIAM J. BOYCE, Justice,

license: Public Domain

text:
    WESTERNGECO RESOURCES, INC., Appellant, v. Darold BURCH, Appellee.
    No. 14-08-00489-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 5, 2010.
    Charles T. Miers, Michael B. Kivort, Richard M. Simses, Houston, for appellant.
    Jeffrey L. Raizner, Alan B. Daughtry, Michael P. Doyle, Houston, for appellee.
   OPINION

PER CURIAM.

On April 1, 2010, a panel of this court issued its opinion and judgment in this appeal. Appellees then filed a motion for rehearing and motion for en banc reconsideration. While those motions were pending, appellee filed an unopposed motion to withdraw the opinion pursuant to settlement. The motion also seeks to withdraw appellee’s motions for rehearing and for en banc reconsideration.

The motion is granted. This court’s opinion filed April 1, 2010, is WITHDRAWN, and our judgment of that date is VACATED. See Tex.R.App. P. 42.1. The appeal is ordered DISMISSED. Appel-lee’s motion for rehearing and motion for en banc reconsideration are DENIED AS MOOT.

En Banc Majority and Dissenting and Concurring Opinions filed.

En Banc Court consists of Chief Justice HEDGES and Justices YATES, ANDERSON, FROST, SEYMORE, BROWN, BOYCE, SULLIVAN, and CHRISTOPHER.

FROST, J. concurring and dissenting. BOYCE, J. joins.

BOYCE, J., concurring and dissenting. HEDGES, C.J., ANDERSON, J., and FROST, J. join.

KEM THOMPSON FROST, Justice,

concurring and dissenting.

I concur in the en banc court’s decision to vacate this court’s judgment and to dismiss the appeal as moot in light of the parties’ settlement agreement, but I disagree with both the decision to grant en banc review and the decision to withdraw the panel opinion.

En banc review is not favored and should not be ordered unless necessary to secure or maintain uniformity of this court’s decisions or unless extraordinary circumstances require en banc consideration. Tex.R.App. P. 41.2(c). The panel opinion does not conflict with any opinion from this court; thus, en banc consideration of the motion to withdraw is not necessary to secure or maintain uniformity of this court’s decisions. Nor do extraordinary circumstances require en banc consideration of the motion to withdraw. Therefore, this court should not grant en banc review.

More importantly, for the reasons stated in Justice Boyce’s concurring and dissenting opinion, the en banc court should not order the panel opinion withdrawn.

Because the en banc court makes the wrong choice at both junctures — first by granting en banc consideration of the motion to withdraw and then by ordering withdrawal of the panel opinion — I join neither decision and respectfully dissent from both.

En Banc Court consists of Chief Justice HEDGES and Justices YATES, ANDERSON, FROST, SEYMORE, BROWN, BOYCE, SULLIVAN, and CHRISTOPHER. BOYCE, J., joins this concurring and dissenting opinion.

BOYCE, J., concurring and dissenting. HEDGES, C.J., ANDERSON, J., and FROST, J. join.

WILLIAM J. BOYCE, Justice,

concurring and dissenting.

I concur in the en banc court’s decision to vacate the appellate court judgment and dismiss this appeal. I respectfully dissent from the en banc court’s decision to withdraw the panel opinion filed on April 1, 2010.

The April 1, 2010 panel opinion applied the holdings in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387-90 (Tex.2000), and Harris County v. Smith, 96 S.W.3d 230, 234-36 (Tex.2002), to a properly preserved and properly briefed complaint in this personal injury action that the trial court erred by refusing a request to break out certain damage elements separately in the jury charge.

The elements at issue here involved future medical damages related to (1) a neck injury attributed to the occurrence, and (2) a shoulder injury also attributed to the occurrence. There was no contention that the state of the evidence precluded differentiation of future medical expenses related to the neck from future medical expenses related to the shoulder. See generally Texarkana Mem’l. Hosp. v. Murdock, 946 S.W.2d 836, 840 (Tex.1997) (plaintiff must link specific medical expenses to the liability-causing conduct when there is evidence of multiple medical problems, some of which may be attributable to the liability-causing conduct and some of which may not be attributable to it; “[a] plaintiff should recover only for medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible.”). Over objection, these elements were combined in the charge so that the jury was asked to find a single dollar amount in a single answer blank for “[mjedieal care that, in reasonable probability, Darold Burch will sustain in the future.”

The opinion concluded there was no evidence to support a damage award for future medical care relating to Burch’s shoulder because there was no evidence to establish (1) that Burch will require future medical care for his shoulder problem in reasonable probability, and (2) the estimated cost of such care. Because there was no evidence to support a damage award for future medical care relating to Burch’s shoulder, the panel concluded that the trial court erred under Harris County by refusing a request to break out the challenged damage element separately in the jury charge. See Harris County, 96 S.W.3d at 234-36. The unanimous decision was designated as a full “Opinion” under Texas Rule of Appellate Procedure 47.2(a).

Burch timely filed a motion for panel rehearing and for rehearing en banc. See Tex.R.App. P. 49.1, 49.7. Before the court issued rulings on the motions for rehearing, Burch filed an unopposed “Motion to Withdraw Opinion Pursuant to Settlement” under Texas Rule of Appellate Procedure 42.1(c) in which he (1) announced that the parties have settled; (2) stated his desire to withdraw his motions for rehearing and rehearing en banc; and (3) asked the court to exercise its discretion to withdraw the April 1, 2010 panel opinion.

The circumstances described in the motion do not warrant withdrawal of the April 1, 2010 panel opinion. “A settlement does not automatically require the vacating of a court of appeals’ opinion — either by this court or by the intermediate appellate court.” Houston Cable TV, Inc. v. Inwood W. Civic Ass’n, 860 S.W.2d 72, 73 (Tex.1993) (per curiam). “Our courts are endowed with a public purpose — they do not sit merely as private tribunals to resolve private disputes.” Id. “While settlement is to be encouraged, a private agreement between litigants should not operate to vacate a court’s writing on matters of public importance.” Id.

Other courts have followed the supreme court’s teaching on this point. See, e.g., Polley v. Odom, 963 S.W.2d 917, 918 (Tex.App.-Waco 1998, order, no pet.) (per cu-riam) (“Because our opinion in this case addresses matters of public importance, our duty as a public tribunal constrains us to publish our decision.”); Vida v. El Paso Employees’ Fed. Credit Union, 885 S.W.2d 177, 182 (Tex.App.-El Paso 1994, no writ) (“Although this Court certainly encourages the settlement of controversies ... we do not sit as a purely private tribunal to settle private disputes. We believe that our opinion in this case involves matters of public importance, and our duty as an appellate court requires that we publish our decision.”). This court should follow the supreme court’s teaching, too.

Apart from questions of appellate duty to decide matters of public importance, legitimate concerns also can be raised about whether the court creates unhealthy incentives for future litigants when it withdraws an already-issued opinion pursuant to the parties’ settlement. See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 28, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (“Some litigants, at least, may think it worthwhile to roll the dice rather than settle in the district court, or in the court of appeals, if, but only if, an unfavorable outcome can be washed away by a settlement-related vacatur.”) (original emphasis).

By withdrawing the April 1, 2010 panel opinion pursuant to the parties’ settlement, the court does more than Rule 42.1(c) requires and less than Rule 47.1 demands. Accordingly, I respectfully dissent.

En Banc Court consists of Chief Justice HEDGES and Justices YATES, ANDERSON, FROST, SEYMORE, BROWN, BOYCE, SULLIVAN, and CHRISTOPHER. HEDGES, C.J., ANDERSON, J., and FROST, J., join this concurring and dissenting opinion.

FROST, J. concurring and dissenting. BOYCE, J. joins.

