Opinion
NO. 2015-CA-001243-ME
04-01-2016
CANDICE LEWIS (NOW STEELE) APPELLANT v. TYLER LEWIS APPELLEE
BRIEFS FOR APPELLANT: Tracy D. Frye Russell, Kentucky BRIEF FOR APPELLEE: Sharon E. Rowsey Ashland, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 15-CI-00119 OPINION
AFFIRMING IN PART, VACATING AND REMANDING IN PART, AND REVERSING AND REMANDING IN PART
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BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Candice Steele appeals the April 27, 2015 order of the Boyd Circuit Court setting aside the settlement agreement between Candice and her former husband, Tyler Lewis, and also appeals the July 21, 2015 order of the Boyd Circuit Court adopting the report and recommendations of the Domestic Relations Commissioner (DRC).
The issue regarding the former order is whether the settlement agreement can be set aside without findings of fact. The issue regarding the latter order is whether the DRC's recommendations interfere with the parties' fundamental rights as custodial parents to make child-rearing decisions and, therefore, whether the circuit court abused its discretion in adopting the report.
After careful review, we vacate the order setting aside the settlement agreement and remand for further proceedings. We also reverse that part of the latter order which prohibits the parties' child from sleeping with Candice and which compels the child's enrollment in preschool.
I. Factual and Procedural Background
Candice Steele and Tyler Lewis were married on October 10, 2010. One child was born of the marriage on June 10, 2011. According to Candice, the parties separated in November 2014; Tyler maintains that he and Candice did not separate until March 2015.
Candice had her attorney draft a settlement agreement resolving the issues involved in the dissolution of their marriage. After the settlement agreement was signed by both Candice and Tyler, Candice filed a petition for dissolution of marriage on February 20, 2015. That same day, the parties tendered an agreed order with the circuit court waiving the filing of formal financial disclosures and waiving a final hearing on the case. The order was entered on February 24, 2015.
On April 10, 2015, Tyler filed a response to the petition for dissolution as well as a motion to set aside the settlement agreement, waiver of notice, and consent to entry of decree. Candice filed a response objecting to Tyler's motion to set aside the agreement. The parties presented conflicting accounts of the circumstances surrounding the execution of the agreement.
Shortly thereafter, the circuit court sustained Tyler's motion to set aside the agreement and referred the matter to the Domestic Relations Commissioner (DRC) for a hearing. Candice filed a motion to alter, amend, or vacate the circuit court's order and requested a hearing on the validity of the settlement agreement. The circuit court overruled Candice's motion stating that "the Settlement Agreement entered into between the parties had not yet been ratified by the Court. As such, the Court is within its discretion to Order the matter litigated before the Commissioner." (R. 43).
A hearing was held before the DRC on June 4, 2015. Candice and Tyler both testified. The DRC also heard testimony from Candice's sister and mother as well as Tyler's parents.
Candice testified that she has been the primary care giver for their child since the child's birth. Candice testified that she works as a teacher in the Fairview Independent School system. While she is at work, the child stays with Candice's father. Candice testified that she had enrolled the child in preschool in March 2015, but the child only went a few times. Candice stated the child was uncomfortable with preschool and she did not make her go back. Candice told the court that she rents a residence, but also spends the night at her parents' house usually once a week. She also testified that sometimes the child sleeps with her in the same bed. Candice further testified that she was still currently breastfeeding the child, who at the time of the hearing was just shy of her fourth birthday, and intended to continue to do so until the child wanted to stop. She stated that she nurses the child twice a day, when she gets home from work and before bed time at night.
Candice requested that she be awarded sole custody of the child and Tyler awarded supervised visitation. To support her request, she said she witnessed Tyler regularly smoking marijuana and was concerned about his ability to care for the child; he had not been interested or involved in being a parent to that point. Candice also was concerned about Tyler's anger issues; she had observed several aggressive outbursts. Candice's sister and mother both testified that they had concerns about Tyler's ability to care for the child. Candice's sister also stated that she had never seen Tyler use marijuana, but had smelled it in the parties' home.
