Opinion
NO. 2018-CA-001403-ME
04-12-2019
CHARLES J. BERKEMEIER II APPELLANT v. RENEE KELLY BERKEMEIER APPELLEE
BRIEF FOR APPELLANT: Darrell A. Cox Covington, Kentucky BRIEF FOR APPELLEE: Greta Hoffman Walker Florence, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-CI-00534 OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Charles J. Berkemeier, II ("Charles") appeals the Kenton Circuit Court's order awarding Renee Kelly Berkemeier ("Renee") sole custody of their children. Finding no error, we affirm.
The parties divorced in January 2015, and entered into a separation agreement in which they agreed to share joint custody of their two children. In September 2017, Renee petitioned the court for an order modifying the custody agreement and awarding her sole custody. The petition and accompanying affidavit alleged, amongst other things, that Charles had become increasingly aggressive towards her, such as speaking disparagingly of her in front of the children, berating her during visitation exchanges, and sending her harassing text messages. It also alleged that Charles regularly failed to monitor the children's school work and pick them up from school on time. Renee's affidavit further stated that when Charles did exercise his visitation he would return the children unbathed, often with rashes and lice. Before a final hearing on the matter, the trial court ordered hair follicle test for both parties. Charles's test came back positive for methamphetamines and amphetamines. The trial court then immediately suspended Charles's parenting rights, entered a no contact order, and required Charles to pass three consecutive drug screens before he could resume supervised visitation with the children.
Charles was able to comply with the conditions of the trial court's order, and a hearing was eventually held on Renee's petition to modify custody. Renee testified to the allegations in her affidavit. She also testified about instances in which Charles exhibited violent tendencies, such as throwing things, punching holes in walls, and other physical outbursts. Renee further testified that the children would act aggressively after returning from visits with their father. Charles testified and admitted to prior uses of methamphetamines. Charles did not deny there were times he failed to exercise visitation and pick the children up from school. He also admitted to calling Renee, amongst other things, "stupid," "a horrible person," and a "fucking bitch."
The trial court subsequently entered written findings of fact and conclusion of law finding that Charles's regular use of methamphetamines had caused his behavior to become "erratic, unpredictable, aggressive, mean, belligerent, and tardy" and turned visitation exchanges into "combat zones" filled with "f . . . bombs, cursing, and name calling." The trial court concluded that Charles's behavior had endangered the children and amounted to a change in circumstances permitting it to modify the parties' original custody agreement. It therefore found it in the children's best interest to award Renee sole custody with Charles was enjoying visitation on the condition he continue to produce negative drug screens and undergo drug treatment. This appeal follows.
"When reviewing a decision in a child custody case, the test is whether the findings of fact of the trial court were clearly erroneous or the decision constitutes an abuse of discretion." Burton v. Burton, 355 S.W.3d 489, 493 (Ky. App. 2011). Findings of fact are not clearly erroneous when supported by substantial evidence, that is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (1999)).
A court may modify a custody decree two years after its entry if it finds "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." KRS 403.340(3). Factors the court should consider when determining if a change has occurred and modification is in the best interest of the children include: "[w]hether the child's present environment endangers seriously his physical, mental, moral, or emotional health"; "[w]hether the harm likely to be caused by a change of environment is outweighed by its advantages to him"; the interaction and interrelationships of the child with its parents, siblings, and others; the child's adjustment to home, school, and community; and the mental and physical health of the parties involved. KRS 403.340(3); KRS 403.270(2).
Kentucky Revised Statutes. --------
There was ample testimony in this case supporting the trial court's finding that circumstances between the parties had changed and a modification of the parties' custody agreement was necessary for the children's best interests. Although Charles complains that the trial court relied on Renee's testimony, "judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Accordingly, the order of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Darrell A. Cox
Covington, Kentucky BRIEF FOR APPELLEE: Greta Hoffman Walker
Florence, Kentucky