      . Following the issuance of a unanimous panel opinion on April 1, 2010, the party that did not prevail filed an unopposed motion to withdraw the panel opinion. After the panel voted unanimously to deny this motion, a justice of this court requested an en banc vote, and a majority of this court’s members voted to consider the motion en banc. See TexR.App. P. 41.2(c). A majority of the en banc court then voted to grant the motion and to order the panel opinion withdrawn.


author: ELANA CUNNINGHAM WILLS, Justice. JIM HANNAH, Chief Justice, ROBERT L. BROWN, Justice,

text:
    2009 Ark. 302
    Jean HETMAN, Appellant, v. Annamarie SCHWADE, Appellee.
    No. 08-1273.
    Supreme Court of Arkansas.
    May 21, 2009.

      Parker Law Firm, LTD, by: Tim S. Parker, Eureka Springs, for appellant.
    William A. Hill, Jr., Beaver, for appellee.
   ELANA CUNNINGHAM WILLS, Justice.

| iThis appeal arises from an order of the Carroll County Circuit Court entering an order directing appellant Jean Hetman to provide an accounting of the years for which she served as guardian for her mother, Alexandra Vicari. The guardianship in this case was originally created in Pennsylvania. On May 15, 2000, Hetman filed a petition for appointment of an emergency guardian of the person and estate of Vicari in the Court of Common Pleas of Lehigh County, Pennsylvania, Orphans’ Court Division. The Pennsylvania court entered an order on May 17, 2000, appointing Hetman and her sister, appel-lee Annamarie Schwade, as emergency co-guardians of Vicari’s person and estate.

On May 26, 2000, Hetman sought appointment as permanent guardian for Vi-cari. Schwade responded to Hetman’s petition on June 29, 2000, requesting that both sisters be appointed co-guardians. The Pennsylvania court entered an order on July 12, 2000, | ¡.declaring Vicari to be incapacitated and appointing Schwade and Hetman as plenary co-guardians of Vicari’s estate and person. However, the court’s order provided that only Hetman had authority to sign checks on Vicari’s behalf.

From 2000 to 2006, Hetman placed Vi-cari in various residential care facilities in Pennsylvania and New Jersey. However, in June of 2006, Schwade removed her mother from an assisted living facility in New Jersey and brought her to Eureka Springs, where Schwade lives. Schwade filed a petition for appointment as guardian in the Carroll County Circuit Court on July 3, 2006. On September 1, 2006, Het-man filed a petition for review of the guardianship in the Pennsylvania court, seeking to be appointed sole guardian for her mother. Schwade then filed an answer and counterpetition in January of 2007 in which she asked the Pennsylvania court to appoint her sole guardian and transfer jurisdiction of the guardianship case to the Circuit Court of Carroll County-

On April 27, 2007, the Pennsylvania court entered an order terminating Het-man’s guardianship, noting that Schwade would continue as sole guardian, and transferring [¡¿jurisdiction of Vicari’s guardianship to the Carroll County Circuit Court. The Carroll County court then entered an order on May 1, 2007, accepting “transfer of the jurisdiction of the Guardianship of the Estate and Person of Alexandra Vicari.”

Hetman filed an objection to Schwade’s Arkansas petition for guardianship on July 9, 2007, in the Carroll County Circuit Court. In addition, she filed a petition for appointment of a guardian ad litem on November 30, 2007. The court granted Hetman’s request for a guardian ad litem on December 6, 2007.

Shortly thereafter, Schwade filed a petition for accounting in Carroll County on December 14, 2007, arguing that Hetman had depleted Vicari’s estate during her time as guardian in Pennsylvania. Schwade alleged that Hetman, who had the sole authority to sign checks under the terms of the Pennsylvania court’s order appointing the sisters as co-guardians, had made expenditures in excess of $30,000 that did not appear to have been for the benefit of the ward. Hetman responded in February of 2008, arguing that the Arkansas court lacked subject-matter jurisdiction over matters that took place in the Pennsylvania probate proceeding and that the Arkansas court had no authority to order a person who is not an Arkansas guardian to file an accounting. Asserting that Schwade never brought the [4alleged misfeasance to the attention of the Pennsylvania court, but could have, Hetman also contended that principles of res judicata barred Schwade’s action.

Schwade replied that she did not learn of Hetman’s alleged wrongdoing until after she was granted the guardianship in Arkansas and obtained access to her mother’s financial records. Therefore, she argued, she could not have raised the matter in the Pennsylvania court. Moreover, because Pennsylvania had not had an opportunity to examine the issue, and Arkansas was now the only court that could exercise authority over the guardianship of Vicari’s estate and person, Schwade urged that the Arkansas court had both the personal and subject-matter jurisdiction necessary to order an accounting.

The circuit court held a hearing on February 11, 2008. Although the court initially expressed some skepticism about whether it possessed jurisdiction, it subsequently issued a letter opinion on March 13, 2008, in which it found that Hetman had personally appeared before the court by filing pleadings and seeking affirmative relief. The court further stated that, as it had personal jurisdiction over Hetman for one purpose, it likewise had “jurisdiction over her person for all purposes.” Accordingly, the court granted the petition for accounting and required the production of all previous accountings, as well as the creation of new initial inventories and annual ac-countings for Vicari’s estate for the years 2000 through 2005 and a final accounting for 2006. The court then entered a formal order for accounting on April 2, 2008, ordering Hetman to “furnish full copies of all books and | r,records, checks, receipts and disbursements, invoices or vouchers available.” Hetman filed her notice of appeal on April 24, 2008.

Our standard of review in probate cases is well settled. This court reviews probate proceedings de novo on the record, but it will not reverse the decision of the circuit court unless it is clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007); Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006). In conducting our review, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Seymour, supra. Furthermore, while we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); Conner v. Donahoo, 85 Ark.App. 43, 145 S.W.3d 395 (2004).

Hetman raises three points on appeal. Her first argument challenges the circuit court’s subject-matter jurisdiction, and her second challenges the authority of the Arkansas court to order an accounting by an out-of-state guardian; we address these issues together. Hetman’s third argument on appeal contends that the Pennsylvania proceedings were res judicata and should have precluded the circuit court from considering Schwade’s request for an accounting.

In her first point on appeal, Hetman argues that the circuit court erred in granting the petition for accounting because the court lacked subject-matter jurisdiction to order a | ^non-guardian in the Arkansas case to account for the time period and events covered by the Pennsylvania guardianship. She asserts that, although a court may require a guardian to file an accounting pursuant to Ark.Code Ann. § 28-65-320 (Repl.2004), this statute only applies to Arkansas guardianship cases or those who are serving as guardian in such cases. She further maintains that this statute does not authorize an Arkansas court “to order accountings from guardians who have previously served in out-of-state guardianship proceedings, particularly where they have never served as a guardian in an Arkansas proceeding.”

In support of her argument, Hetman cites Merchants Bonding Co. v. Starkey, 337 Ark. 229, 987 S.W.2d 717 (1999). In that case, Barbara Kennedy was appointed guardian in Texas and posted a $50,000 bond in the County Court of El Paso County; Merchants Bonding Co. was the surety on the bond. Kennedy later transferred the guardianship and its assets to Miller County, Arkansas. Several years later, the Miller County Probate Court determined that Kennedy had mismanaged the guardianship estate and rendered a judgment against the bonding company. On appeal, this court reversed, holding that the plain language of the Texas bond stated that Kennedy and Merchants Bonding were “held and firmly bound unto the county Judge of El Paso County, and his successors in office.” Because the parties contemplated only that the bond would be payable in Texas, this court held that proper jurisdiction for any suit instituted on the bond given in Texas could only be in a 17Texas court. Merchants Bonding Co., 337 Ark. at 233, 987 S.W.2d at 719 (citing 12 Am.Jur.2d Bonds § 34 (1997)).

Hetman argues that this case is “instructive” because it shows that, while an Arkansas court might have had subject-matter jurisdiction over the guardianship, it did not have subject-matter jurisdiction over the Texas guardianship-related bond. However, Merchants Bonding Co. appears to have turned solely on a question of the plain language of the bond, and not on any analysis of the jurisdiction of the probate court in general. Thus, it does not lend the support to Hetman’s argument that she claims it does.