Tyler testified that he is employed at River Cities Courier. He stated that he works in the evenings, so he would be able to take care of the child during the day. Tyler admitted he smoked marijuana consistently a few times per week for the previous six years. At the hearing in June 2015, he stated he had not smoked marijuana since January that same year. Both parties submitted to random drug screens with negative results. Tyler testified he has not been given the opportunity to parent the child. He testified he has prepared food for the child and changed her diaper when he was permitted to do so. He acknowledged that he had kicked one of the child's toys out of anger, but stated that the child was not in the room.
Both of Tyler's parents testified that they had seen Tyler and the child interact and stated they did not have any concerns about his ability to care for his child. They also both testified that they were aware he used marijuana in the past. After all of the testimony, the matter was submitted to the DRC.
The DRC issued a report with numerous findings based on the testimony at the hearing. The following recommendations are relevant to this appeal. The DRC recommended the parties have joint custody of their child. Tyler was to be awarded parenting time no less than the Boyd County Timesharing Guidelines. Tyler's parenting time was not to be abbreviated due to Candice breastfeeding the child. The parties were further to enroll the child in preschool and to ensure her regular attendance. The recommendations included the requirement that Tyler care for the child on days the child is sick and unable to attend preschool. The DRC also recommended that Candice ensure that the child sleep in her own bed except for extraordinary reasons and encouraged both parents to allow the child to participate in age appropriate activities with other children.
While maintaining her objection to the court's setting aside of the settlement agreement, Candice filed exceptions to the report with regard to the many of the DRC's recommendations, including each of those outlined above. As grounds, she claimed several of the provisions violated her fundamental right to parent her child. Candice further requested that Tyler be required to submit to regular drug screens because he admitted that he had often smoked marijuana for the past six years. The Boyd Circuit Court overruled Candice's exceptions to the DRC's report in an order entered July 21, 2015. On that same day, the circuit court entered a separate order adopting and confirming the DRC's report as an order of the court. This appeal followed.
II. Standard of Review
This Court's standard of review for child custody determinations is whether the circuit court's findings are supported by substantial evidence and whether the ultimate decision regarding custody constitutes an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974). "Substantial evidence is evidence sufficient to induce conviction in the mind of a reasonable person." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The circuit court has broad discretion in evaluating what is in the best interest of the child within the factors listed in Kentucky Revised Statute (KRS) 403.270(2), but it must not abuse that discretion in applying the law. Frances v. Frances, 266 S.W.3d 754, 757 (Ky. 2008). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
III. Analysis
Candice presents two arguments on appeal. First, she contends the circuit court erred by failing to conduct a hearing prior to setting aside the parties' settlement agreement. In that agreement, Candice was awarded sole custody of the parties' child. In the event this Court finds no error in setting aside the settlement agreement, Candice argues alternatively that the circuit court abused its discretion in adopting the DRC's report, and she specifically takes issue with the joint custody determination.
Tyler's motion to set aside the settlement agreement was based on allegations of fraud, that Candice obtained his signature without his reading it by leading him to believe reconciliation was possible. Candice then took the signed agreement to her mother to be notarized. Candice denied these allegations.
Without a hearing and without providing the basis on which the circuit court made its decision, the court sustained Tyler's motion and set aside the settlement agreement. Candice then requested that the circuit court alter, amend or vacate its order setting aside the agreement and hold a hearing on the matter. The court denied her motion, and the matter was referred to the DRC. Candice now asks this Court to remand the matter for a hearing on the validity of the settlement agreement.
