Opinion
NO. 2012-CA-000522-ME
09-28-2012
CASEDA MOORE APPELLANT v. JUNKUNG SIDIBE APPELLEE
BRIEFS FOR APPELLANT: Caseda S. Moore, Pro se Louisville, Kentucky BRIEF FOR APPELLEE: Bonita K. Baker Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 10-CI-502319
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE: Caseda Moore, pro se, appeals from the findings of fact, conclusions of law, and order entered by the Jefferson Family Court awarding the parties joint custody and equal time sharing, and denying her motion for attorney's fees.
Caseda and Junkung Sidibe were married on February 18, 2009. Their only child was born prematurely in February of 2010. The child has a number of health conditions associated with his prematurity and later development of spinal meningitis. The parties separated around the time of the child's birth and, on July 15, 2010, agreed to a temporary parenting schedule in which they shared equal time with the child and had joint custody.
During the pendency of the divorce action, Junkung was arrested for driving under the influence. Because the child was in the automobile at the time, a dependency action was filed against Junkung and he was restricted to supervised visitation while he obtained treatment, took parenting classes and complied with other requirements. Junkung successfully completed all the requirements ordered and was restored to his original custodial status in an order entered on August 23, 2011. Junkung then resumed joint custody of the child.
Also during this time period, Caseda filed four domestic violence petitions against Junkung, which were all dismissed.
In the divorce action, Caseda sought sole custody of the child and Junkung sought joint custody. The circuit court entered an order awarding joint custody with equal time sharing and denied attorney's fees. The court denied Caseda's motion to amend.
Caseda argues that joint custody and equal time sharing was inappropriate when the trial court failed to make specific findings of fact regarding the child's best interest. She attempts to relitigate the circuit court's factual findings and challenges Junkung's honesty, parenting skills and citizenship. She asserts that the child is not safe with Junkung, based upon his previous DUI. She claims that she has been primarily responsible for the child and that joint custody is not workable because she and Junkung cannot cooperate. She requests attorney's fees for this action and the previously resolved dependency action.
We review the circuit court's decision under the abuse of discretion standard. We will not disturb the trial court's findings of fact unless they are clearly erroneous. Miller v. Harris, 320 S.W.3d 138, 141 (Ky.App. 2010).
When a trial court is determining custody between two parents, KRS 403.270(2) requires the trial court to determine custody in accordance with the best interest of the child giving equal consideration to each parent and considering all relevant factors. Those factors include the following: The wishes of the parents, the wishes of the child, the interaction of the child with his parents and siblings, the child's adjustment to his home and community, the mental and physical health of all individuals involved, and information about domestic violence. Id. Under KRS 403.270, the trial court has discretion to order a variety of custody arrangements, including joint custody under KRS 403.270(5), if it is in the child's best interest. See Scheer v. Zeigler, 21 S.W.3d 807, 809, 814 (Ky.App. 2000). Joint custody is in the best interest of the child if the court is reasonably satisfied that the positive aspects of this arrangement outweigh the negative aspects after considering all relevant factors. Squires v. Squires, 854 S.W.2d 765, 768 (Ky. 1993). A cooperative spirit between the parties is not a condition precedent for the award of joint custody if the trial court finds that there is a likelihood of "willingness to rationally participate in decisions affecting the upbringing of the child." Id. at 769.
The circuit court properly considered the wishes of Caseda and Junkung; that parents had been operating under a temporary shared parenting schedule without incident; that a joint custody and equal time sharing arrangement would insure that the child would have continuing interaction with both parents; the child's physical health; and that information about domestic violence was unsubstantiated and the dependency action had been resolved. The court found that there were no facts to preclude an order of joint custody, and it would be in the child's best interest for there to be joint custody and equal shared parenting time in order to foster a close and continuing relationship between the child and each of his parents.
The circuit court's findings of fact and conclusions of law on joint custody and equal time sharing were supported by the record. The findings of facts supported the family court's determination that this arrangement was in the child's best interest and these findings were not clearly erroneous.
The family court's denial of Caseda's request for attorney's fees for the divorce under KRS 403.220 was not an abuse of discretion based upon the parties' similar incomes. Where parties have similar incomes, a court may in fact abuse its discretion by ordering attorney's fees. See Drake v. Drake, 721 S.W.2d 728, 731 (Ky.App. 1986).
The family court's denial of Caseda's request for attorney's fees for the dependency action was not an abuse of discretion because the court had no statutory authority to order the award of such fees. In the absence of statutory authority, "the obligation to pay one's own attorney falls upon the person employing the attorney rather than upon the opposing litigant." Louisville Label, Inc. v. Hildesheim, 843 S.W.2d 321, 326 (Ky. 1992).
We affirm the Jefferson Family Court's order awarding joint custody and equal time sharing, and denying attorney's fees.
ALL CONCUR. BRIEFS FOR APPELLANT: Caseda S. Moore, Pro se
Louisville, Kentucky
BRIEF FOR APPELLEE: Bonita K. Baker
Louisville, Kentucky