Schwade, in turn, argues that Hetman has confused subject-matter jurisdiction with personal jurisdiction. Citing Ark. Code Ann. § 28-65-107(a) (Repl.2004), she notes that the probate court clearly has subject-matter over guardianship proceedings. That statute provides that the “jurisdiction of the circuit court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal.” Schwade further contends that the Carroll County Circuit Court has personal jurisdiction over Hetman because Hetman sought affirmative relief from the court by filing a petition for appointment of a guardian ad litem for Vicari. See Ark. Dep’t of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992) (once defendant filed pleadings with the court seeking affirmative relief on the merits of the case, he could not complain that the court did not have personal jurisdiction over him).

|RSchwade further relies on A & P’s Hole-in-One, Inc. v. Moskop, 38 Ark.App. 234, 832 S.W.2d 860 (1992), for its discussion of an accounting as an equitable remedy that is “designed to provide a means for compelling one, who because of confidential or trust relationship has been entrusted with property of another, to render an account of his actions and for the recovery of any balance found to be due.” A & P’s Hole-in-One, 38 Ark.App. at 239, 832 S.W.2d at 863. Schwade contends that Hetman’s status as a fiduciary, even a former one, gave the circuit court the authority to require an accounting from her.

We agree that the Carroll County court had both subject-matter jurisdiction over the matter of the guardianship and personal jurisdiction over Hetman. Section 28-65-107(a) gives the circuit court jurisdiction over guardianship matters, and the subject of the guardianship, Vicari, now resides in Arkansas. Personal jurisdiction arose from Hetman’s seeking of affirmative relief in the circuit court. However, we must still consider whether the court had the authority to order an accounting from one who was never appointed a guardian in Arkansas. Hetman questions this authority in her second point on appeal, arguing that Arkansas Code Annotated section 28-65-320 (Repl. 2004), which requires guardians to make certain accountings, only applies to guardians appointed by Arkansas courts.

IsArkansas courts have long referred to guardianship cases as special proceedings. See, e.g., Nelson v. Cowling, 89 Ark. 334, 116 S.W. 890 (1909). Further, special proceedings are governed by statute. First Security Bank v. Estate of Leonard, 369 Ark. 213, 253 S.W.3d 434 (2007); In re Adoption of Baby Boy Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997). The Arkansas statute governing a guardian’s duty to provide an accounting is Arkansas Code Annotated section 28-65-320, which provides in pertinent part as follows:

(a) Unless otherwise directed by the court, a guardian of the estate shall file with the court a written verified account of his or her administration:
(1) Annually within sixty (60) days after the anniversary date of his or her appointment; and
(2) Within sixty (60) days after termination of his or her guardianship.

(Emphasis added.)

Hetman urges that she was never appointed as a guardian in Arkansas, and thus she cannot be required to file an accounting under this statute as could be required of an Arkansas guardian. We first note the general rule that statutes have no effect except within the state’s own territorial limits. See Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996); Widmer v. Wood, 243 Ark. 457, 420 S.W.2d 828 (1967). Although there is no case law interpreting the phrase “a guardian of the estate” in section | tn28 — 65—320, we conclude in this case that the statute does not apply to a former guardian who was appointed, served, and removed as guardian solely under the laws of another state.

This conclusion is also supported by common law principles. Traditionally, a foreign representative or guardian could only be held to account in the state in which he or she was appointed. For example, in Vaughan v. Northup, 40 U.S. 1, 15 Pet. 1, 10 L.Ed. 639 (1841), the United States Supreme Court considered whether an administrator of an estate could be sued for an accounting in the District of Columbia when the letters of appointment were obtained in Kentucky. There, following his appointment in Kentucky, the administrator, Northup, received funds from the United States government on behalf of the decedent’s estate. The decedent’s next of kin filed suit against Northup in the District of Columbia, where he was residing at the time, for an accounting of the estate and the assets received on behalf of the estate. Vaughan, 40 U.S. at 2. The circuit court dismissed the suit, finding a want of jurisdiction. Id. at 4. On appeal, the Supreme Court affirmed, holding as follows:

Under these circumstances, the question is broadly presented, whether an administrator, appointed and deriving his authority from another state, is liable to be sued here, in his official character, for assets lawfully received by him, under and in virtue of his original letters of administration. We are of opinion, both upon principle and authority, that he is not. Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it; and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased, in any other state; and whatever |n operation is allowed to it beyond the original territory of the grant, is a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its own citizens. On the other hand, the administrator is exclusively bound to account for all the assets which he receives, under and in virtue of his administration, to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of those assets, according to the lex loci. Hence, it has become an established doctrine, that an administrator, appointed in one state, cannot, in his official capacity, sue for any debts due to his intestate, in the courts of another state; and that he is not liable to be sued in that capacity, in the courts of the latter, by any creditor, for any debts due there by his intestate.

Id. at 4 (emphasis added).

Stated another way, absent a statute to the contrary, where a court of one state grants a specific authority to an individual, whether as administrator or an estate or guardian of a ward, the authority vested in that person remains confined to the state in which the appointment was made; no other tribunal has the authority to reach beyond the confines of its own territory to order the individual to take any given action, such as — in this case— filing an accounting, whether in the original state of the appointment or in the state in which the second tribunal resides.

Other, albeit older, cases involving guardians are in accord with this principle. See, e.g., Bell v. Suddeth, 10 Miss. (2 S. & M.) 532 (1844) (probate court lacked jurisdiction to order guardian to order an accounting where the guardian had been appointed in Alabama, but not in Mississippi); Anderson v. Story, 53 Neb. 259, 73 N.W. 735 (1898) (even where parties stipulated to Nebraska court’s jurisdiction, that court lacked authority to entertain an 112accounting by a guardian who had been appointed in New York or to discharge the guardian); cf. Am. Sur. Co. of N.Y. v. Fitzgerald, 36 S.W.2d 1104 (Tex.Civ.App.1931) (guardian, Webster, who was appointed first in New York and later in Texas could be sued in Texas, upon the revocation of his Texas guardianship, for an accounting of his time as guardian in New York; the Texas Court of Civil Appeals noted that the court, “having power to appoint Webster, nonresident guardian of the ward’s estate in Texas, retained jurisdiction to control his activities, to remove him for cause, and to appoint his successor”).

Arkansas acknowledged this traditional common-law rule in Clopton v. Booker, 27 Ark. 482 (1872), in which we described the law at that time as “well settled that an executrix, as such, cannot be held to an account and settlement before a foreign court, or the court of a different State from the one granting such letters.” Clop-ton, 27 Ark. at 486. The Clopton court held, however, that the lower court had authority to entertain the suit because the case involved the title to and right to possession of Arkansas lands; moreover, the court did not interpret the complaint as seeking an accounting from the defendant in her capacity as executrix. Id. (“[I]t seems as well settled that the title of lands, and the right of possession thereto, must be determined by the courts of the State wherein the lands lie.”). We have no such circumstances here. The ward, Alexandra Vicari, has no real property or other local assets, and there is no question of whether she possesses title to any land. | [oAdditionally, unlike the Clopton case, the petition for an accounting and the order for an accounting are directed to Hetman in her capacity as guardian.

These older cases are based on the common law; nonetheless, we conclude that nothing in our statutory procedures indicate a contrary result on these particular facts. The “traditional rule” was a broad one and barred any actions against a guardian or administrator, including actions for the particular relief of an accounting. A foreign representative or guardian’s complete immunity from suit under the traditional rule has been abrogated to some degree by the advent of long-arm statutes allowing in personam jurisdiction over foreign guardians or representatives in appropriate circumstances. See, e.g., Golden Rule Ins. Co. v. Widoff 291 Ill.App.3d 112, 225 Ill.Dec. 373, 683 N.E.2d 541 (1997). The responsibility to provide an accounting to a foreign court, however, is of a different character than the type of actions for which in personam jurisdiction will suffice. Cf Golden Rule, supra (concluding that an action to enjoin a foreign personal representative’s distribution of assets in another state could not be sustained on the basis of in personam jurisdiction). Guardianship proceedings are purely statutory, and the particular circumstances of this case turn upon the absence of statutory authority to order a foreign guardian to render a statutory accounting, rather than on the presence or absence of in personam jurisdiction.

