Opinion
NO. 2010-CA-001332-ME
07-11-2014
DENA SUE GREER MASTERS APPELLANT v. SHANE THOMAS MASTERS APPELLEE
BRIEFS FOR APPELLANT: Rebecca Novak Ashman Lexington, Kentucky BRIEF FOR APPELLEE: Crystal L. Osborne Lexington, Kentucky
NOT TO BE PUBLISHED ON REMAND FROM KENTUCKY SUPREME COURT
CASE NO. 2012-SC-000420-DGE
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE BRUCE PETRIE, SPECIAL JUDGE
ACTION NO. 04-CI-00960
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON AND MAZE, JUDGES. DIXON, JUDGE: On remand to this Court from the Kentucky Supreme Court, this matter concerns a modification of custody granted by the Madison Circuit Court. After reviewing the record and applicable law, we affirm the family court's decision.
Dena and Shane Masters were married on December 17, 1994. One child was born during the marriage, a son named Alek who was born on June 21, 2003. The parties separated in August 2004, and a decree of dissolution of marriage was entered on August 12, 2005. Pursuant to a prior agreement incorporated into the decree, the parties were awarded joint custody with Dena designated as the primary residential parent.
Between 2005 and 2007, Shane filed numerous motions seeking additional timesharing and/or alleging contempt for Dena's failure to abide by the court's orders. Eventually, in May 2007, twenty-five months after the initial April 2005 custody order, but only twenty-two months after entry of the final judgment awarding custody, Shane filed a motion seeking sole custody of Alek. In his accompanying affidavit, Shane claimed that Alek was at risk for serious mental and emotional endangerment as a result of Dena's "obsessive and controlling behavior and failure to abide by court orders." The family court granted a hearing on the modification motion and ordered a custody evaluation.
However, on May 5, 2009, Shane filed a verified ex parte emergency motion for temporary custody alleging parental alienation, coercion, and false reporting of abuse to CHFS. Following a hearing on May 11, 2009, the family court granted Shane temporary sole custody, concluding:
The Court finds that the testimony has established by a preponderance of the evidence that the child's mother . . . has embarked upon a course to totally destroy the relationship that this child might enjoy with his father.Due to Dena's "bizarre" behavior, the family court further ordered that all contact between her and Alek be supervised, that Alek begin counseling, and that Dena undergo a psychological evaluation. Additionally, Alek was appointed a guardian ad litem.
The well-documented behaviors reviewed by the Cabinet and Dr. Ebben, a Qualified Mental Health Care Professional, have led each to conclude that the emotional manipulation of the child by the mother is abusive and should cease immediately. The Court also finds no basis in fact to determine that the father has abused this child in any way.
In making this modification in temporary custody, the Court is painfully aware of the damage to the child in uprooting him from his current environment. However, the Court finds that the benefit of placing him in an environment where he will not be continually subjected to the emotional abuse and manipulation perpetrated upon him by the mother far outweighs this harm. Unfortunately, the Court can think of no other way to begin to undo the damage that has already been done to the child by the continuous brainwashing occurring in the mother's home.
A final custody hearing was held on December 11, 2009, during which the family court heard extensive evidence including live testimony from numerous witnesses as well as deposition testimony of over 21 witnesses. The trial court issued a final ruling on May 14, 2010, awarding sole custody to Shane.
Dena thereafter appealed to this Court arguing that the family court's findings were erroneous and that it failed to find that Alek's environment "endanger[ed] seriously his physical, mental, moral or emotional health[,]" as required by KRS 403.340(2) for a change of custody. However, in an unpublished opinion rendered on July 1, 2011, we concluded that based upon the Kentucky Supreme Court's decision in Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999), the family court lacked jurisdiction to entertain Shane's motion for a modification of custody because it was not accompanied by two affidavits.
In Petrey, the Court held that when "[r]ead together, [KRS 403.350 and KRS 403.340(2)] require that a motion to modify a prior custody decree must be accompanied by at least one affidavit; and if the motion is made earlier than two years after its date, it must be accompanied by at least two affidavits. If the applicable requirement is not met, the circuit court is without authority to entertain the motion." (Internal citations omitted.) Because Shane's motion, which was made within two years of the prior custody decree, was only supported by one affidavit, we held that the family court erred in ruling on the motion. Further, we determined that such was true even if the error was not preserved for review. See Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky. 2001).