Although parties are encouraged to resolve dissolution actions through settlement agreements, such agreements are still subject to judicial scrutiny. See Shraberg v. Shraberg, 939 S.W.3d 330, 333 (Ky. 1997). A trial court is directed to review settlement agreements for unconscionability. KRS 403.180(2). If the settlement agreement is "manifestly unfair and unreasonable" it must be set aside as unconscionable. Shraberg, 939 S.W.3d at 333 (citing McGowan v. McGowan, 663 S.W.2d 219, 222 (Ky. App. 1983)). "[A]n agreement can also be set aside if it results from fraud, undue influence, or overreaching." McGowan, 663 S.W.2d at 222. Such determinations are fact-intensive and the trial court is in the best position to evaluate and analyze the circumstances surrounding execution of the agreement at issue. Shraberg, 939 S.W.3d at 333 (citing Peterson v. Peterson, 583 S.W.2d 707, 712 (Ky. App. 1979)). Here, the circuit court issued an order that did not articulate factual findings supporting the grant of the motion. This is problematic because this Court cannot properly review a decision without being told the factual basis supporting it, nor can this Court "weigh the evidence and decide factual matters de novo[.]" Transportation Cabinet v. Caudill, 278 S.W.3d 643, 648 (Ky. App. 2009). Reversal and remand is necessary to allow the circuit court to express those facts. See also McKinney v. McKinney, 257 S.W.3d 130, 134 (Ky. App. 2008) ("Without adequate factual findings, we are unable to meaningfully review the trial court's decision.").
However, it was not necessary that the circuit court set aside the settlement agreement before proceeding to address custody issues. That is to say, the circuit court need not establish the fact-based reason for disregarding the settlement agreement's custody provision because there is a purely legal reason for doing so. KRS 403.180(2) "makes it clear that while the parties are free to enter into a separation agreement to promote settlement of the divorce, the court still retains control over child custody, support, and visitation and is not bound by the parties' agreement in those areas." Tilley v. Tilley, 947 S.W.2d 63, 65 (Ky. App. 1997).
In this appeal, the only provision of the settlement agreement Candice wants us to compel the circuit court to enforce is the provision awarding her sole custody - a provision the circuit court is empowered to disregard. Therefore, we now turn to Candice's argument concerning the circuit court's adoption of the DRC's report and recommendation to award custody of the child jointly to Candice and Tyler.
As in any action tried without a jury, the circuit court is in the best position to evaluate the testimony and weigh the evidence. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). When determining custody, it must evaluate and weigh evidence in accordance with the "best interest" factors listed in KRS 403.270(2), including: the wishes of the parents and the child; the interaction of the child with the parents; the child's adjustment to home, school and community; and the mental and emotional states of the proposed custodians. KRS 403.270(2). Based on the testimony presented at the hearing, the DRC determined that a joint custody arrangement was in the best interest of the child. The DRC also designated Candice as the "residential parent for school purposes only." The circuit court adopted those recommendations.
Although Candice asserts that the circuit court never explained what it meant by the phrase "for school purposes only," we choose to follow Fenwick which said: "designating a party as the primary residential custodian . . . may also carry with it additional legal significance, e.g., . . . residency for school purposes[.]" Fenwick, 114 S.W.3d at 779 (citing statutes relating to mandatory public school attendance, KRS 158.030, 158.120(1), and KRS 159.010).
Candice claims that doing so was an abuse of discretion because the circuit court simply "defaulted" to a joint custody order, disregarding the fact that Candice has always been the child's primary caregiver. She also claims that the joint custody order reflected the DRC's and circuit court's "dislike for [Candice's] decisions on certain hot-button parenting issues[.]" We do not agree.