Taken as a whole, our statutes on guard-ianships and these cases indicate that the Carroll County Circuit Court lacked the statutory and territorial authority to compel | uHetman to file an accounting of her time as guardian in Pennsylvania. Under section 28-65-820, the court may direct “a guardian of the estate” to file an accounting; however, as Hetman correctly notes, she has never been a guardian of Vicari’s estate in Arkansas. While the statute does not specifically state that a court may only order an accounting from “an Arkansas guardian of the estate,” the above-cited case law makes it plain that an Arkansas court is prohibited from ordering an accounting from a former foreign guardian. Accordingly, we conclude that the circuit court erred in ordering Hetman to render an accounting of her time as guardian of Vicari’s person and estate in Pennsylvania.

In her final point on appeal, Het-man contends that the doctrine of res judi-cata should also have precluded the circuit court from ordering her to file an accounting. Having reversed on the issues discussed above, we do not find it necessary to address Hetman’s res judicata argument. However, even if we were to consider the issue, we would still be unable to reach the merits of it because the trial court’s order compelling an accounting did not rule on the question. The matter is thus not preserved for appellate review. See Lloyd v. Butts, 843 Ark. 620, 37 S.W.3d 603 (2001) (although appellant raised res judicata as a defense below, the chancellor did not rule or rely on it in his final order; therefore, the court was unable to reach the issue on appeal); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997) |1B(when appellant asserted the defense of res judicata, but failed to obtain a ruling from the chancellor on the issue, this court refused to consider the issue on appeal); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).

Reversed and remanded.

HANNAH, C.J., and GUNTER and DANIELSON, JJ., concur.

BROWN, J., concurs.

JIM HANNAH, Chief Justice,

concurring.

I concur in the conclusion that the circuit court erred in ordering Jean Hetman to provide an accounting for the time that she served as guardian of Alexandra Vicari under the prior Pennsylvania guardianship. However, I disagree with the majority’s conclusion that the circuit court had subject-matter jurisdiction over the requested accounting but lacked any authority to order an accounting to be undertaken. Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 268, 253 S.W.3d 444, 447 (2007). The circuit court either had jurisdiction or it did not. Here the circuit court did not have subject-matter jurisdiction.

The circuit court lacked subject-matter jurisdiction to order an accounting in a Pennsylvania guardianship supervised and controlled by the Pennsylvania courts. The confusion may arise because the circuit court had subject-matter jurisdiction over the Arkansas guardianship, but that jurisdiction does not reach to control a proceeding before another court in another state in a separate prior guardianship. Guardianships in Arkansas are now largely controlled by statute. See Arkansas Code Annotated, title 28. Guardians appointed in Arkansas guardianships must file ac-countings “(1) [a'Jnnually within sixty (60) days after the anniversary date of his or her appointment; and (2) within sixty (60) days after termination of his or her guardianship.” Ark.Code Ann. § 28-65-320 (Repl.2004). There is no provision in our statutes that purports to grant subject-matter jurisdiction over accountings for actions before a guardianship is created in Arkansas, and certainly we do not have any statutes that would confer jurisdiction on an Arkansas guardianship proceeding that would allow the circuit court to review and act in proceedings occurring under the direction and control of a sister state. If an accounting is to be ordered for the Pennsylvania guardianship, a Pennsylvania court will need to order it.

Schwade is not left without a remedy. The Orphans’ Court in Pennsylvania specifically ordered that the record in that case be retained. An accusation that a guardian 117supervised by the Pennsylvania courts defrauded a ward may result in reopening the guardianship and ordering an accounting by Hetman. Further, if Hetman defrauded Vieari, Schwade, as the Arkansas guardian, is free to pursue any cause of action that exists. See Ark.Code Ann. § 28-65-305 (Repl.2004) (guardian may prosecute suits on behalf of the ward).

GUNTER and DANIELSON, JJ., join.

ROBERT L. BROWN, Justice,

concurring.

I concur in the judgment because I agree with the majority that under current Arkansas statutes, the circuit judge lacked authority to order Ms. Hetman, a previous guardian who was appointed and removed by a Pennsylvania court, to file an accounting. That is unfortunate since I believe an accounting is appropriate in this case. I write separately to express my view that the Arkansas General Assembly should consider amending our guardianship statutes to address circumstances comparable to those that occurred in the instant case.

In our increasingly mobile society, I fear we will see many more cases with facts similar to those in this case, and Arkansas courts need the authority to effectively manage guardianships that are transferred here from other jurisdictions. I recognize the procedural | ^problems associated with this case. Ms. Hetman is no longer a guardian of her mother’s person or estate, and the Pennsylvania court did not have authority to transfer jurisdiction of the case to Arkansas. Where, as here, however, an Arkansas court specifically accepts jurisdiction of a guardianship from another state, and the former guardian submits to the jurisdiction of the court, that court should be permitted by statute to order the former guardian to file an accounting.

      . Before moving to Pennsylvania in 2000, Vi-cari had lived in Eureka Springs, where Schwade also resides.

      . The Carroll County court initially declined to enter any orders in the case filed in Arkansas until the Pennsylvania court either closed the file there or transferred the case to Carroll County.

      . The Pennsylvania court did not require an accounting from Hetman before terminating her guardianship. Under Pennsylvania law, such an accounting is not mandatory at that time. See 20 Pa. Cons.Stat. Ann. § 5531 ("A guardian shall file an account of his administration whenever directed to do so by the court or may file an accounting at the termination of the guardianship, or at any other time or times authorized by the court.”) (emphasis added).

      . This court has noted that the question of subject-matter jurisdiction is determined by the characterization of the case. See, e.g., Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).

      . "Guardian” is defined in Arkansas Code Annotated section 28-65-101(3) (Repl.2004) as "one appointed by a court to have the care and custody of the person or of the estate, or of both, of an incapacitated person.”

      . In addition, although our statutes allow a foreign guardian to petition for authority to bring certain actions within this state, see Ark.Code Ann. §§ 28-65-601 to -602 (Repl. 2004), this statute does not grant any authority to a court of this state to compel an accounting from a foreign guardian.

      . As the majority notes, the circuit court and the Pennsylvania court characterized this as transfer of a guardianship. There is no basis in the law for a transfer of guardianship between states. No transfer occurred here. A review of the record plainly reveals that the guardianship in Pennsylvania was terminated and, thereafter, a guardianship was created in Arkansas. While the term "transfer” may be useful in helping the courts to assure that a ward is provided with continuous care, it creates confusion when it is argued that jurisdiction was transferred.

      . At least four states and the District of Columbia, have passed the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) and another twenty are considering the measure. The UAGPPJA does not include a provision that would apply directly to these facts, but it does contemplate many of the problems that can arise with regard to multi-jurisdictional guardianship proceedings.


author: Justice SCHRODER. CUNNINGHAM, J., SCOTT, J.,

text:
    Arminta Jane MULLINS, Appellant, v. Phyllis Dianne PICKLESIMER, Appellee.
    No. 2008-SC-000484-DGE.
    Supreme Court of Kentucky.
    Jan. 21, 2010.
    As Modified on Denial of Rehearing Aug. 26, 2010.

      William R. Erwin, Helton, Erwin & Associates, Danville, KY, Counsel for Appellant.
    Robin Renee Slater, Lexington, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

We are called upon to determine whether the trial court erred in awarding joint custody of a child to the biological mother and her former same-sex partner. We adjudge that the trial court properly granted CR 60.02 relief regarding the parties’ agreed judgment of custody on grounds that it was based on falsified evidence and fraud. We further adjudge that the trial court properly found that Appellant had standing to seek custody of the child and that the natural mother waived her superior right to sole custody of the child in favor of a joint custody arrangement with Appellant. Hence, we affirm the Court of Appeals in part as to the parties’ agreed judgment of custody, and reverse in part as to its finding of no waiver and reinstate the judgment of the Garrard Circuit Court.

