Opinion
NO. 2012-CA-000898-ME
02-22-2013
SAMUEL J. J. JONES APPELLANT v. NANCY A. JONES APPELLEE
BRIEF FOR APPELLANT: Edmund V. Smith Oak Grove, Kentucky BRIEF FOR APPELLEE: Stephanie Flanary Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 09-CI-00664
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. VANMETER, JUDGE: Samuel J.J. Jones appeals from the Madison Family Court's findings of fact, conclusions of law, and order which dissolved his marriage to Nancy A. Jones, awarded joint custody of the parties' minor child, and designated Nancy as the primary residential parent. For the following reasons, we affirm.
Samuel and Nancy were married on June 5, 1999, and separated on July 15, 2007. One child was born of the marriage. Following a final hearing in the dissolution of marriage proceeding, in which the court heard testimony from Samuel, Nancy, Nancy's minister, and reviewed the recommendations of the guardian ad litem ("GAL"), the family court awarded joint custody to the parties and designated Nancy as the primary residential parent. This appeal followed.
On appeal, Samuel's sole argument is that the family court abused its discretion by designating Nancy as the primary residential parent of the parties' minor child. Specifically, Samuel argues the family court erred by basing its decision solely on his status as an active member in the United States Army who is subject to deployment outside the United States. We disagree.
CR 52.01 provides, in pertinent part, that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." This court will only reverse a family court's designation of a primary residential parent if it constitutes a manifest abuse of discretion, or is clearly erroneous in light of the facts and circumstances of the case. Caskey v. Caskey, 328 S.W.3d 220, 223 (Ky. App. 2010) (citation omitted).
Kentucky Rules of Civil Procedure.
Upon an award of joint custody pursuant to KRS 403.270, a court may also designate a primary residential parent. See Pennington v. Marcum, 266 S.W.3d 759, 764-65 (Ky. 2008) (explaining that custody refers to who has "responsibility for and authority over children" while the designation of a primary residential parent refers to "how much time each child spends with each parent"). When designating a primary residential parent, the family court is bound by the best interests of the child standard delineated in KRS 403.270. See Frances v. Frances, 266 S.W.3d 754, 759 (Ky. 2008) (holding that family court's designation of the father as primary residential parent was in the best interests of the child, and thus adhered to the mandate of KRS 403.270).
Kentucky Revised Statutes.
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KRS 403.270(2) provides that to determine the best interests of a child, the family court must consider all relevant factors, including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(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.
In the case before us, the family court properly considered all relevant factors supported by the evidence, including the amount of time the parties spent with the child, the child's adjustment to his community and school, the child's network of family support, the emotional and social well-being of the child, and the GAL's report which recommended that Nancy be designated as primary residential parent. Samuel suggests his military service and potential deployment were statements that were made by the family court judge during the final evidentiary hearing, such as being "curious as to how . . . [Samuel] overcomes the situation of his current employment[,]" and being "very curious as to how practically [Samuel] could act as primary residential parent considering his circumstances." But as Samuel concedes, a party's deployment is a factor to consider when designating the primary residential parent, though it cannot be the only factor considered. Koskela v. Koskela, 2012 WL 601218 *9 (Ky. App., Feb. 24, 2012). Though the statements cited by Samuel indicate the court took into consideration his military service and potential deployment, in the order, the family court noted that Samuel testified he would be separating from the army, and considered testimony regarding his efforts to spend time with the child when not deployed, as well as to communicate with the child during his past deployments. That being said, the record simply does not support Samuel's argument that the family court only considered his military service and deployment when designating the primary residential parent. Samuel does not allege any further evidence was not considered by the family court or that any errors were made in the factual findings. Therefore, we do not find the family court to have erred or abused its discretion.
The order of the Madison Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Edmund V. Smith
Oak Grove, Kentucky
BRIEF FOR APPELLEE: Stephanie Flanary
Richmond, Kentucky