Opinion
NO. 2018-CA-001299-ME
05-03-2019
TINA MICHELLE VANCE AND TIMOTHY WAYNE SMITH APPELLANTS v. JAMES ELLIS SMITH AND CARRIE BREWER APPELLEES
BRIEF FOR APPELLANT: James O'Toole Lexington, Kentucky BRIEF FOR APPELLEE: Angelena Etherton Bardstown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 14-CI-00444 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND KRAMER, JUDGES. CLAYTON, CHIEF JUDGE: Tina Michelle Vance and Timothy Wayne Smith appeal from the Bullitt Circuit Court's order modifying the timesharing arrangements of a minor child, K.E.S. ("Child"). Finding no error, we affirm.
BACKGROUND
James Smith and Carrie Brewer are the biological parents of Child. In May of 2014, James's father, Timothy Smith, and Timothy's girlfriend, Tina Vance, filed a petition for de facto custody pursuant to Kentucky Revised Statutes (KRS) 403.270 asking the court to grant them de facto custodian status and sole custody of Child. The petition also requested both a supervised parenting time schedule for and child support from James and Carrie. Timothy and Tina had previously been granted temporary custody of Child pursuant to an order entered in a dependency, neglect, and abuse case.
In December of 2014, the family court entered an agreed order awarding joint custody of Child to Timothy, Tina, James and Carrie. Additionally, a timesharing arrangement agreed to by the parties consisted of James and Carrie seeing Child every other Saturday from 9:00 to 6:00 and every Sunday from 12:00 to 6:00.
Thereafter, in January of 2017, James and Carrie filed a motion to modify custody pursuant to KRS 403.340 and to return full custody of Child to James and Carrie. The family court held a hearing on the motion in May of 2017, at which time the court announced that it was construing the motion as one to expand the parents' timesharing of Child so that he would reside in their home the majority of the time rather than a motion to modify the joint custody arrangement between the parties.
Therefore, in its July 27, 2018 findings of fact, conclusions of law, and order, the family court analyzed the motion pursuant to Kentucky's modification of visitation statute, KRS 403.320, rather than Kentucky's modification of custody decree statute, KRS 403.340. Upon consideration of the evidence and utilizing the "best interest" standard of KRS 403.320(3), the family court found that a modification of the timesharing was in Child's best interest and modified the timesharing so that James and Carrie would have Child during the week, and that Timothy and Tina would have Child every other weekend and a mid-week visit with Child. The joint custody order remained in effect, and the court noted that the parties were "expected to conduct themselves as joint custodians."
Timothy and Tina filed a motion to alter, amend, or vacate pursuant to Kentucky Rules of Civil Procedure (CR) 59.05 on August 1, 2018, arguing that "the abrupt [timesharing] change order by the Court [would] certainly harm the child" and asking the court for a new hearing before any changes to the schedule were made. The family court held a hearing on August 6, 2018 and, while never orally ruling on the motion to alter, amend, or vacate, asked the parties to work on an agreed order that would address the Child's timesharing among the parties. The parties did so at the hearing, and an agreed order was entered on August 28, 2018, addressing the transition to James and Carrie as the new primary custodians. Pursuant to the agreed order, the matter was set for a hearing on October 15, 2018, and the family court stated that "[i]f parties work out remaining issues they will remand [the motion to alter, amend, or vacate] by Agreed Order." Thereafter, the record on appeal contains the family court's signed October 15, 2018, docket sheet in which the family court wrote "Remand. Final judgment shall take effect."
Meanwhile, Timothy and Tina had also filed a notice of appeal on August 24, 2018, and an amended notice of appeal on August 27, 2018, providing a notice of certification of the record. Therefore, because the motion to alter, amend, or vacate was remanded by the trial court and the notice of appeal was timely filed within thirty days of the final judgment, this appeal was timely. See CR 73.02(1)(a).
ANALYSIS
As a preliminary matter, we note that, pursuant to CR 52.01, the family court's findings of fact "shall not be set aside unless clearly erroneous[.]" "A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person." B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005) (citation omitted). Moreover, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01. "Thus, the question before this Court is not whether we would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010) (citations omitted). We review the arguments of the parties with the foregoing standard in mind.
