Opinion
NO. 2011-CA-000288-MR
10-26-2012
MARSHA L. GRUBBS (NOW BARTLETT) APPELLANT v. RANDALL S. GRUBBS APPELLEE
BRIEFS FOR APPELLANT: Bard K. Brian Paducah, Kentucky BRIEF FOR APPELLEE: Jim Paitsel Fulton, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 05-CI-00044
OPINION
AFFIRMING
BEFORE: DIXON, KELLER, AND STUMBO, JUDGES. STUMBO, JUDGE: Marsha L. Grubbs (now Bartlett) appeals from the January 19, 2011 order of the Hickman Circuit Court that denied her motion to amend the timesharing schedule for her and ex-husband Randall S. Grubbs' minor child. Because we find no error with the trial court's judgment, we affirm.
The parties, divorced in 2006, are the biological parents of one child, Laken. This appeal pertains only to the custody and timesharing arrangements between the parties. Scott resides in Hickman County, Kentucky, and Marsha resides in Franklin, Tennessee. By agreed order dated April 3, 2008, the parties agreed to joint custody wherein Laken would reside with Scott while school is in session and would reside with Marsha every weekend as well as every spring break, fall break, and summer break.
On October 16, 2009, Randall filed a motion to modify visitation, in which he sought to have Marsha's weekend visits reduced to every other weekend, to retain two weeks during the summer so that Laken could attend vacation bible school and a family vacation while in his care, and to alternate holidays with Marsha. Thereafter, on March 15, 2010, Randall filed a motion to amend custody and modify visitation. Therein, Randall sought to be named the sole custodian of Laken and again sought the modified timesharing schedule requested in October of 2009. On March 9, 2010, Marsha filed her own motion to modify visitation in which she requested that she be the primary physical custodian of Laken.
Following a hearing, the trial court issued an order, entered on January 19, 2011, in which the trial court denied Marsha's motion to amend visitation, granted Randall's motion to amend visitation, and laid out the details for the changes. Several other, unrelated, motions were also addressed. This appeal followed. Marsha appeals only from the denial of her motion to amend visitation.
Marsha's sole argument on appeal is that the trial court's denial of her motion to amend visitation is unsupported by the evidence and is not a result of the "best interest" standard. Modification of visitation is governed by Kentucky Revised Statutes (KRS) 403.320(3) which allows modification when it "would serve the best interests of the child[.]" Our standard of review is set forth in Kentucky Rules of Civil Procedure (CR) 52.01, that directs findings of fact shall not be set aside unless clearly erroneous. Due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008). It is not the function of this Court to determine whether we "would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005); Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974).
As is commonly seen in custody and timesharing disputes, we are herein faced with a classic he said, she said situation. At the hearing, Marsha made numerous allegations as to why Randall is not the appropriate party to be primary residential custodian of Laken, and Randall did the same. Testimony was presented as to both parties' households and the various extracurricular activities Laken is involved in while with each parent, including sports, church, and music lessons. Evidence was introduced that Randall's one-time refusal to bend the timesharing agreement by 24 hours resulted in Laken missing an opportunity to visit Disney World. Additionally, evidence was introduced that Marsha made a false report of child abuse, which resulted in Laken being temporarily placed in the custody of the Cabinet for Health and Family Services ("CHFS"). Further evidence indicated that Marsha then refused to sign a release permitting Laken to undergo counseling recommended by CHFS as a result of Marsha's complaint. Similarly, ample testimony was presented which evidenced that both parents care for Laken, want her to be involved in extracurricular activities, and want her to spend time with her friends and extended family.
It is clear that there was substantial evidence to support a finding in favor of either parent. The same judge has presided over the parties' various custody and timesharing disagreements since the commencement of the dissolution action and is well acquainted with each of them. In fact, the trial court verbally expressed great disdain over both parties' inability to effectively co-parent Laken and make decisions based solely on her best interests. Given the latitude with which the trial judge may weigh the evidence and evaluate the credibility of witnesses, Marsha has failed to show that the January 19, 2011, order was unsupported by the evidence.
While we agree that the written judgment of the trial court does not include language pertaining to the best interest of Laken, we are satisfied, after reviewing the hearing recording, that it was the main consideration in the trial court's determination. At the end of the trial court's hearing on the parties' motions for visitation modification, the trial court relays a lengthy explanation of what his order will be and why. He uses the term "best interest" no less than four times and states "I care a great deal about Laken." He also explains that he is interested in Laken being able to participate in as many activities as possible, visit as many places as possible, and spend time with as many friends and family members as possible. Given the verbal explanation that accompanied the trial court's judgment, we are satisfied that the "best interest" standard was followed.
For the foregoing reasons, the January 19, 2011 order of the Hickman Circuit Court is affirmed.
DIXON, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Bard K. Brian
Paducah, Kentucky
BRIEF FOR APPELLEE: Jim Paitsel
Fulton, Kentucky