Opinion
NO. 2014-CA-000861-ME
03-27-2015
WILLIAM A. NISBET IV APPELLANT v. ASHLEY JUDSON NISBET APPELLEE
BRIEF FOR APPELLANT: Jennifer Sacharnoski Nelson Princeton, Kentucky BRIEF FOR APPELLEE: Julia Crenshaw Hopkinsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE WILLIAM E. MITCHELL, SPECIAL JUDGE
ACTION NO. 07-CI-00457
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, JONES, AND D. LAMBERT, JUDGES. LAMBERT, D. JUDGE: William A. Nisbet IV ("William") appeals an order of the Hopkins Family Court, where Hon. William E. Mitchell, Special Judge, denied him visitation with his children. After careful review, we reverse the portion of the order with respect to visitation and remand for further proceedings.
Following their divorce on May 6, 2008, William and Ashley J. Nesbit ("Ashley") engaged in a series of proceedings related to the custody and support of their three minor children. For the most part, William and Ashley shared custody of the children, with Ashley acting as the primary residential custodian. However, on multiple occasions the family court awarded sole temporary custody to Ashley and limited William to supervised visitations due to his substance abuse issues.
The latest proceeding, which is the subject of this appeal, began on May, 24 2013, when William, who is now a resident of North Carolina, filed a motion seeking a new visitation schedule. The court conducted a hearing on December 5, 2013, and issued a final order on April 30, 2014.
In its order, the court granted Ashley sole custody of the children and concluded that any visitation "would prove to be a serious endangerment to [the] children's physical, mental, moral or emotional health." The court reached this latter conclusion based on the parties' testimony at the hearing, "the events that have occurred in the past" and "the children's strong desire not to have contact" with William.
The past events the court referenced took place during the marriage and post-divorce while William suffered from serious substance abuse issues. William was convicted of various criminal offenses and ultimately lost his license to practice law. He also did not contact his children for extended periods of time, including a period of more than two years prior to filing his motion on May 24, 2013, and previously failed to appear for scheduled visitations. On one particular occasion, William raised his voice to the children in the dining room of a restaurant.
Ashley testified that these events adversely affected the children's behavior and the court found these events also had a negative impact on the children's health. Specifically, the court compared the children's past performances in school, sleeping habits and interactions with their peers to those of the present and found the children had improved since they last had contact with William. The court then opined the publicity of William's criminal convictions embarrassed the children, as they were ridiculed at school, and William's failure to appear at scheduled visitations disappointed them. The court also noted that although William had moved to North Carolina, found employment, and testified he had been sober for two years and wanted to improve his condition before resuming visitation, he had not contacted the children during the same time.
The "children's strong desire not to have contact [with William]" finding originated from an in camera interview with the children. During this interview, the children expressed that they did not see a way to gradually reconnect with William. They did not remember the last time William visited and stated he had not "made much of an effort to see them." The oldest child, who was thirteen years old at the time, testified he did not want visitation and no longer thinks about William. However, the oldest child also indicated that nobody brings up William's criminal convictions anymore and an occasional call would be satisfactory. The middle child, age eleven, communicated he was afraid to stay with William in the past because of his substance abuse and did not want to talk to him. The youngest child, who was ten, brought up the restaurant incident. According to the court, the children's comments were also "consistent with earlier testimony from [Ashley]."
As a result, the court limited William to one phone call with his oldest son and unlimited cards, gifts and presents to all three. The court explained the purpose of this narrow limitation was for William to make contact with his children and provide a toll free number to "[open] the lines of communication" between them; however, the children would have to initiate any such communications in the future. This appeal followed.
Under KRS 403.320(1), "[a] parent not granted custody of the child[ren] is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child[ren]'s physical, mental, moral, or emotional health." KRS 403.320(1). Moreover "the burden of proving that visitation would harm the child[ren] is on the one who would deny visitation. Smith v. Smith, 869 S.W.2d 55, 56 (Ky. App. 1994).
What constitutes a serious endangerment is not defined but is left to the sound discretion of the trial court. Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). As such, a trial court's order denying a non-custodial parent's entitlement to reasonable visitation will not be disturbed unless it exhibits a "manifest abuse of discretion." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). "Abuse of discretion . . . implies arbitrary action or capricious disposition under the circumstances." Allen v. Devine, 178 S.W.3d 517, 524 (Ky. App. 2005). Furthermore, any factual finding with respect to the trial court's visitation determination must be supported by substantial evidence, which is sufficient "to induce conviction in the mind of a reasonable person." Hunter v. Hunter, 127 S.W.2d 656, 659 (Ky. App. 2003).
William challenges the family court's conclusion that renewed visitation would harm the children. He argues the court improperly based its decision on his past conduct, without adequately taking into consideration his progress and current condition, and the wishes of his children. As a result, he further argues the prescribed method for him to establish a relationship with his children—one phone call to the oldest child with subsequent communication to be initiated only by the children—is unreasonable. On the other hand, Ashley contends that the court's decision was appropriate. We agree with William.
