Opinion
NO. 2015-CA-001225-ME
05-06-2016
ALTHEA WIGGS APPELLANT v. ROBERT PICKERING APPELLEE
BRIEF FOR APPELLANT: Colin O'Brien Gregory E.J. Coulson Lexington, Kentucky BRIEF FOR APPELLEE: Charles P. Gore Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 01-J-01124 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND TAYLOR, JUDGES. KRAMER, JUDGE: Althea Wiggs appeals a decision of the Fayette Family Court to alter her custody and timesharing arrangement with appellee, Robert Pickering, regarding their daughter, R.P. Specifically, the family court allowed Robert and R.P. to relocate to California. After careful review, we affirm.
R.P., now fifteen years old, resided about sixty percent of the time with Althea (who was her primary custodial parent) and about forty percent with Robert. In November 2014, due to conflict with Althea, R.P. chose to reside solely with Robert and has continued doing so to date. In January 2015, Robert filed a motion to suspend further child support payments to Althea, which the family court granted on April 7, 2015. The family court, sua sponte, also entered an order appointing the Fayette County Friend of the Court's Office as Friend of the Court for R.P., and further directing the Friend of the Court, among other things, to report what had transpired with R.P. since November 2014 as well as why and what is in R.P.'s best interests going forward.
A "friend of the court" is a licensed practicing attorney, who, among other duties, in contested custody cases could, if so requested by the trial judge,
make such investigation as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children and will enable the court to enter just and proper orders and judgment concerning the care, custody, and maintenance of the children. The friend of the court shall make a report to the trial judge, at a time fixed by the judge, setting forth recommendations as to the care, custody, and maintenance of the children.KRS 403.090(4).
On June 24, 2015, Robert then filed a motion to modify timesharing and custody to allow for R.P. to move with him to his home town in California. In relevant part, his accompanying affidavit explained:
3. Recently I was offered a one year contract for teaching by the Dean of the Humanities Department at [California State University], Chico. I would be working in a field in which I have a considerable amount of expertise.
4. I worked for KET for a number of years but was laid off in 2010. Since then I have always been able to maintain employment but it has been somewhat of a
struggle financially. I have been able to provide for my daughter but the downturn in the economy made it difficult to maintain comparable employment in this area. I have been teaching part-time at Georgetown College.
5. I have been offered an opportunity to teach on a one year contract in California. This is in my home state. I have family members living in Chico and my daughter would have a support system supplied by people she knows. She has visited a number of times and has built friendships with my family.
6. I believe I have a very good opportunity to extend my employment past the one year contract once I am fully engaged on the job. An added benefit to this employment would be free admission for our daughter in the California college system.
7. My daughter has been living with me exclusively since November, 2014. She has seen her mom on a few occasions but has not spent the night.
8. I put my daughter in counseling in the middle of November. I was concerned with her relationship with her mother. I tried to include Althea in the counseling but she walked out after several visits. I believe the counseling was very valuable to my daughter. The counselor is supportive of this move.
9. The relationship between my daughter and her mother continues to be very strained. My daughter does not desire to visit with her mother except on a very limited basis. I have discussed this move with her and while she has some hesitation because of friendships in Lexington, she is open to the opportunities this would offer to both of us.
10. I would be willing to pay for my daughter to fly back and see her mother once a year.
11. I would not ask for child support and this would provide Althea with money to have our daughter come and visit her, also.
12. This opportunity arose very recently and I am under pressure to accept or reject the opportunity. I have waited several weeks hoping that the evaluation [of the Friend of the Court] would be completed. I am now in a position that I cannot wait any longer and I have to file this motion seeking Court permission to move with my daughter to California.
13. I do not see any change in my daughter's attitude about having contact with her mother. She has visited several times during the day but has not spent the night in over six months. She seems comfortable with the very limited time sharing with her mother. The contact between my daughter and her mother is extremely limited. The move to California might actually enhance the relationship because it would allow [R.P.] the opportunity to come for visits and have a concentrated amount of time with her mother.
14. I have mentioned this situation to Althea but she has rarely been one to address concerns about our child with me in any meaningful way. I see this as not only a very good career move for myself but a great opportunity for our daughter and her future educational pursuits. While the distance is considerable, the internet affords many opportunities to remain in contact and I would strongly encourage our daughter to do so with her mother.
15. I believe this request is in the best interest of our daughter because her future educational opportunities are greatly expanded. Potentially she could graduate from college with no debt and a good education.
Robert's motion also contained a notice that it would be heard by the family court on July 2, 2015.
