Opinion
NO. 2012-CA-001756-ME
2013-09-13
A.M. (NOW F.) APPELLANT v. A.A. APPELLEE
BRIEF FOR APPELLANT: Gordon J. Dill Ashland, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT
FAMILY DIVISION
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 08-CI-00225
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. COMBS, JUDGE: Mother appeals the order of the Greenup Circuit Court that denied her motion to change timesharing and to relocate to North Carolina with her minor child. After our review, we affirm.
Mother and Father were never married, but they are the parents of a child who was born in 2005. For the first two years of the child's life, Mother, Father, and the child resided with Father's mother. It is not clear when Mother and Father ended their relationship, but in October 2007, Mother and the child moved into a separate residence. In August 2008, the court ordered joint custody and equal time-sharing.
From August 2008 until August 2011, the child spent three and one-half days with each parent every week. After he entered kindergarten, the parents agreed to change the time-sharing. The child stayed in Mother's home during the week. After school on Friday, he rode the bus to Father's home, remaining there until he rode the bus to school on Monday morning. They continued this arrangement during the summer after kindergarten.
On June 14, 2012, Mother filed a motion to amend the timesharing arrangement. She asked to be named the primary custodial parent in order to relocate to Jacksonville, North Carolina. Mother had married and now had a second child. Her husband is in the Marine Corps and is stationed in Jacksonville. She wanted to move to Jacksonville with the child and with the new baby.
The court held a hearing on August 28, 2012. On September 7, 2012, it entered its findings and order. The court did not disturb the joint custody arrangement. However, it found that it would be in the child's best interest not to relocate with Mother. The court held that if Mother remained in Greenup County, the timesharing arrangement would not change. However, if she relocated, Father would be designated as the primary custodial parent. This appeal by Mother follows.
The DVD in the record is incomplete and does not contain the entire hearing. However, the court's findings are sufficient for our review. The parties do not cite anything from the hearing that is contrary to the court's conclusion.
Family courts have broad discretion in matters regarding the evidence presented to them. Jones v. Hammond, 329 S.W.3d 331, 334 (Ky. App. 2010). Our standard of review is governed by Kentucky Rule[s] of Civil Procedure (CR) 52.01. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986) (The rule applies to child custody cases); Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky. 1980) (CR 52.01 applies to domestic cases). The rule provides that in actions without juries, the trial court's findings of facts should not be reversed unless they were clearly erroneous. Clear error only occurs when there is not substantial evidence in the record to support the trial court's findings. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). We may not disturb a trial court's decision unless it abused its discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009).
Issues of relocation and timesharing are controlled by Kentucky Revised Statute[s] (KRS) 403.320. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). The section of the statute relevant to this case allows a court to:
modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.KRS 403.320(3). The factors in KRS 403.270(2) provide guidance in determining the best interest of a child, but the analysis is "fact-driven rather than law-driven, because the legal standard is whether the relocation is in the best interests of the child[.]" Anderson v. Johnson, 350 S.W.3d 453, 455 (Ky. 2011).
This statute has been amended by the 2013 General Assembly. However, the 2012 version applies to this case.
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The factors listed in KRS 403.270(2) were intended for initial custody determinations. Nonetheless, it is appropriate to consider them. The statute instructs the court to evaluate "all relevant factors," including a list of specific issues:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;This list is neither exhaustive nor exclusive, and in this case, few of the factors are relevant. First, no de facto custodian is involved or at issue. Additionally, neither party has alleged any domestic violence, mental health, or physical health issues. Neither party argues the wishes of the child. Therefore, only subsections (a), (c), and (d) may be considered as relevant.
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de facto custodian; and
(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
The wishes of the parents are clear and concise: Mother has requested the timesharing modification, while Father opposes it. The court appears to have applied subsections (c) and (d) in its analysis, finding that remaining in Greenup County would be in the best interest of the child.
Both parents have extended family in Greenup County. The child has a close relationship with his paternal grandmother. Mother even testified that when she needed a babysitter, the paternal grandmother would keep the child. The court observed that the child had attended school, participated in sports, and attended church in Greenup County. The court concluded that "it would be detrimental to the child to require him to move to North Carolina among people that he does not know other than his mother and his step-father." Additionally, Mother testified that her courtship and marriage to her husband had occurred long-distance and that the child's half-brother was less than six months of age at the time of the hearing. On the other hand, the child's bonds with his family and friends in Greenup County are life-long. Mother testified that the child had lived at his grandmother's house for the majority of his life. Therefore, we are unable to conclude that keeping the child in a familiar environment was an abuse of discretion.
Mother argues that the court failed to give proper consideration to Father's history of DUI convictions. Father admitted that at the time of the hearing, he did not possess a driver's license. However, he testified that his mother is available to transport the child. Additionally, our Supreme Court has confronted the issue of parental misconduct, concluding as follows:
when the misconduct of a proposed custodian is advanced as a factor in the determination of custody, evidence of such misconduct may be heard and received, but before giving any consideration to such misconduct, the court must conclude, in his reasonable discretion, that such misconduct has affected, or is likely to affect, the child adversely. If such a determination is made, the trial court may then consider the potential adverse effect of such misconduct as it relates to the best interest of the child.Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983).
In this case, Mother has not presented any evidence that Father's drinking habits have endangered or adversely affected the child. There was no testimony that Father had driven drunk with the child in the vehicle. He testified that if he goes out drinking on weekend nights, he does so after the child has gone to bed. Father lives with his mother, and so the child is supervised. He admitted to drinking six beers over the time period of six hours at a company picnic that he attended with the child. However, there was no testimony that Father became intoxicated or drove that day.
The record also does not suggest that Mother put forth proof of adverse effects of Father's drinking habits for the trial court to consider. However, because we have been provided with an incomplete record, we must conclude that the missing portions support the findings of the trial court. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Accordingly, we affirm the order of the Greenup Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gordon J. Dill
Ashland, Kentucky
BRIEF FOR APPELLEE: Tracy D. Frye
Russell, Kentucky