Phyllis Dianne Picklesimer (hereinafter “Picklesimer”) and Arminta Jane Mullins (hereinafter “Mullins”) were involved in a relationship and lived together as a couple for nearly five years. During that time, the couple decided they wanted to have a baby Picklesimer and Mullins worked together to find a sperm donor that had characteristics closest to Mullins. Once a sperm donor was chosen, Picklesimer was artificially inseminated and became pregnant. Mullins was present for the insemination of Picklesimer.

The pregnancy was difficult and Pickle-simer was hospitalized for the last month of the pregnancy. On May 31, 2005, Zachary Alexander Picklesimer-Mullins was born. Mullins and her mother, Nancy Mullins, were present for the birth. The parties jointly made the decision regarding the child’s surname, and the name Zachary Alexander Picklesimer-Mullins was listed on the birth certificate.

The parties had difficulty with their relationship during the pregnancy and separated for a short time. Picklesimer claimed Mullins had an affair during this time, which Mullins denied. The parties reconciled prior to the birth of Zachary, continuing with their plan to raise the child together as a family.

Zachary was born two months premature, which resulted in the infant being placed in the neonatal unit of the hospital for two months. During this time, both parties went to the hospital to provide care for Zachary.

Mullins works as a police detective, and Picklesimer is employed as a nurse. After Picklesimer’s maternity leave was up, Mullins took a one-month leave to care for the baby. It is undisputed that both parties provided for the care and financial support of Zachary. Zachary began calling Pickle-simer “mommy” and Mullins “momma.” When both parties went back to work, Mullins’ mother took care of Zachary while they were at work.

As Zachary became older, Mullins became concerned regarding her legal rights to Zachary. She expressed this concern with Picklesimer, specifically what rights would she have to Zachary if something happened to Picklesimer or if Zachary needed medical treatment. Mullins ultimately contacted attorney William Erwin concerning her legal rights. Mullins and Picklesimer met with Erwin on two occasions. On the first occasion, Erwin discussed with them their legal rights regarding the care of Zachary and the legal documents that could protect Mullins’ interest regarding Zachary. Picklesimer testified that Erwin specifically informed her that he was representing Mullins only in the matter. Picklesimer and Mullins met with Erwin a second time to review and sign the legal documents that he had drafted. It is undisputed that the parties signed the following documents on January 20, 2006: petition for custody; entry of appearance and consent to custody; and agreed judgment of custody. The documents stated that Mullins was the de facto custodian of Zachary — that Mullins was his primary caregiver and primary financial supporter for a period of time not less than six months from the date of his birth.

Even though the parties were living in Lincoln County, the petition and entry of appearance were filed in the Garrard Circuit Court without objection by either party. Without an evidentiary hearing, depositions, or any form of evidence taken prior thereto, the trial court signed the agreed judgment and entered the same on February 3, 2006. No appeal was filed from this judgment.

The parties lived together with Zachary until either some time in February, after the agreed judgment was entered, or until April of 2006. However, until September 2006, the parties continued to exercise timesharing on an equal basis with Zachary. Some time in September 2006, Pickle-simer refused to allow Mullins to have any further contact with Zachary unless Mullins visited him at Picklesimer’s home. Picklesimer testified that Mullins had violated their verbal agreement to not leave Zachary with anyone other than a family member. Mullins maintained that Pickle-simer refused to allow her to see Zachary because she had a problem with Mullins’ new relationship with another woman. Picklesimer admitted she had a problem with Mullins’ new relationship with another woman and admitted to telling Mullins, “We had him for us, not for you and her” and “I’m not going to share him with you to have a life of your own.”

As a result of being denied visitation with Zachary, Mullins filed a motion for joint care, custody and control of Zachary and requested that she be declared his primary residential custodian. Picklesimer responded with a motion to dismiss, arguing lack of jurisdiction and improper venue. In the alternative, Picklesimer filed a motion to set aside the agreed judgment of custody pursuant to CR 60.02 on grounds that it was based on fraud or mistake. Prior to the hearing on these motions, Mullins filed a motion for sole custody of Zachary because Picklesimer unilaterally withheld Zachary from Mullins and was not acting in the best interests of Zachary.

The trial court referred the matter to a domestic relations commissioner (“DRC”) who held a hearing on the issues on November 6, 2006. Picklesimer, Mullins, and Mullins’ mother were the only witnesses at the hearing. The DRC subsequently issued his findings of fact, conclusions of law, and recommendations. The DRC granted Picklesimer’s motion to set aside the agreed judgment on grounds of Mullins’ failure to qualify as a de facto custodian, but found that Picklesimer waived her superior right to custody in favor of Mullins as a joint custodian. The DRC then recommended that the parties be awarded joint custody of Zachary, with Picklesimer being designated primary residential custodian. Both parties filed exceptions to the DRC’s report. On December 1, 2006, the trial court overruled both parties’ exceptions and adopted the findings of fact and recommendations of the DRC.

Picklesimer appealed to the Court of Appeals, and Mullins filed a cross-appeal. Picklesimer argued on appeal that the Garrard Circuit Court lacked jurisdiction and venue to issue the custody order, that Mullins lacked standing to pursue custody, and that the trial court erred in finding that she waived her superior right to custody. Mullins argued that the trial court erred in granting the CR 60.02 motion invalidating the February 3, 2006 agreed judgment of custody. The Court of Appeals rejected Picklesimer’s argument that the Garrard Circuit Court lacked jurisdiction and venue. The Court of Appeals also rejected Mullins’ argument that the trial court erred in setting aside the agreed judgment of custody, agreeing with the trial court that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However, the Court of Appeals reversed the trial court’s finding that Picklesimer waived her superior right to custody of Zachary. Because the Court adjudged that Mullins was not Zachary’s de facto custodian and Picklesimer had not waived her superior right to custody, the Court of Appeals concluded that Mullins did not have standing to pursue custody of Zachary. The case is now before us upon the granting of Mullins’ motion for discretionary review.

STANDING

At the outset, we note that to qualify as a de facto custodian in Kentucky, one must be “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 years of age.... ” KRS 403.270(l)(a). It has been held that parenting the child alongside the natural parent does not meet the de facto custodian standard in KRS 403.270(l)(a). Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky.App.2001), abrogated on other grounds by Moore v. Asente, 110 S.W.3d 336 (Ky.2003). Rather, the non-parent must “literally stand in the place of the natural parent.” Id. Although Mullins was providing care and financial support for Zachary, it was undisputed that Mullins did not have de facto custody status regarding Zachary because she was co-parenting the child with Picklesimer. Picklesimer maintains that once the court determined Mullins was not a de facto custodian, Mullins no longer had standing to pursue custody on any other grounds. We disagree.

Prior to 2004, standing to bring a custody action was limited by KRS 403.240 to “a parent, a de facto custodian of the child, or a person other than a parent only if the child is not in the physical custody of one of the parents.” B.F. v. T.D., 194 S.W.3d 310, 310-11 (Ky.2006) (partner who lived ■with mother and mother’s adopted child for six years as a family did not have standing to seek custody because the child was in the physical custody of the legal parent.); Moore, 110 S.W.3d at 355-56. However, KRS 403.270 et seq., the Uniform Child Custody Jurisdiction Act, was repealed in 2004 and replaced by KRS 403.800 et seq., the Uniform Child Custody Jurisdiction and Enforcement Act. KRS 403.822, provides as follows:

(1)Except as otherwise provided in KRS 403.828, a court of this state shall have jurisdiction to make an initial child custody determination only if:
(a)This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or
(b) A court of another state does not have jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836; and
1. The child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; or
(c) All courts having jurisdiction under paragraph (a) or (b) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under KRS 403.834 or 403.836; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b), or (c) of this subsection.
(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

(emphasis added). The current statute confers standing on the child’s parent(s) or “a person acting as a parent.” KRS 408.800(13) defines “a person acting as a parent” as:

a person, other than a parent, who:
(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state;

As used in KRS 403.800 to KRS 403.880, “physical custody” means “physical care and supervision of a child.” KRS 403.800(14). This statutory definition of “physical custody” does not require exclusive care and exclusive supervision. Thus a person like Mullins, who for the requisite period of time performed all the traditional parental responsibilities, concurrently with another or on an equal time sharing basis, had “physical custody” under the provisions of KRS 403.800 et seq.