At the time the Petrey decision was rendered, KRS 403.340(2) was numbered as KRS 403.340(1). The statute was amended in 2001 and renumbered accordingly.
Apparently, Shane's motion also contained an exhibit consisting of numerous letters, each signed and subscribed to by a notary public, although containing no jurat of the notary public expressly certifying the identity of the signor and attesting that the signature was under oath, or had otherwise been sworn. However, the letters were unknowingly omitted from the record supplied to this Court and we were not aware of their existence at the time our opinion was rendered.
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Subsequently, our Supreme Court granted Shane's motion for discretionary review "to re-examine the holding in Petrey regarding subject matter jurisdiction in light of [its] decision in Daugherty v. Telek, 366 S.W.3d 463 (Ky. 2012)." In December 2013, the Court rendered a published opinion reversing the opinion of this Court. Masters v. Masters, 415 S.W.3d 621, 624 (Ky. 2012). Quoting language from Daugherty, the Court held:
Masters 415 S.W.3d at 624. The Supreme Court additionally held that because Dena did not challenge Shane's motion in the family court as being in violation of the affidavit requirement contained in KRS 403.340(2), she acquiesced in the hearing of the motion and cannot assert that same violation as grounds for reversal of the family court's ruling on appeal. Therefore, on remand, we are limited to the issues set forth in Dena's original brief in this Court."[S]ubject matter jurisdiction does not mean 'this case' but 'this kind of case.' " . . . [Accordingly,] [t]he court has subject matter jurisdiction when the "kind of case" identified in the pleadings is one which the court has been empowered, by statute or constitutional provision, to adjudicate. . . .[Daugherty] at 466-67 (citations and footnotes omitted).
"Once a court has acquired subject matter and personal jurisdiction, challenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction." . . .
Similarly, in this case, because the family court has by statute been granted jurisdiction over "this kind of case," an error with respect to KRS 403.340 does not divest it of subject matter jurisdiction. Instead, the failure to comply with the statute simply gives the aggrieved party the opportunity for relief based upon the court's improper exercise of its judicial power.
Accordingly, we overrule Petrey to the extent that it holds that a circuit court or a family court lacks subject matter jurisdiction over a motion to modify child custody simply because the motion is not compliant with KRS 403.340's requirement for more than one affidavit. And so, while it may be argued that Shane's motion, filed within two years of the final custody order, lacked the requisite number of affidavits, it cannot be said that the Madison Family Court lacked subject matter jurisdiction over the controversy. Indeed, a possible error only renders the family court's decision voidable, not void ab initio. (Citations omitted.)
Dena argues in this Court that the family court abused its discretion in modifying custody and ordering that her visits with Alek be supervised. Dena points out that because Shane's motion to modify custody was made within two years of the original custody decision, he had the burden of demonstrating that Alek's present environment "endanger[ed] seriously his physical, mental, moral or emotional health." KRS 403.340(2). Further, Dena contends that there has been no change in circumstances warranting a modification of custody.
On appeal, this Court will only reverse a family court's child custody decision if the findings of fact are clearly erroneous or the decision reflects a clear abuse of the considerable discretion granted to it in custody matters. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). "A finding of fact is clearly erroneous if it is not supported by substantial evidence . . . ." B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). In Moore v. Asente, 110 S.W.3d 336 (Ky. 2003), our Supreme Court explained,
"[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of allId. at 354 (footnotes omitted).
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 a contrary finding, "due regard shall be given to the opportunity of the trial 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, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.
The threshold requirements to warrant a custody modification hearing are contained in KRS 403.350 and 403.340. KRS 403.350 states:
A party seeking a . . . modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested . . . modification. . . . The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested . . . modification should not be granted.KRS 403.340 provides, in pertinent part:
(2) No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:Finally, KRS 403.270(2) states, in relevant part:
(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health[.]
. . . .