After examining the record, we are unpersuaded by the argument. The record reflects that the DRC, and circuit court by incorporation of the DRC's recommendations, properly considered the appropriate factors and applied them in the context of Squires v. Squires, 854 S.W.2d 765, 768 (Ky. 1993) (although courts would prefer that "a cooperative spirit [between the parents] prevails, we do not regard it as a condition precedent"). True, there was contention between the parties. However, the DRC and circuit court did:
look beyond the present and assess the likelihood of future cooperation between the parents. It would be shortsighted to conclude that because parties are antagonistic at the time of their divorce, such antagonism will continue indefinitely. Emotional maturity would appear to be a dependable guide in predicting future behavior. By cooperation we mean willingness to rationally participate in decisions affecting the upbringing of the child. It should not be overlooked that to achieve such cooperation, the trial court may assist the parties by means of its contempt power and its power to modify custody in the event of a bad faith refusal of cooperation. Benassi v. Havens, Ky.App., 710 S.W.2d 867 (1986); Erdman v. Clements, Ky.App., 780 S.W.2d 635 (1989).Id. at 769. Significantly, Candice herself testified that she could cooperate with Tyler in making joint decisions regarding their child. We see no basis for disturbing the award of joint custody.
We pause here to note, however, that "equal decision-making power is not required for joint custody, and parties or trial courts are free to vest greater authority in one parent even under a joint custody arrangement." Fenwick v. Fenwick, 114 S.W.3d 767, 776 (Ky. 2003), as modified (Oct. 8, 2003) superseded by statute on other grounds as stated in Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky. App. 2004), overruled on other grounds by Frances v. Frances, 266 S.W.3d 754, 756-57 (Ky. 2008), and Pennington v. Marcum, 266 S.W.3d 759, 768 (Ky. 2008). The court in this case did not exercise its authority to vest either Candice or Tyler with greater authority than the other regarding any issue.
Of course, the mere award of joint custody with equal decision-making authority does not guarantee harmony in the parental decision-making process. According to the circuit court's assessment, Candice and Tyler now have opposing views on three issues relating to the child: (1) whether the child, at age four, should still be breastfeeding; (2) whether the child should be sleeping with Candice; and (3) whether the child should be enrolled in preschool. The DRC resolved the dispute. Presuming the joint custodians were at an impasse regarding these issues, the DRC made recommendations how to resolve them.
Parents share equal decision-making authority beginning with the birth of the child. KRS 405.020(1) ("The father and mother shall have the joint custody, nurture, and education of their children who are under the age of eighteen (18)."). That status prevails among divorcing parents until a court enters an order pursuant to KRS 403.270, et seq. --------
The DRC recommended, and the circuit court agreed, that breast-feeding should not interfere with Tyler's visitation, that the child should sleep in her own bed except under extraordinary circumstances, and that the child should be enrolled in preschool.
Candice argues that the order on these three issues violates her right under the 14th Amendment to the United States Constitution to parent her child as she deems appropriate. We agree that the United States Supreme Court "recognized that parents have a constitutionally protected liberty interest in rearing their children without government interference." Walker v. Blair, 382 S.W.3d 862, 866 (Ky. 2012). But that is not the issue here. Here, we have two fit parents, with equal rights and responsibilities to raise this child, at odds over three specific issues. The circuit court, with those issues squarely before it, rendered decisions in all three. Such action did not constitute government interference. Rather, it was the exercise of authority statutorily conferred upon a constitutional court, carrying out a judicial responsibility within its jurisdiction. To the extent Tyler advocated for these rulings, they were consistent with his constitutional right to parent the child. Candice's direct constitutional attack on the order fails.
And yet, because of that constitutional right to parent, the statutes authorizing our courts' involvement in allocating parental rights set high bars for adherence. For example, before allowing a court to interfere with a constitutional right to parent, some statutes require a finding of serious endangerment to the child's physical, mental, moral or emotional health. See, e.g., KRS 403.320(1); KRS 403.330(1). Others require a higher standard of proof before a non-parent is allowed to insinuate himself in the custodial debate. See, e.g., KRS 403.280(4). Because we hold the constitutional right to parent so dear, we require expeditious decisions on custody issues. See, e.g., KRS 403.310(1).
We say this as a prelude to consideration of Candice's other arguments regarding the three specific decisions listed above. We address them, and her arguments separately.