“It is presumed that the Legislature was cognizant of preexisting statutes at the time it enacted a later statute on the same subject matter.” Shewmaker v. Commonwealth, 30 S.W.3d 807, 809 (Ky.App.2000). Instead of requiring that the child not be in the physical custody of the parent as KRS 403.240 did, the new statute grants standing to a nonparent who, acting as parent to the child, has physical custody of the child. Hence, KRS 403.822 would seem to permit standing in a shared custody co-parenting situation, since there is no longer a requirement of physical custody to the exclusion of the parent, if the nonparent can meet one of the requirements of subsection (b) of KRS 403.800(13) — she has been awarded legal custody or claims a right to legal custody under Kentucky law.

Although KRS 403.822 directly addresses the issue of the court’s jurisdiction to make an initial custody determination, by identifying the adult persons who must be present in the forum state for jurisdiction to arise (parent or person acting as a parent), the statute implicitly identifies those persons as parties who may bring an action seeking initial custody of the child. It would make little sense to confer jurisdiction to this state when only “a person acting as a parent” resides here, and not at the same time confer standing upon that person to assert initial custody of the child. Otherwise, the state would have jurisdiction of the matter without any resident of the state having standing to bring an action to assert initial custody in the forum. That would clearly be an unreasonable interpretation of the statute, and is one which we believe our legislature did not intend. Moreover, it would make little sense for a person acting as a parent to have standing only if there is a jurisdictional dispute about which is the proper forum state, but not to have standing when there is not a jurisdictional dispute. Again, this would produce an unreasonable result.

Several of our sister states have found that the nonparent has standing to seek custody or visitation of the child when the child was conceived by artificial insemination with the intent that the child would be co-parented by the parent and her partner, and the parent and her partner had thereafter co-parented the child for a period of time. See, e.g., In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161 (2005) (partner had standing as a common law de facto parent which was limited to nonpar-ents who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life); J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314 (1996) (mother’s former domestic partner stood in loco par-entis with child and, therefore, had standing to seek partial custody of child born during their relationship); In re Custody of H.S.H.-K, 193 Wis.2d 649, 533 N.W.2d 419 (1995) (nonparent has standing to seek visitation of child if a parent-like relationship with the child is shown); A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (N.M.Ct.App.1992) (former partner who had entered into oral co-parenting agreement had standing to seek joint legal custody and time-sharing of partner’s biological child).

The facts in J.A.L. v. E.P.H., are nearly identical to those in the case at hand. The parties jointly made the decision to bring a child into the world through artificial insemination, entered into a co-parenting agreement, and thereafter lived together with the child as a family for ten months, with both parties providing for the care and financial support of the child. Id. at 1316-17. Subsequently, the parties separated, but, per agreement of the parties, the mother’s former partner continued to have visitation of the child for two years after the separation. J.A.L., 682 A.2d at 1317-18. The Court adjudged that the mother’s former partner had standing as a result of the parent-like relationship that was allowed to develop between the former partner and the child through “the participation and acquiescence of the natural parent.” Id. at 1321.

[W]e hold that the fact that the petitioner lived with the child and the natural parent in a family setting, whether a traditional family or a nontraditional one, and developed a relationship with the child as a result of the participation and acquiescence of the natural parent must be an important factor in determining whether the petitioner has standing.
The facts as found by the trial court clearly indicate that E.P.H. and J.A.L. had lived together not merely as roommates or friends, but as a nontraditional family, for many years before the birth of the child. E.P.H.’s own testimony establishes that although she had long wished to have a child, she did not do so until J.A.L. agreed, and thereafter the parties acted together to make arrangements for the artificial inseminations. The inescapable conclusion to be drawn from this evidence is that in both E.P.H.’s and J.A.L.’s minds, the child was to be a member of their nontraditional family, the child of both of them and not merely the offspring of E.P.H. as a single parent. This intention is borne out by the documents executed by the parties before the child’s birth and by E.P.H.’s conduct in giving the child J.A.L.’s surname as a middle name on the birth certificate. Clearly, the parties contemplated that J.A.L. would be in a parent-like relationship with the child and took some pains to formalize that relationship to the extent legally possible.

Id.

In the present case, the child was conceived through artificial insemination and brought into the world upon agreement of the parties to parent the child together. It was undisputed that Mullins physically cared for and supervised Zachary from birth throughout the period the parties were together and for the five months thereafter when they shared custody. And she did so in the capacity of a parent, which is evidenced by her living as a family with the child and Picklesimer, the child calling her “momma,” the child’s hyphenated surname (Picklesimer-Mullins), the parties’ attempt to confer parental rights on Mullins with the agreed judgment of custody, and Picklesimer continuing to allow Mullins to co-parent to the child for some five months after the parties’ relationship dissolved. This would distinguish the nonparent acting as a parent to the child from a grandparent, a babysitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the capacity of another parent. Further, Mullins claimed a right to legal custody of Zachary under the agreed judgment of custody, thereby satisfying the requirement of KRS 403.800(13)(b). Accordingly, we adjudge that Mullins has standing in this case to seek custody of Zachary.

AGREED JUDGMENT OF CUSTODY

Mullins argues that regardless of the fact that she could not qualify as Zachary’s de facto custodian under the law, the trial court erred in setting aside the agreed judgment pursuant to CR 60.02. CR 60.02(c) allows a court to grant relief from a judgment on grounds of “perjury or falsified evidence[,]” and Section (d) permits relief if there was “fraud affecting the proceedings, other than perjury or falsified evidence[.]” We agree with the Court of Appeals that the assertion in the agreed judgment that Mullins was the child’s primary caregiver and primary financial provider constituted both falsified evidence and fraud affecting the proceedings warranting relief from the judgment.

We note that the fraud upon which we base our ruling was not Picklesimer’s claim that Mullins fraudulently led her to believe that Mullins intended to maintain a relationship with her. Rather, it was the false claim by both parties that Mullins was the de facto custodian. We would add that an agreement regarding parental rights cannot be conditioned upon the couple staying together and living in the same household. Such an agreement is about the parties’ relationship with the child, and not the parties’ relationship with each other. And the chance that the relationship with the nonparent will not continue does not diminish the strong parental bond that has been allowed to develop between the child and the nonparent.

Mullins also maintains that Pick-lesimer is not entitled to relief under CR 60.02 because she was a party to the fraud and thus had unclean hands. Under the “unclean hands doctrine,” a party is precluded from judicial relief if that party “engaged in fraudulent, illegal, or unconscionable conduct” in connection “with the matter in litigation.” Suter v. Mazyck, 226 S.W.3d 837, 843 (Ky.App.2007). “In a long and unbroken line of cases this court has refused relief to one, who has created by his fraudulent acts the situation from which he asks to be extricated.” Asher v. Asher, 278 Ky. 802, 129 S.W.2d 552, 553 (1939). A trial courts decision to invoke the equitable defense of the unclean hands doctrine rests within its sound discretion. See Petroleum Exploration v. Pub. Serv. Comm’n of Kentucky, 304 U.S. 209, 218, 58 S.Ct. 834, 82 L.Ed. 1294 (1938). The doctrine will not be applied to all misconduct, as when “the plaintiff has engaged in conduct less offensive than that of the defendant.” Suter, 226 S.W.3d at 843.

While the evidence established that Picklesimer signed the agreement voluntarily and clearly intended to confer custody rights on Mullins, it was Mullins’ idea to have the agreed judgment drawn up by her attorney, and Picklesimer signed it without the benefit of her own counsel. Moreover, because the agreed judgment pertained to child custody, the equity of the parties was subordinate to the welfare of the child, and the judgment could not be permitted to stand if based on fraud or falsified evidence.