Tina and Timothy first argue that the family court employed an improper presumption in favor of James and Carrie, as Child's natural parents, and that, as de facto custodians, they should have been given equal standing pursuant to KRS 403.270(1)(b). We disagree, as this argument overlooks the fact that the family court correctly reviewed James's and Carrie's motion as one for a modification of timesharing rather than one for a modification of the joint custody agreement.
As stated by the Kentucky Supreme Court, "the first question on a custody modification or relocation motion is, 'Is the motion actually seeking modification of custody or visitation/timesharing?'" Pennington v. Marcum, 266 S.W.3d 759, 768 (Ky. 2008), as modified (Oct. 24, 2008). Here, we agree with the family court that James and Carrie were not seeking to set aside the joint custody agreement, nor were they seeking sole custody of Child. Rather, from the substance of their arguments before the family court, they were seeking to modify the timesharing arrangement and to have Child reside primarily with them, or to become, in other words, the "primary residential parent[s]." See Pennington, at 768-69. Therefore, the statute utilized by the family court to modify Child's timesharing arrangement - KRS 403.320 - was the appropriate and applicable statute.
Tina and Timothy next argue that the family court failed to properly weigh and consider Child's best interests under KRS 403.320(3). Particularly, Tina and Timothy argue that the trial court failed to address the list of pertinent best interest factors contained in KRS 403.270(2), that the family court failed to consider that Child was well-adjusted in his current environment, and that a change in timesharing would necessitate a change in schools, football teams, friends, and home environment. KRS 403.320(3) states, in applicable part: "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]"
In this case, we find that the family court properly considered the applicable testimony and proof and found a modification of timesharing to be in Child's best interest. First, as we have already mentioned, the factors contained in KRS 403.270 are to be utilized when the court is determining custody rather than timesharing. Next, it is clear that the trial court conducted a thorough "best interests" analysis, which included a number of the factors contained in KRS 403.270. The family court considered the interactions between the adults involved and Child, the advances that James and Carrie had made in their parenting skills and communication, Child's wishes, including the fact that Child's younger sibling lived with James and Carrie full-time, and the mental and physical health of all of the individuals involved, including the fact that Tina and Timothy were both suffering from health conditions that limited their ability to provide regular care and attention to Child. See KRS 403.270(2).
Further, as to Tina's and Timothy's more generalized arguments that the timesharing change would be detrimental to Child, we note that it is well-established in Kentucky jurisprudence that the trial court is "in the best position to resolve the conflicting evidence[.]" Frances v. Frances, 266 S.W.3d 754, 758-59 (Ky. 2008). The family court struck the appropriate balance between transitioning James and Carrie to a more traditional parental role while acknowledging the large role that Timothy and Tina had played in Child's life. Further, Tina's and Timothy's continued joint custody with James and Carrie, along with their continued timesharing and interaction with Child, act as a bulwark against potential detriment Child may face in the future. The family court had an ample factual basis for its decision, and we simply cannot conclude that the court's findings of fact were clearly erroneous or that it abused its discretion.
CONCLUSION
For the foregoing reasons, we affirm the Bullitt Circuit Court's order.
COMBS, JUDGE, CONCURS.
KRAMER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
KRAMER, JUDGE, DISSENTING: Respectfully, I must dissent from the majority opinion because the family court failed to treat Tina and Timothy in accord with their status as de facto custodians, failed to correctly apply the law and binding Kentucky Supreme Court precedence, and failed to make sufficient findings to justify such a drastic modification of timesharing.