The first issue was breastfeeding. Candice argues that the proven health benefits of breastfeeding are paramount and justify continuing to breastfeed the child. However, the health of the child was not an issue. The child is four years old and consuming solid food. More significantly, the court did not order her to cease breastfeeding. Rather, it ordered that she accomplish breastfeeding on a schedule that would not interfere with Tyler's time-sharing. Under these circumstances, limiting Tyler's time-sharing to allow Candice to breastfeed a child who is nearly five years old would be a more intrusive incursion into Tyler's right to parent. We see no error in this ruling.
Next, Candice claims there was "absolutely no evidence" and no rational grounds to support the DRC's recommendation prohibiting the child from sleeping with her except in extraordinary circumstances. We find merit in this argument.
First, we note that the Supreme Court in Fenwick recognized the distinction between major and minor decisions that joint custodians must make in raising a child. On the one hand, "both parents have equal rights and responsibilities for major decisions concerning their child including, but not limited to, education, health care, and religious training, and the parents will consult with each other on these major decisions." Fenwick, 114 S.W.3d at 778. On the other hand, "minor day-to-day decisions concerning the child will, as a matter of necessity, be made by the parent with whom the child is residing at the time." Id. We conclude that where the child sleeps when with one joint custodian or the other is not a major decision, but a minor one. We further conclude that the circuit court must not interfere with such minor decisions in the absence of a finding, after a hearing, that the decision made by the parent where the child is residing at the time will endanger the child's physical health or significantly impair the child's emotional development. See KRS 403.330(1). That was not done here.
Looking at the record, we see that there was some lay testimony that Candice was insecure and that sleeping with the child benefitted her more than the child. There was also a finding that Candice is overprotective. However, there was no expert testimony, or even lay testimony, supporting a finding that failing to prohibit the child from sleeping with Candice would endanger the child's physical health or significantly impair the child's emotional development. Absent such proof, the circuit court abused its discretion in ruling on this minor decision and we must reverse.
Finally, on the DRC's recommendation, the circuit court decided that the child should be required to attend preschool. First, we are hard-pressed to find a controversy between the joint custodians on this point. Tyler now claims in his brief that "[h]e was left with the only option of asking the Court to order the child be enrolled" in preschool, but there is no citation to the record and our examination of the record discovered no such request. We do not see that this was ever a concrete point of dispute. True, Tyler was upset that, without consulting him, Candice enrolled the child in preschool and then withdrew her after three days. But that is not the same as one joint custodian's insistence before the circuit court that the child be enrolled in preschool against the will of the other joint custodian. Candice has not made this argument. Therefore, we will presume the controversy existed and move on to consider whether the circuit court's resolution of the issue can withstand appellate review.
In early 2009, in an unpublished opinion, this Court addressed as a matter of first impression whether "trial courts have the inherent ability to 'break the tie' when joint custodians cannot agree on how to educate their minor children[.]" Ryan v. Ryan, 2008-CA-000858-MR, 2009 WL 1098330, at *5 (Ky. App. Apr. 24, 2009). We concluded that they do. Subsequently, in the published opinion of Young v. Holmes, we addressed an appeal wherein:
joint custodians could not agree on a major issue concerning the education of the child. Their failure to agree ultimately resulted in their abdication of such a decision to the trial court. After conducting a hearing on the issue, the trial court made a determination based upon the best interest of the child. There was substantial evidence to support the trial court's decision . . . .295 S.W.3d 144, 147 (Ky. App. 2009). This Court affirmed the judgment of the trial court, resolving the impasse between joint custodians possessed of equal decision-making authority regarding a major decision. The trial court's "tie-breaking" decision that the child attend a parochial school was based on substantial evidence that such attendance was in the best interest of the child.
Candice argues that "[t]here is a complete absence of evidence in the record that would support a finding that [the child's] best interests were being harmed" by not enrolling her in preschool. We agree.
