Opinion
NO. 2012-CA-001322-ME
04-26-2013
BRITTANY NICOLE HOOVER APPELLANT v. NICHOLAS J. CURTSINGER APPELLEE
BRIEF FOR APPELLANT: Dennis L. Null, Jr. Mayfield, Kentucky BRIEF FOR APPELLEE: John T. Reed Paducah, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 12-J-00013
OPINION
VACATING AND REMANDING
BEFORE: CAPERTON, COMBS, AND KELLER, JUDGES. COMBS, JUDGE: Brittany Hoover appeals the order of the McCracken Family Court awarding to her and to Nicholas Curtsinger joint custody of their minor daughter and designating Nicholas as the primary residential custodian. After our review, we vacate and remand.
Judge Keller concurred in result only and filed separate opinion in this appeal prior to her appointment to the Kentucky Supreme Court. Release of the opinion was delayed by administrative handling.
Brittany and Nicholas were never in a relationship, but they are the parents of a child who was born on October 18, 2011. Paternity was confirmed by a DNA test soon after the birth. On January 23, 2012, Nicholas filed a petition to establish legal paternity and to obtain joint custody and reasonable parenting time.
A hearing was held on July 2, 2012. There was considerable testimony that both Nicholas and Brittany love their daughter very much and that they are good parents. Brittany testified that she dropped out of college prior to her pregnancy. At the time of the hearing, she was working part-time, living in subsidized housing, and receiving other assistance. Nicholas had graduated from college and was employed full time. Brittany testified that she believed she should be designated as the child's primary residential custodian because she is the mother. Nicholas believed that he would be the better primary residential custodian because he had concerns about Brittany's boyfriend, who has an extensive criminal record.
On July 3, 2012, the trial court entered its order with its findings of fact. It awarded joint custody to both parties and designated Nicholas as the primary residential custodian. This appeal by Brittany follows.
Brittany does not contest the award of joint custody, but she contends that the trial court did not properly apply the law in designating Nicholas as the primary residential custodian.
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 fact should not be reversed unless they were clearly erroneous. Clear error occurs only when there is no 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).
Kentucky Revised Statute[s] (KRS) 403.270(2) requires the courts to make custody determinations based on the best interests of the child. It directs the court to consider "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;In this case, few of these factors are relevant. At the time of the hearing, the child was less than nine months of age. Therefore, she could not express her wishes, and there were no issues raised regarding her adjustment to either parent's home. No allegations of physical or mental health issues that would impair either parent's ability to care for the child were raised; the child was healthy. Neither party introduced any evidence or claims of domestic violence, and no de facto custodian was involved.
(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 place 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 trial court designated Nicholas as the primary custodial based on this finding:
The Court has heard nothing negative about the father, either as a person or as to his ability to parent his daughter. . . . The court makes specific findings which are harmful to the mother's case. First, the mother has not done anything to improve her station in life. She has been content to receive assistance in the form of rent subsidies and other governmental programs instead of working full-time or going to school and working part-time. The mother chose to quit school even before she was pregnant. Most troubling to the Court, the mother admits that she separated from a man who appears to be of a disreputable character because it would look better to the Court. She acknowledges that the man has stayed at times in her apartment with her, and that she continues to have a relationship with him.The court appears to have based its decision on what it considers to be misconduct of the mother. The General Assembly has contemplated such a contingency and has directly addressed it as follows: "The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child." KRS 403.270(3).
Our Supreme Court has confronted the issue of parental misconduct and concluded that:
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 the case before us, the trial court's findings do not explain how Brittany's association with her boyfriend had adversely affected the best interest of the child - or how it might do so. The Supreme Court has recently required in adamant tone that the reasoning underlying a trial court's findings and conclusions be expressed in its written findings. Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011).
At the conclusion of the evidentiary hearing, the trial judge explicitly stated comprehensive findings, albeit orally instead of in writing, which indicated clearly that she was basing her decision on what she determined from the evidence to be in the children's best interest. She referenced facts pertinent to the applicable factors set forth in KRS 403.270(2). But for the use of a deficient and wholly inadequate written order, the judge complied with her duty to make findings of fact, at least in substance if not in form. As emphasized above, the trial judge's duty is not satisfied until the findings have been reduced to writing. (Emphasis added.)Id. at 126. We have reviewed the record in this case closely and find it to be parallel to the factual scenario of Keifer. The trial court spoke at length, explaining the logic behind her findings and why she believed that Brittany's conduct is not in the child's best interest.
We are persuaded that the court's reasoning as verbally expressed is supported by the record; i.e., there is substantial evidence. We are also satisfied that the court properly complied with the King holding that the alleged misconduct must be analyzed in terms of its potentially adverse effect or the best interest of the child. However, the court's findings are not set forth in detail in the written order as Keifer unequivocally requires. Therefore, we are compelled to vacate this matter and remand it to the McCracken Family Court for entry of complete written findings in conformity with Keifer.
CAPERTON, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.
KELLER, JUDGE, CONCURRING IN RESULT: I concur with the majority that this matter should be vacated and remanded for entry of complete written findings in conformity with Keifer. Furthermore, I agree that the court's reasoning as verbally expressed is supported by the record. However, the court's reasoning is based on evidence not relevant to the determination of whether Brittany's conduct adversely affected the best interest of the child. Therefore, I do not believe the court's reasoning is supported by evidence of substance. Moreover, I believe that the trial judge's questioning of Brittany came close to crossing the line that separates an impartial arbiter from advocate. Therefore, I concur in result only. BRIEF FOR APPELLANT: Dennis L. Null, Jr.
Mayfield, Kentucky
BRIEF FOR APPELLEE: John T. Reed
Paducah, Kentucky