On July 1, 2015, Althea filed a verified response in opposition. At the onset, she complained of having short notice of Robert's motion. Her response further stated in relevant part that relocation was not in R.P.'s best interests because:
a. The parties are waiting on a Friend of the Court evaluation from Mr. Pickering's earlier court action. This evaluation is critical to determining what has transpired with [R.P.] and the parties since last November as well as why and what is in [R.P.'s] best interest going forward. Up until last November [R.P.] primarily resided with Ms. Wiggs.
b. [R.P.] has a strong network of family and friends here in Kentucky where she has spent her life so far. [R.P.] currently has a paid internship with Smiley Pete Publishing, arranged by Ms. Wiggs.
c. Mr. Pickering has not facilitated parenting with Ms. Wiggs throughout [R.P.'s] upbringing. As a most recent example, he unilaterally selected a counselor for [R.P.] last fall, despite the parties being joint custodians, and has discussed the potential relocation with [R.P.] prior to even mentioning it to Ms. Wiggs.
d. Mr. Pickering's position is only for a year even if he expects that it may be extended. There is no reason he cannot accept the position and relocate himself but it is irresponsible and thoughtless to move [R.P.] across the country away from her mother and extended family here with whom she has had a fifteen year relationship for a tenuous opportunity.
e. And, the "added benefit" of free tuition is only if Mr. Pickering retains employment past the one year contract and neglects to note whether that tuition is available is [sic] [R.P.] continues to reside in Kentucky until she attend [sic] college.
In closing, Althea asked the family court to either deny Robert's motion or set a hearing for a determination of timesharing and relocation after the Friend of the Court report was submitted.
The family court understood from the substance of Robert's motion that he was unwilling to move to California unless his motion was granted, and that time was of the essence regarding his ability to accept the offered teaching position. Accordingly, the family court conducted an evidentiary hearing regarding Robert's motion on July 2, 2015, despite Althea's objection and an acknowledgement from Robert that he had not anticipated a full evidentiary hearing on that date.
Robert offered testimony that was consistent with and which elaborated upon what he had represented in his affidavit. He added R.P.'s difficulties with Althea appeared to him to have stemmed from her attitude that her mother had a controlling nature. He testified that in July 2014, he and Althea had agreed counseling would benefit R.P.; that Althea had told him she would select a counselor at that time; and that he had waited four months for Althea to do so before going ahead and scheduling appointments for R.P. with a professional suggested by R.P.'s school guidance counselor. He testified that R.P. would need to be a California resident to take advantage of the tuition benefits relating to the teaching position he planned to accept; and that he could find other positions in California in the event that the offered position did not last longer than a year.
Althea's testimony was consistent with her response to Robert's motion. She testified the event that had caused R.P. to leave her house and live with Robert was merely an argument that occurred because R.P. wanted to hang out with her friends rather than clean her room. Althea indicated that before this event, she and R.P. had always had a strong relationship and open communication. She further testified she had participated in five of R.P.'s counseling sessions and walked out of the fifth one because she found the counselor, in her words,
pretty unresponsive to me and the platform to not be one of good communication or trust and I felt like it was more a situation for [R.P.] that her dad had set up and it wasn't so much about involving me in that process. So I walked out because I thought like it wasn't real, like the things that were being, like [R.P.] was being catered to and rewarded for a kind of reluctance and defiance of me by [her counselor] as well.
Sue Wingate, the social worker employed by the Fayette County Friend of the Court's Office tasked with writing the aforementioned report, also testified. While she had yet to write the report, she testified she was able to orally report her findings and answer any questions relating to them. Over the course of her investigation, she had interviewed the interested parties; interviewed R.P. in the presence of her counselor on May 13, 2015; interviewed R.P.'s counselor; and reviewed R.P.'s therapy records. R.P.'s counselor told Wingate that R.P. was reluctant to leave Kentucky, but that her reluctance owed to the change of environment, not to leaving Althea. R.P. told Wingate she was uncomfortable being with Althea because Althea has a controlling nature. Wingate could not understand how one instance of what Althea characterized as typical teenage rebellion could have ended a strong relationship of open communication, as characterized by Althea, so totally and abruptly. Wingate's conclusion was that Althea was not abusive toward R.P., but that Althea was open to communicating with R.P. unless the communication was something she did not want to hear. In further support of her conclusion, Wingate cited Althea's decision to walk out of R.P.'s counseling session and refusal to participate thereafter.
After Althea indicated she had no further questions for Wingate or Robert, the family court ruled in favor of Robert's motion, holding in substance that it was in R.P.'s best interest to move with him to California. From the bench, the family court explained its decision was based upon what it inferred from the testimony were deeper problems in Althea's relationship with R.P., as indicated by Wingate; Althea's hesitation to proactively repair her relationship with R.P. after November 2014 through counseling; its conclusion that the situation in California would be favorable to R.P.; and its belief, based upon Robert's testimony, that Robert would continue to encourage R.P. to communicate with Althea and that the impact of the long distance upon R.P.'s relationship with her mother would be mitigated by various internet services such as Skype or Face Time. Thereafter, on July 20, 2015, the family court entered a written order allowing Robert to move with R.P. to California; excusing Althea from further child support payments; and requiring Robert to pay for one annual round trip ticket for R.P. to visit her mother in Kentucky.
This appeal followed.
On appeal, Althea does not contend the evidence adduced at the July 2, 2015 hearing was insufficient to support the family court's order vesting Robert with primary residential custody of R.P. She does not contend the family court's order was otherwise deficient. Her argument is that she was deprived of due process because Robert and the family court violated Family Court Rule of Practice and Procedure (FCRPP) 7, which provides:
(1) Unless otherwise ordered by the court, in any action in which the permanent custody or time-sharing of the child(ren) is in issue, each party shall, not less than 14 days prior to the day set for hearing, provide the other party(ies) with a list of the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a witness, as well as a list of exhibits to be entered.