We likewise reject Mullins’ contention that Picklesimer’s failure to file an appeal from the agreed judgment barred relief under CR 60.02. Although CR 60.02 is not a substitute for an untimely filed appeal, see United Bonding Ins. Co. v. Commonwealth, 461 S.W.2d 535, 586 (Ky.1970), there is no requirement in CR 60.02 that an appeal be filed from the judgment. See Urban Renewal & Community Dev. Agency v. Goodwin, 514 S.W.2d 190, 191 (Ky.1974) (stating that a motion under CR 60.02 is not an appeal). Accordingly, the trial court did not abuse its discretion in setting aside the agreed judgment in the instant case.

WAIVER

Mullins argues that the Court of Appeals erred in reversing the trial court’s finding that Picklesimer waived her superi- or right to custody. She maintains that the Court of Appeals substituted its findings for the trial court’s and misinterpreted the law relating to waiver.

Parents of a child have a fundamental, basic, and constitutional right to raise, care for, and control their own children. Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky.1989). When a non-parent does not meet the statutory standard of de facto custodian in KRS 403.270, 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. Moore, 110 S.W.3d at 359. Contrary to PicWesimer’s position, the concept of waiver of custodial rights was not superseded by KRS 403.270(1). As the Court of Appeals stated in Boone v. Ballinger,

[I]t is apparent that the concept of waiver remains alive and well in a custody dispute between a non-parent and a parent in situations where the non-parent cannot qualify as a de facto custodian yet the parent’s conduct warrants a finding of waiver, allowing the non-parent to then be considered for custody.

228 S.W.3d 1,10 (Ky.App.2007).

Because Mullins could not qualify as the child’s de facto custodian, as discussed above, the only way Mullins could establish custody rights to Zachary is if Picklesimer waived her superior custody rights.

“The common definition of a legal waiver is that it is a voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his option might have demanded or insisted upon.” Greathouse v. Shreve, 891 S.W.2d 387, 390 (Ky.1995) (quoting Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). “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.” Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky.2004) (quoting Greathouse, 891 S.W.2d at 390-91).

The trial court found that Picklesimer waived her superior right to custody “by acknowledging, on a continuous basis, that [Mullins] is a parent of the child, by permitting extensive visitation and time sharing with [Mullins], and by co-parenting the child along with [Mullins] from the child’s birth until the separation of the parties.” The trial court specifically found that “[u]nlike a De Facto Custodian, waiver of the parent’s superior right to custody is not required to be exercised at the exclusion of the natural parent.” Relying on Vinson v. Sorrell, 136 S.W.3d 465, the Court of Appeals reversed the trial court, adjudging that there can be no waiver of one’s custody right unless the child is separated from the natural parent while in the custody of the nonparent. Hence, the Court of Appeals held that because Zachary had always been in Picklesimer’s care, Picklesimer could not have waived her superior right to custody.

In Vinson, the child had been in the custody of the grandparents for a year (due to the mother’s drug problem), and had been away from the father for almost five years. Id. at 466. This Court considered the following factors in determining whether the father had waived his custody rights:

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.

Id. at 470 (citing Shifflet v. Shifflet, 891 S.W.2d 392, 397 (Ky.1995) (Spain, J., concurring)). The Court of Appeals read the factors in Vinson to be exhaustive and as requiring separation of the child from the natural parent in all cases where waiver is alleged. Because of the complexity and uniqueness of child custody cases, we do not view the factors considered by this Court in Vinson to be exhaustive. While the factors in Vinson serve as a helpful guide in evaluating cases where the natural parent has surrendered full possession of the child to a nonparent, we believe these cases should be viewed on a case-by-case basis and that no specific set of factors must be present in order to find there has been a waiver.

Moreover, we adjudge that there can be a waiver of some part of custody rights demonstrating an intent to eo-par-ent a child with a nonparent. We see no reason why the law of waiver of custody rights should apply only to the full surrender of the child to the nonparent, to the exclusion of a waiver of some part of the superior parental right, which would essentially give the child another parent in addition to the natural parent. In this case, Picklesimer waived her superior right to sole custody of the child in favor of a joint custody arrangement with Mullins. In joint custody, each parent has full legal custody of the child, but they must share decision-making and physical possession of the child. See Pennington v. Marcum, 266 S.W.3d 759, 764 (Ky.2008) and Frances v. Frances, 266 S.W.3d 754 (Ky.2008). What Picklesimer waived in this case was her right to be the sole decision-maker regarding her child and the right to sole physical possession of the child. This is an absolute waiver of part of her superior custody rights as the natural parent of the child.

The recognition of the applicability of the doctrine of waiver in a child custody situation is legally justified as well as necessary “in order to prevent the harm that inevitably results from the destruction of the bond that develops” between the child and the nonparent who has raised the child as his or her own. Boone, 228 S.W.3d at 10. The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonpar-ent to whom the parent has relinquished full custody.

We find the case of Heatzig v. MacLean, 191 N.C.App. 451, 664 S.E.2d 347 (2008), which involved a child custody dispute between a natural parent and her former same-sex domestic partner over children conceived through artificial insemination, helpful in our analysis. In Heatzig, the North Carolina Court of Appeals couched its analysis in terms of whether the natural parent had acted in a manner inconsistent with her constitutionally protected status as a natural parent. Id. at 350-51. The Court noted that the focus should be on “whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relation ship with his or her child.” Id. at 354 (quoting Estroff v. Chatterjee, 190 N.C.App. 61, 660 S.E.2d 73, 78 (2008)). The Heatzig Court cited the following factors considered by the court in a similar case:

(1) both plaintiff and defendant jointly decided to create a family unit; (2) defendant intentionally identified plaintiff as parent; (3) the sperm donor was selected based upon physical characteristics similar to those of plaintiff; (4) the surname of plaintiff was used as one of the child’s names; (5) plaintiff participated in the pregnancy and the birth of the child; (6) there was a baptism ceremony where both plaintiff and defendant were identified as parents; (7) plaintiff was identified as a parent on school forms; (8) they functioned together as a family unit for four years; (9) after the relationship between plaintiff and defendant ended, the defendant allowed plaintiff the functional equivalent of custody for three years; (10) defendant encouraged, fostered, and facilitated an emotional and psychological bond between plaintiff and the child; (11) plaintiff provided care and financial support for the child; (12) the child considered plaintiff to be a parent; (13) plaintiff and defendant shared decision-making authority with respect to the child; (14) plaintiff was a medical power of attorney for the child; (15) the parties voluntarily entered into a parenting agreement; and (16) defendant intended to create between plaintiff and the child a permanent parent-like relationship.

Heatzig, 664 S.E.2d at 353-54 (citing Mason v. Dwinnell, 190 N.C.App. 209, 660 S.E.2d 58, 67 (2008)).

In the case at hand, a myriad of the above factors are present. The evidence established that Picklesimer and Mullins decided jointly to start a family, and the sperm donor was selected based on Mullins’ characteristics. The child was given a hyphenated surname combining both parties’ last names, and that name was listed on his birth certificate. Mullins was involved in the pregnancy, was there for the delivery and cared for Zachary during the period he was in the neonatal unit. Mullins, Picklesimer and Zachary functioned as a family unit for nearly a year, after which time the parties shared custody of Zachary for another five months. Zachary referred to Mullins as “momma,” and it was undisputed that Picklesimer encouraged, fostered, and facilitated an emotional and psychological bond between Mullins and the child. Picklesimer admitted in her testimony that Zachary looked to both her and Mullins as his parents. There was evidence that Mullins provided for the care and financial support of Zachary (along with Picklesimer) when she was with Pick-lesimer and thereafter when they shared custody.

Finally, there was the parties’ attempt to enter into a formal written agreement bestowing custody status on Mullins. Picklesimer argues that because the agreement was declared invalid due to Mullins not having de facto custody status, it cannot the considered by the court as evidence of waiver. We disagree. Even though the agreement was properly found to be invalid, we nevertheless believe it was relevant to show Picklesimer’s intent to confer parental rights to Zachary on Mullins.