This Court has previously explained that, "[t]he purpose of designation as a de facto custodian is to afford a person who has acted as a parent equal status with parents in court." Hicks v. Halsey, 402 S.W.3d 79, 81 (Ky. App. 2013) (emphasis added). Accordingly, in evaluating a motion to modify timesharing between joint custodians, Tina and Timothy should have been on equal footing with James and Carrie. It is wholly undisputed that for the better part of the last four plus years of Child's life he has resided primarily with Tina and Timothy, with very limited timesharing afforded to James and Carrie. While an initial custody determination is not at issue presently, KRS 403.270 nonetheless is relevant to deciding timesharing in a joint custody award involving de facto custodians. Anderson v. Johnson, 350 S.W.3d 453, 455 (Ky. 2011). Accordingly, the application of law in this case is inconsistent with binding Supreme Court precedence because the best interests of the child standard is not different as applied in KRS 403.320 and KRS 403.270(2). In Anderson, the Kentucky Supreme Court held that, "[o]n motions to modify timesharing, the judge has several factors to consider in making the determination of what the best interests of a child are, which are partially listed in KRS 403.270 , but include all relevant facts. The basis for a modification decision is thus fact-driven rather than law-driven, because the legal standard is whether the [modification] is in the best interests of the child, which is stated plainly in the statute. To review the judge's decision on appeal, it is important to know what facts the judge relied on in order to determine whether he has made a mistake of fact, or to even determine if he is right at law, but for the wrong facts. If a judge must choose between facts, it is clearly relevant which facts supported his opinion." Anderson, 350 S.W.3d at 455 (emphases added).
Pursuant to KRS 403.270(2):
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315 , there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct
a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare. 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 or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse, as defined in KRS 403.720, has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child's relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program;
(h) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(i) The intent of the parent or parents in placing the child with a de facto custodian;(Emphasis added.)
(j) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school; and
(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse, as defined in KRS 403.720, against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.
Evaluating the status and equal footing a de facto custodian is given in an initial custody decision pursuant to KRS 403.270(2) against what transpired in the present case after Tina and Timothy were the primary residential custodians of Child for over four years illustrates the flaw in disregarding any guidance from KRS 403.270(2) and how illogical the outcome of this case is. Under KRS 403.270(2), there is a rebuttable presumption for equal parenting time. Here, after the initial custody decision, equal parenting time did not take place over the last four plus years due to James's and Carrie's issues with parenting Child. Rather, during the bulk of the time since Child started residing with Tina and Timothy, James and Carrie had only limited timesharing with Child. Pursuant to KRS 403.270(2), if this was an initial custodian determination, Tina and Timothy would presumptively be entitled to at least equal timesharing. But, after having been the primary caretakers and residential custodians of Child since 2014, with only limited visitation granted to James and Carrie during that time, Tina and Timothy went from having large amounts of time with Child to a very limited amount of time after James and Carrie moved for a modification of timesharing without any real grounds to support that such a dramatic change would serve the best interests of Child. In my view, this is an illogical application of the law, especially considering the circumstances under which Child came to live with Tina and Timothy.
Even if we disregard any application of KRS 403.270(2) for the sake of argument only, KRS 403.320(3) states that, "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." (Emphasis added.) There can be no way to describe the modified timesharing granted to Tina and Timothy other than "restrict[ed]" particularly in light of the considerable amount of timesharing they have enjoyed with Child since 2014. While in their care, Child did not experience anything that would be detrimental to him that justifies such restricted timesharing with Tina and Timothy. Yet, the family court made no findings that restricted timesharing on the part of Tina and Timothy was necessary so that Child's "physical, mental, moral or emotional health" would not be "endanger[ed] seriously." Indeed, the facts of this case would not support such a finding.
Even given the great deference owed to a family court in these matters, I respectfully disagree that the family court's findings of fact support the necessary best interest findings of Child for the modification of timesharing as granted, which essentially flipped the living arrangements that Child has known since 2014. This was a drastic change in how Child had lived his life for over four years; yet, nothing drastic happened in Child's life that would justify his best interests being served by flipping his living arrangement so radically. And, in my view, although it is the best interests of Child that is the paramount concern in a modification of timesharing evaluation, Tina and Timothy were clearly not placed on equal footing as Carrie and James even though they have enjoyed de facto custodian status since 2014. Accordingly, I would reverse and remand for additional factual findings regarding Child's best interests in light of the facts of this case taking into consideration KRS 403.270(2) and whether restricted timesharing with Tina and Timothy as outlined in KRS 403.320 is warranted, while evaluating this case with Tina and Timothy on equal footing with Carrie and James. BRIEF FOR APPELLANT: James O'Toole
Lexington, Kentucky BRIEF FOR APPELLEE: Angelena Etherton
Bardstown, Kentucky