Opinion
NO. 2012-CA-001689-ME
06-07-2013
CHELSEA (HUCKLEBERRY) LIGHT APPELLANT v. JOSEF HUCKLEBERRY APPELLEE
BRIEF FOR APPELLANT: Michael D. Ward Benton, Kentucky BRIEF FOR APPELLEE: Charles W. Brien Benton, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY JR., JUDGE
ACTION NO. 10-CI-00225
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND THOMPSON, JUDGES. MOORE, JUDGE: Chelsea Light (formerly Chelsea Huckleberry) appeals the orders of the family court denying her request to modify visitation to permit her to relocate with the parties' minor child to the Virginia/Washington D.C. area. After a thorough review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Chelsea and Josef Huckleberry divorced on January 11, 2011. The family court granted the parties joint custody of their minor child, with Chelsea being designated as the primary residential custodian. On June 20, 2012, Chelsea filed a motion with the family court seeking modification of the established visitation schedule in order to permit the child to relocate with Chelsea and her new husband, Kristofer Light, to the Virginia/Washington D.C. area, which is approximately seven hundred miles from Josef's current residence.
At the hearing, Kristofer testified that he was currently a member of the United States' Armed Forces and would complete his service in July 2012. He indicated that he had obtained highly specialized training while in the military, and that, despite having made every attempt to find work in his field of specialization within Kentucky, he had been unable to do so. However, jobs were available within Kristofer's area of expertise in the Virginia/Washington D.C. area, and he had been successful in obtaining an offer for a job there paying $52,000 annually. He indicated that his employment options within Kentucky were limited, that he had applied for the only local position available within his area of expertise, that he did not get that job, and that he would have to deliver pizzas if he and Chelsea stayed in Kentucky. Kristofer's co-worker, Eric Backlund, confirmed Kristofer's testimony regarding the unavailability of jobs within his area of expertise in Kentucky, but also conceded that Kristofer was very intelligent, could easily adapt to other vocations, and would be able to receive a free college education given his service in the military. Kristofer indicated that he did not believe that he was eligible to receive financial assistance for college, but had not investigated the possibility. He conceded that he could learn the skills necessary for a different career "if [he] ha[d] to."
Chelsea reported that she had quit her job to be a stay-at-home-mother and that she intended to stay at home until the child went to school. Therefore, Kristofer's salary would be their only source of income.
Kristofer and Chelsea admitted that they had never visited the area where they wished to move and that both Chelsea and the parties' child had resided in Kentucky their entire lives. When asked what their solution was for transporting the child for visitation with Josef if permitted to move, Kristofer indicated that either he or Chelsea would fly with the child to meet Josef. Or, alternatively, he and Chelsea could drive the child to Illinois for visitation and Josef could drive to Virginia to return the child. Kristofer indicated that the cost of round-trip airfare would be roughly $180 per person. He did not anticipate that the cost of transportation would be an issue and that they could "not eat out as much" in order to compensate for the expense and that he and Chelsea anticipated that Josef would assist with one-half of the travel expenses.
At the time of the hearing Chelsea was twenty-two years old, and the child was two years old.
Josef currently resides in Carbondale, Illinois. He initially moved to Illinois to live with his parents after the parties separated. He later obtained employment and relocated about forty-five minutes from his family and has since found a two-bedroom apartment in Carbondale. He has maintained regular visitation with the child, which includes visitation every other weekend, five weeks in the summer, and a week at Christmas.
Carbondale is approximately one hundred forty-four miles from Chelsea's current residence.
Josef testified that a stable environment for the child was very important and that the child's best interest would be served if he were appointed primary residential custodian. He indicated that he had retained a licensed babysitter and had strong familial support. Chelsea, however, contended that, although she had no issue with Josef's having regular visitation, she did not believe that it was in the child's best interest to reside with Josef on a full-time basis. Josef did concede that he had fed the child dinner as late as 7:30 or 8:00 p.m. and that he had put the child to bed as late as 10:00 p.m. He saw no issue with this so long as this was the schedule the child typically maintained.