(2) Relocation.
(a) Before a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian. Either party may file a motion for change of custody or time-sharing within 20 days of service of the notice if the custodians are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement. See Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) and Wilson v. Messinger, 840 S.W.2d 203 (Ky. 1992).
(b) Before a sole custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-custodial parent. If the court ordered visitation is affected by the relocation, the non-custodial parent may file a motion contesting the change in visitation within 20 days of service of the notice.
As to how this rule was violated, Althea asserts that FCRPP 7(1) requires "at least two weeks to elapse between filing of a motion requesting a change in custody and a hearing on the matter;" FCRPP 7(2) requires "at least 20 days for opposing parent to file a counter-motion for a change of custody;" and that neither of these periods of time had elapsed prior to the July 2, 2015 hearing. Therefore, she reasons, the family court's judgment must be vacated and she is entitled to a new custody hearing.
Althea misinterprets this rule. The Kentucky Supreme Court has explained the two-week period specified in FCRPP 7(1) is not mandatory and may be reduced in the reasonable exercise of the family court's discretion. See Commonwealth, Cabinet for Health and Family Services v. S.H., 476 S.W.3d 254, 259 (Ky. 2015) (explaining a family court's decision to hold a hearing after six days had passed, under the circumstances presented, was acceptable and did not constitute an abuse of discretion). Under the circumstances there also would have been no justification for requiring the two-week period specified in FCRPP 7(1) because the only evidence provided by Robert in support of his motion was his own testimony. The specified purpose of the two-week period is to "provide the other party(ies)" time to review "the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a witness, as well as a list of exhibits to be entered." (Emphasis added.)
Robert offered his own testimony and cross-examined Althea at the hearing. As noted, Sue Wingate also testified about the specifics of her report. However, Althea—not Robert—introduced Wingate's testimony as evidence. And the family court—not Robert—directed the Friend of the Court, sua sponte, to investigate and compile a report regarding this matter.
Furthermore, the purpose of FCRPP 7(2) is to provide the non-relocating joint custodian an opportunity "within 20 days of service of the notice" to move for a change of custody or timesharing prior to the other joint custodian's relocation. That purpose was served below. During the July 2, 2015 hearing—which was within 20 days of the date Althea was served with notice—the family court formally recognized the substance of Althea's counter-motion for custody, i.e., that if it denied Robert's motion, and Robert nevertheless moved to California, Althea would become R.P.'s primary residential custodian.
Althea has given no indication she otherwise wished to alter the terms of her joint custodial relationship with Robert, had Robert chosen to stay.
Althea does not argue the family court abused its discretion by holding the hearing six days after Robert's motion. Even if such an abuse had occurred, however, it would not be a basis for reversal. Violations of FCRPP 7 must result in something more than harmless error. See Kentucky Rule of Civil Procedure (CR) 61.01. In S.H., for example, the Kentucky Supreme Court affirmed a decision of this Court to reverse a judgment of a family court on the basis of FCRPP 7 because the resulting error was not harmless, but substantial; but for the violation, the result would have been different—there would have been no evidence introduced to support the family court's judgment terminating the appellant's parental rights. S.H., 476 S.W.3d at 257; 259-60. On the other hand, this Court has held a violation of FCRPP 7 would be harmless error if, at best, it would merely cause the matter to be remanded for a hearing identical to that which has already been conducted. See Jackson v. Crockett, No. 2011-CA-001803-ME, 2012 WL 3047298 at *5 (Ky. App. 2012). This is because based on the evidence of the relevant witnesses the findings would be the same. Id.
On this point, we find Jackson persuasive and appropriate to cite per CR 76.28(4).
As noted, Althea does not state what additional witnesses she would have called in support of her argument that a move to California was not in R.P.'s best interests.
In her brief, Althea asserts if she "had been given the benefit of the required due process protections mentioned above, it is more than conceivable, even highly likely, that she would have presented evidence to contradict that which was presented by [Robert] in support of his motion." But even with the benefit of four months' hindsight, Althea gives no indication of what additional evidence she might have produced, or what further testimony she would have elicited or developed. As to the Friend of the Court's report, Althea was able to question the social worker charged with writing it, Sue Wingate, who testified about the report's findings and conclusions. While Althea urges she was unable to explore "the basis for the opinions" contained in the report, she does not describe what those opinions were, in what way she takes issue with them, or how she would have investigated them further. The report, as related by Wingate, also added nothing to the discussion beyond what Robert and Althea had already testified about, aside from the fact that R.P. was reluctant to leave Kentucky because it was more familiar to her than California. In short, Althea fails to explain and we cannot see how remanding this matter would result in anything more than another hearing identical to that which has already been conducted.
Althea filed her appellate brief on October 27, 2015, approximately four months after the July 2, 2015 hearing. --------
In light of the foregoing, we AFFIRM.
JONES, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Colin O'Brien
Gregory E.J. Coulson
Lexington, Kentucky BRIEF FOR APPELLEE: Charles P. Gore
Lexington, Kentucky