In his brief, William cites the unpublished decision Milton v. Hubbard, 2004 WL 102819 (Ky. App.), to support his position that a traumatic or harmful visitation does not necessarily endanger seriously a child's health. Additionally, William cites another unpublished case Fairchild v. Fairchild, 2007 WL 4212197 (Ky. App.), to support his arguments that the wishes of the children cannot bind the court in visitation determinations. Considering the family court in this case attempted to address whether visitation would seriously endanger the children's health in findings of fact, whereas the Milton court did not, we do not find Milton persuasive. Similarly, because the family court purported to base its decision on multiple findings, and not solely on the children's wishes, we do not find the Fairchild decision persuasive. Also, unlike Fairchild, the family court's impartiality in this case is not in doubt.
William is not without persuasive arguments, however. As William argues, Ashley has failed to meet her burden of proof that a reasonably adapted visitation schedule would seriously endanger any aspect of the children's present health. There was no proof offered by Ashley that William currently poses a threat to the physical well-being of his children. Further, no proof was presented which would show William's reasonable presence will cause any of the children to once again struggle in school, change their sleep patterns, or cease involvement in their favorite extracurricular activities. Ashley did not present any expert testimony from a qualified mental health professional to support her assertion that the children's mental or emotional health would suffer from contact with William. The court can prevent any episodes similar to the one in the restaurant dining room by adjusting the scope of William's visitation. Likewise, the court can prevent any future disappointment caused by William's failure to participate in scheduled visitations by monitoring his attendance record and conditioning future visitations on maintaining a suitable record.
The unpublished decision Albright v. Henderson, 2004 WL 224429 (Ky. App.), weighs against the court's finding that William's two year absence, during which time he found employment and achieved sobriety, endangered the children's welfare. In Albright, this Court upheld a trial court's visitation order in favor of a father who similarly suffered from substance abuse and voluntarily withdrew from visiting his child until he could control his bi-polar disorder. This Court affirmed the trial court even though the Albright father had a history of both domestic violence and suicidal tendencies and was absent from his child's life for four years. Because William's explanation for his decision to remove himself from his children's lives parallels that of Albright, and William sought visitation in one half of the time without having a history of domestic violence, we feel the court improperly found William's absence detrimental without addressing the soundness of the decision behind it and William's continued effort to maintain sobriety.
We cite this unpublished opinion pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
The in camera interview also provides no evidence that visitation will presently harm any aspect of the children's health. The middle child's statement that he was afraid to stay with William overnight, while certainly justified at the time when William lived in the same town and suffered from substance abuse, is no longer an issue. The court can tailor the visitation schedule to account for both William and the children's changed circumstances. Further, the children's statements that they were embarrassed because of William's high profile convictions equally has no bearing. The children admitted they are no longer teased about the incident, and even if they were, no amount of visitation—whether nonexistent or ubiquitous—will change the past.
Absent a finding supported by substantial evidence that the noncustodial parent seeking visitation would presently endanger their children's physical, mental or emotional health, neither the parent's past conduct nor the wishes of the children are controlling. As the court here could not make such a finding based on substantial evidence presented by the custodial parent, we reverse its conclusion with respect to visitation.
Accordingly, under the language of KRS 403.320(1) we must now decide whether the family court provided William reasonable visitation. We hold that it did not.
This Court has characterized a parent's right to visitation with its minor children as "a natural right" and has explained that "neither past delinquency ... nor former conviction and confinement ... nor present incarceration necessarily requires denial of the errant parent's right of access to his children." Smith, 869 S.W.2d at 57 (quoting M.L.B. v. W.R.B., 457 S.W.2d 465, 466-467 (Mo. App. 1970)). Further, the language of KRS 403.320 presumes visitation is in the child's best interests "for the obvious reason that a child needs and deserves the affection and companionship of both its parents." Id. at 56 (emphasis added).
Here, William was only allowed one phone call with his oldest son for the following purposes: (1) to establish contact with him; and (2) to provide a toll free number so any of the children can, on their own initiative, call him. No contact is permitted as to either of his younger two sons except William may send cards, letters and gifts to any of his sons.
In their current form, the family court's means to serve the children's best interests are unreasonable. By requiring the children to initiate future phone calls, the court places an unreasonable burden on minor children, subject to the influence of one custodial parent, to decide what role William will play in their lives. This result is contrary to both the statutory presumption and the fundamental relationship of parent and child.
For the reasons stated herein, we hereby REVERSE the portion of the order of the Hopkins Family Court with respect to visitation and REMAND with instructions for the family court to make findings in accordance with the statute and establish a reasonable visitation schedule providing face to face contact between William and his children.
ALL CONCUR. BRIEF FOR APPELLANT: Jennifer Sacharnoski Nelson
Princeton, Kentucky
BRIEF FOR APPELLEE: Julia Crenshaw
Hopkinsville, Kentucky