(3) If a court of this state has jurisdiction . . . the court shall not modify a prior custody decree unless after
hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following:
(a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family of the petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child;
(d) Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health;
(e) Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and
(f) Whether the custodian has placed the child with a de facto custodian.
(4) In determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to:
(a) The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child's best interests;
(b) The mental and physical health of all individuals involved;
(c) Repeated or substantial failure . . . of either parent to observe visitation, child support, or other provisions
of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support;
(d) If domestic violence and abuse . . . is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents.
The court shall 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 interest;
(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 . . . ;
(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. . . .
In its final order granting Shane sole custody, the family court ruled that because it had been more than four years since its 2005 order memorializing the parties' agreement to a joint custody arrangement, the proper standard for modification was the best interests of the child as set forth in KRS 403.340(3) and KRS 304.270. However, we must conclude that the family court's determination is flawed. KRS 403.340 speaks in terms of when the motion to modify is filed, not when the family court rules on said motion. Shane's motion, while filed twenty-five months after entry of the initial custody order in April 2005, was only twenty-two months after the entry of the final August 2005 decree awarding joint custody. As the April order was clearly interlocutory, we are compelled to find that because Shane's motion was filed within two years of the final decree, it was subject to the serious endangerment standard set forth in KRS 403.340(2).
That having been said, it is clear from the family court's order that it did, in fact, consider the evidence and make findings based upon KRS 403.340(4), which sets forth the relevant factors to be considered in determining whether a child's present environment endangers seriously his physical, mental, moral, or emotional health. The record clearly supports the family court's findings that Dena's behavior has had a harmful affect on Alek's mental, moral, and emotional health and development and the "emotional manipulation of [Alek] by Dena is abusive." The family court noted "grave" concerns for Dena's mental health and stability as evidenced by her obsessive and unsubstantiated (by the Cabinet) allegations that Alek was being physically abused while in Shane's care, as well as her "bizarre behavior and acts when circumstances do not fit her view of reality."
In her brief to this Court, Dena essentially argues that her interpretation of the evidence is the only reasonable interpretation, and that Alek is clearly better off remaining in her care with the parties continuing to exercise joint custody. She believes that the family court's decision was an abuse of discretion motivated by an inappropriate bias in favor of Shane. Rather than disputing the voluminous evidence that was presented during the hearing, Dena does nothing more than attempt to deflect the focus from her behavior and shift the blame to Shane. For example, Dena contends that "after the hearing on this matter it is clear that Alek was not/is not in danger while in her care, but that there is evidence to indicate that he might be in danger while in Shane's care." She even purports that because Alek eats donut sticks for breakfast while in Shane's care, he is not a concerned parent. As noted by the family court, Dena's claims and allegations are completely baseless and are contradicted by the evidence of record.
The appropriate standard for Shane's motion to modify custody was the serious endangerment standard set forth in KRS 403.340(2) as his motion was filed within two years of the final decree. The purpose of KRS 403.340(2) is to provide stability and finality to a custody decree. See S. v. S., 608 S.W.2d 64, 65 (Ky. App. 1980). However, the key word in KRS 403.340(2)(a) is the word "may." Id. "We do not perceive that this word connotes that the injury to the 'physical, mental, moral or emotional health' must have already occurred or be occurring at the present time. The potentiality for such danger is the test and the courts are not required to wait until the damage is done." Id. See also Sturgill v. Krug, 647 S.W.2d 790, 793 (Ky. 1983).
The family court herein stated that it was using the best interests of the child standard. However, it is clear that it, in fact, essentially utilized a hybrid standard, in that it considered the evidence in light of the factors set forth in both KRS 403.270 and KRS 403.340(4). We are of the opinion that the substantial testimony, lay and expert, established that Alek's environment while in Dena's care was endangering seriously his mental, moral and emotional health. Accordingly, we conclude that the family court's findings of fact are supported by substantial evidence and that it acted well within its discretion in awarding sole custody to Shane and ordering Dena's visitation to continue at the Cabinet's discretion.
For the reasons set forth herein, the order of the Madison Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Rebecca Novak Ashman
Lexington, Kentucky
BRIEF FOR APPELLEE: Crystal L. Osborne
Lexington, Kentucky