It appears that Josef had given more extensive testimony regarding his parenting and relationship with the child at a prior hearing. The family court indicated that, for the sake of brevity in the current hearing, it would take the testimony at the prior hearing into consideration. The parties do not contest that it was established at the prior hearing that Josef is an excellent father.
The family court concluded that if Chelsea and Kristofer remained in Kentucky, no modification of the visitation schedule was necessary to serve the child's best interest. However, given the child's relationship with her father, the strong support system that the parties have locally, and the lack of support for the parties in the Virginia/Washington D.C. area, it was in the child's best interest to remain in the area. Therefore, the family court ordered that Josef be named primary residential custodian in the event that Chelsea and Kristofer relocated outside a one-hundred mile radius of Josef's current residence. The family court reasoned that relocation would impede regular visitation given the distance and the parties' limited incomes. Further, the family court noted that "Chelsea and her husband are young and appear to be intelligent and capable individuals who are not limited to employment opportunities in a field that requires specialized training and has very limited job opportunities" and that "Josef should not bear the loss of his daughter in order for Chelsea and her husband to have the financial luxury of a one wage earner home."
The family court also found Justice Cunningham's dissent in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), to be persuasive regarding the issue of permitting a primary residential parent to relocate and considered several factors delineated therein when making its determination regarding the child's best interest.
II. ANALYSIS
On appeal, Chelsea asserts that the family court incorrectly applied several factors found in the dissenting opinion of Pennington v. Marcum, in lieu of applying the best interest of the child standard described in KRS 403.320(3), which is applicable to determinations regarding modification of visitation.
Kentucky Revised Statutes.
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Although the family court cited to a lengthy portion of the Pennington dissent and appears to have considered some of the factors enumerated therein, it did not use these as the prevailing standard for its decision. Rather, it appears that the family court merely found these considerations to be "persuasive" when making a best interest determination, and Chelsea cites no authority that would prohibit the family court from doing so. Moreover, the family court clearly made a finding that relocation to the Virginia/Washington D.C. area was not in the child's best interest. Accordingly, Chelsea's assertion that the family court applied the incorrect standard when making its determination is unfounded.
Chelsea also argues that the family court's findings are unsupported by substantial evidence and that the family court afforded "very little or no weight or consideration to the positive aspects associated with the proposed relocation."
"[T]his Court will only reverse a [family] court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000) (citing Wilhem v. Wilhem, 504 S.W.2d 699, 700 (Ky. 1974), overruled on other grounds).
The Court of Appeals ... [is] entitled to set aside the [family] court's findings only if those findings are clearly erroneous. And, the dispositive question that we must answer, therefore, is whether the [family] court's findings of fact are clearly erroneous, i.e., whether or not those findings are supported by substantial evidence. Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men. Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached aMoore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003) (internal footnotes and quotation marks omitted).
contrary finding, due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, mere doubt as to the correctness of a finding will not justify its reversal, and appellate courts should not disturb [family] court findings that are supported by substantial evidence.
In this case, the evidence of record clearly reflects that the child had a close relationship with both parties; the parties had an extensive support system where they currently reside, whereas Chelsea and Kristofer had no support system in the Virginia/Washington D.C. area; transportation for visitation would be time-consuming and costly to both parties; the expense of transportation would be a considerable burden in light of Josef's limited income, making regular visitation unlikely; and that Kristofer and Chelsea have other options available to them that would not have such limited job opportunities. Therefore, we cannot conclude that the family court's decision was unsupported by substantial evidence.
Furthermore, despite Chelsea's contention regarding the weight assigned to the evidence, we are without authority to substitute our judgment for that of the family court. Id. Rather, the family court is in the best position to assess credibility and weigh the evidence. Id. Accordingly, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Michael D. Ward
Benton, Kentucky
BRIEF FOR APPELLEE: Charles W. Brien
Benton, Kentucky