Tyler states without citation to the record that the DRC "heard the effects on the child of being prevented from attending a preschool program or participat[ing] in any activities to foster her ability to associate with other children." We could find no testimony to that effect and are cited to none.
All that appears to support a finding that attending preschool is in the child's best interest is the following statement from the DRC's recommendations: "Of concern to the [DRC] is the fact that the parties' child has not been given the opportunity to spend time much with other children, outside the presence of the Petitioner." We have been cited to no testimony or other evidence that indicates cause for that concern. We cannot find evidence in the record of the child's dissociative behavior. Nor can we find that Tyler's concern for such behavior was the reason he demanded the child be sent to preschool. If it was, he failed to support it with proof.
We have presumed an impasse between joint custodians on the major issue of education and follow precedent that the circuit court can resolve that impasse based on the best interests of the child. In this case, however, we have been directed to no evidence supporting that the child's enrollment and attendance in preschool is in the child's best interest. Therefore, we must reverse that portion of the circuit court's order.
Candice also challenges the circuit court's order that if the child should be sick and need to stay home instead of attending preschool, Tyler would take care of her. Because we have reversed the decision regarding preschool, this provision must also be reversed.
Finally, Candice argues that the circuit court should have required regular drug testing for Tyler. Both parties passed drug screenings at one point in this matter. Whether future circumstances would justify any drug testing is a matter for within the circuit court's discretion at that time. However, it was not an abuse of discretion for the circuit court to deny Candice's demand that Tyler be subjected to regular drug testing.
IV. Conclusion
For the foregoing reasons, we vacate the April 27, 2015 order of the Boyd Circuit Court sustaining the Motion to Set Aside the Settlement Agreement and remand the matter for proceedings consistent with this opinion.
Additionally, we reverse the July 21, 2015 order of the Boyd Circuit Court adopting and confirming the July 1, 2015 Report and Recommendation of the Domestic Relations Commissioner to the extent that such order adopts and confirms paragraphs 4 and 5 of that Report and Recommendation. The remainder of the circuit court's order is affirmed.
J. LAMBERT, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: I respectfully dissent. I would affirm the trial court in all respects.
I disagree with the majority that the court could not restrict Candice from sleeping with the parties' child or order Candice to enroll the child in preschool without a finding that the child's psychological health is endangered or the child's emotional development will be significantly impaired. The statutes cited for authority, Kentucky Revised Statutes (KRS) 403.320(1) and KRS 403.330(1) have no application to the issues involved in this joint custody situation. When there is a conflict between joint custodians regarding day-to-day parenting decisions, the court must resolve the issues based on the child's best interest.
I also differ that expert testimony was required regarding whether the child's sleeping arrangement and lack of socialization was detrimental. First, the facts cannot be considered in isolation. There were a multitude of facts that led the DRC to conclude Candice's parenting behavior should be modified to make the joint custody arrangement workable. There was evidence that she sought to keep the child not only from Tyler, but also family members and adults and other children. In addition to continuing to breastfeed her four-year-old child, there was evidence that Candice encouraged the child to sleep with her indicating a co-dependency relationship. Additionally, although she enrolled the child in preschool, Candice abruptly removed her after only three days. Similarly, any activities without Candice present were discontinued. The portions of the order pertaining to the child's sleeping arrangements and preschool attendance were based on the DRC's observations of the parties and testimony and its conclusion that both provisions would not only further the child's best interest but the joint custody situation.
Second, an "expert" on co-sleeping, breastfeeding beyond infancy or the educational and socialization needs of a four-year-old child would not help the court resolve the issues between the parties. The competing opinions of experts would do nothing more than add time and expense to the litigation between joint custodians. A judge is readily capable of assessing the facts and making a decision regarding such day-to-day parenting issues without an expert opinion.
I would affirm. BRIEFS FOR APPELLANT: Tracy D. Frye
Russell, Kentucky BRIEF FOR APPELLEE: Sharon E. Rowsey
Ashland, Kentucky