A trial court’s findings of fact in a domestic matter can only be set aside by a reviewing court if those findings are clearly erroneous. Reichle v. Reichle, 719 S.W.2d 442 (Ky.1986); CR 52.01. To determine whether findings are clearly erroneous, reviewing courts must focus on whether those findings are supported by substantial evidence. Moore, 110 S.W.3d at 354. From our review of the case, there was substantial clear and convincing evidence to support the trial court’s finding that Picklesimer waived her superior custody rights to Zachary for the purpose of co-parenting the child with Mullins as joint custodians. Thus, we reverse the Court of Appeals on the waiver issue.

For the reasons stated above, the opinion of the Court of the Appeals is affirmed in part and reversed in part, and the judgment of the Garrard Circuit Court is reinstated.

All sitting. ABRAMSON, NOBLE, and VENTERS, JJ., concur.

CUNNINGHAM, J., concurs in part and dissents in part by separate opinion, in which MINTON, C.J., and SCOTT, J., join.

SCOTT, J., concurs in part and dissents in part by separate opinion.

CUNNINGHAM, J.,

concurring in part and dissenting in part.

Believing that the majority is writing with a wide legislative brush, sweeping away the precedents of this Court, I respectfully dissent as to the majority opinion concerning partial waiver.

KRS 405.020 and KRS 403.270, our custody statutes, provide standing in child custody claims only for parents and de facto custodians. Under the statutory scheme passed by our legislature, Appellant has neither standing nor the right to make a custody claim in this case. Neither does she have a claim under the long standing judicially imposed principle of waiver. The majority in this case in effect breaks out a totally new concept of a partial waiver to arrive at a result-driven decision.

The judicial principle of waiver, as applied to child custody, first saw the light of day in Van Wey v. Van Wey, 656 S.W.2d 731 (Ky.1983). However, this principle was first conceived as far back as sixty years ago in Rose v. Ledford, 306 Ky. 662, 208 S.W.2d 957 (1948). In these embryonic cases, right up to today, surrender of custody and separation were the critical lynehpins of the waiver concept. I submit that this is because the Court recognized that there was no statutory basis for such a theory, and it had to be construed tightly to protect the rights and interests of the natural parents.

We continued to speak in this vein in Greathouse v. Shreve, 891 S.W.2d 387 (Ky.1995). The Greathouse majority stated that an intentional or voluntary relinquishment of a known right to custody occurs “where the party seeking custody has surrendered the care and custody of the child to another, particularly a grandparent, and has acquiesced in the child’s remaining there for an extended period of time.” Id. at 389 (emphasis added). The waiver as to non-parent claims to custody outside the statutory authority was strictly confined to one of the parents surrendering and relinquishing care and custody of the child— clearly not the case here. The series of cases applying this principle have dealt only with grandparents, biological parents, or adoptive parents.

A brief review of these cases will clearly show how the majority today unhinges all precedents on this issue. In doing so, it severs the legal standing of parenthood from the safe mooring of the law.

In Shifflet v. Shifflet, 891 S.W.2d 892 (Ky.1995) (mother v. paternal grandmother), rendered at the same time as Great-house, Justice Leibson warns: “The parent’s superior right of custody is not lost to a non-parent, including a grandparent, simply because a child is left in the care of the non-parent for a considerable length of time.” Id. at 894. In addition, because a parent’s superior right of custody has both constitutional and statutory underpinnings, proof of waiver must be clear and convincing. Id.

In Moore v. Asente, 110 S.W.3d 336, 358 (Ky.2003) (birth parents v. adoptive parents), this Court stated:

Kentucky’s appellate courts have recognized not only that “parents of a child have a statutorily granted superior right to its care and custody,” but also “that parents have fundamental, basic and constitutionally protected rights to raise their own children.” And, because we would necessarily abrogate those rights if we were to resolve custody disputes on a “best interest of the child” standard after allowing the nonparent to obtain standing by mere possession of the child, we hold that “physical custody” for the purposes of establishing standing requires more than “actual possession and control of a child” at the time a custody action is commenced — i.e., a showing “that the parent has somehow voluntarily and indefinitely relinquished custody of the child.” (Emphasis added and internal citations omitted.)

In Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky.2004) (maternal grandparents v. father), we stated: “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.” This Court looked at five key factors in making that determination. After doing so, this Court found that “[c]ase law clearly demonstrates that allowing [child] to live with her grandparents and [father’s] sporadic participation in [child’s] upbringing does not constitute express waiver.” Id.

The Vinson factors were followed as late as three years ago by the Kentucky Court of Appeals in Boone v. Ballinger, 228 S.W.3d 1 (Ky.App.2007), a case dealing with a custody fight between a biological father and the “married father.” Our distinguished sister, Justice Abramson, writing then for that court, found “all of these factors invariably present” in that case. Id. at 11.

What are these Vinson factors?

They all assume separation of the child from the natural parent and are consistent with the line of Kentucky cases which subscribe to the notion of separation.

These factors are: (1) the length of time the child has been away from the parent; (2) circumstances of separation; (3) age of the child when care was assumed by the non-parent; (4) time elapsed before the parent sought to claim the child; and (5) frequency and nature of contact, if any, between the parent and the child during the non-parents custody. Vinson, 136 S.W.3d at 470.

It is beyond dispute that no separation is present in this case; that the child has not been away from the parent; that care was never exclusively assumed by a non-parent; and that contact has remained uninterrupted. In other words, none of the Vinson factors are present. The majority today totally, casts aside these well-reasoned and entrenched considerations without as much as a wave of the hand.

By not requiring separation from parent as a requirement of waiver, the majority introduces a new principle in custody cases which amounts to a partial waiver. This judicial engineering undermines the statutory protection of the parent and opens the door wide for all third parties who can show shared participation in child rearing. This new found rule of law will — in an age of working parents and shared nurturing — equally fit as many grandparents, uncles, aunts, neighbors, and even babysitters, as it does Appellant and others who may “co-parent” a child. We cannot, by judicial edict, just open wide the door and wave everyone in who wishes to parent a child.

Lastly, the majority ruling here today edges us precariously close to running afoul of the U.S. Supreme Court case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and our own Court of Appeals decision in Scott v. Scott, 80 S.W.3d 447 (Ky.App.2002), following that lead. “Very simply,” said the Kentucky Court in quoting from Troxel, “the Due Process clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 450. Those cases boldly restate that the right of a parent to his or her child is perhaps the most basic of all human rights. Our legislature has dutifully circumscribed those limited exceptions to these rights.

If there is one thing that the children of our Commonwealth need today it is stability-

This is a destabilizing decision.

We, in the first part of the 21st century, find ourselves in a torrent of fast moving waters of change in American domestic life. We are constantly confronted, as here, with domestic arrangements that the writers of our family and child custody laws never imagined thirty years ago. How to deal with these changes are political concerns. We should not, in order to accommodate unique and peculiar situations, impose our own whim upon a situation that is a legislative matter.

MINTON, C.J., and SCOTT, J., join this opinion.

SCOTT, J.,

concurring in part and dissenting in part.

I am compelled by the logic of “parenthood” and precedent to join Justice Cunningham’s well-reasoned dissent. The new of theory of “waiver” fashioned by the majorities’ opinion — now “unhinged” from the former requirement of the child’s significant physical separation from the parent — will ultimately enable step-parents to contest for custody of their step-children, even in short term marriages.

      . Picklesimer testified that Mullins left her the day after the agreed judgment was entered. Mullins testified that while the parties were having problems in February 2006, the relationship did not end until April of 2006.

      . Although this opinion was rendered in 2006, the Court makes clear that it applied KRS 403.420 because the suit was filed in 2003 before KRS 403.800 et seq. was enacted.

      . Not an issue in this case.

      . KRS 403.270(1) provides for de facto custodian status and sets out the requirements to qualify as a de facto custodian.