Opinion
NO. 2016-CA-001292-ME
06-30-2017
BILLY BRANNON APPELLANT v. CRYSTAL ENGLE APPELLEE
BRIEF FOR APPELLANT: Ronald C. Cox Harlan, Kentucky BRIEF FOR APPELLEE: John L. Grigsby Barbourville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 06-CI-00920 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Billy Brannon appeals from an order of the Harlan Circuit Court denying him visitation with his three minor children. He alleges the circuit court erred as a matter of law when it did not apply the best interest standard when determining his request for visitation or, alternatively, there was insufficient evidence to support a finding that visitation would seriously endanger the children. We conclude the circuit court applied the proper standard and there was substantial evidence to support the circuit court's finding that visitation would substantially endanger the children.
Initially, we note a glaring omission in Billy's brief. Although Billy properly labeled a section of his brief "statement of the case," Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iv) provides that it shall contain:
[A] chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.In his four page "statement of the case," there is not a single citation to the record and, although he references the testimony throughout his brief, citations to the record are omitted. While this Court has the authority to strike a brief which fails to comply with CR 76.12(4)(c)(iv), "[r]ather than imposing such a severe sanction . . . we elect instead to dispose of this appeal based solely upon the contents of the parties' briefs." Robbins v. Robbins, 849 S.W.2d 571, 572 (Ky. App. 1993).
Billy and Crystal Engle (formerly Brannon) were divorced by decree of dissolution on March 26, 2010. The parties were granted joint legal custody of their three minor children with Crystal being designated the primary residential parent, and Billy being awarded visitation as the parties agreed and, if they could not agree, Billy would exercise timesharing in accordance with the Harlan Circuit Court standard visitation schedule.
On February 25, 2011, the Cabinet substantiated abuse by Billy against his daughter who was then six years old. Billy spanked his daughter with such force that she was bruised more than forty-eight hours later. Crystal moved to terminate Billy's visitation rights or, in the alternative, to restrict or supervise Billy's visitations. Although the court found Billy used excessive punishment on his daughter, it did not terminate visitation. The circuit court ordered Billy to complete anger management counseling at the Cumberland River Comprehensive Care Center and, within two weeks of the entry of its order, provide proof of enrollment to his counsel and the court. After Billy attended only one anger management counseling session, the circuit court ordered that he provide an explanation from the Cumberland River Comprehensive Care as to why he does not need or require anger management. There is no such explanation contained in the record.
Billy continued to exercise visitation with the children until March 2013, when Billy again abused his daughter, then nine years old, by pinching her face, injuring her eye, pulling her hair and smacking her in the face. Crystal sought and obtained a Domestic Violence Order (DVO) against Billy on behalf of their daughter and the Bell County Department for Community Based Services substantiated the abuse. The Bell County District Court granted the DVO and Billy was ordered to have no contact with the children for three years.
Billy did not appeal from the DVO but, on August 13, 2013, filed a motion to reinstate visitation in the Harlan Circuit Court through the dissolution action. The circuit court denied the motion stating that Billy's remedy was to appeal from the Bell District Court.
In a December 20, 2014 motion to amend the DVO, Billy sought to modify the restriction on visitation. On June 3, 2013, the Bell District Court modified the original DVO granting Billy weekly supervised visitation with the children once per week for one hour to be administered at the discretion of the Bell County Department for Community Based Services. The order further provided that after two months, visitation would be extended to two hours. In addition, Billy was directed to attend parenting classes, enroll in and attend anger management classes and provide proof of attendance to the court.
The record of the Bell District Court is not included with the record on appeal. Consequently, we have not considered substantive facts set forth by Billy allegedly developed in that record. However, because the events that occurred in that court after the issuance of the DVO are not disputed by the parties and are not substantively relevant to this appeal, we recite those procedural events. --------
On October 21, 2014, Crystal filed a motion to suspend Billy's visitation for failure to maintain his visitation schedule and failure to notify the Department for Community Based Services when he could not be at visitation. On November 7, 2014, the Bell District Court issued an order suspending Billy's visitation.
The DVO expired on April 8, 2016. On April 14, 2016, Billy filed a motion to reinstate visitation in the Harlan Circuit Court dissolution action. Crystal filed a response. After a hearing, the circuit court denied Billy's motion.
The circuit court observed that the record is replete with proof of Billy's past physical abuse of the parties' daughter and noted that Crystal testified Billy had been violent and abusive, especially toward the children. Photographs of the parties' daughter taken after the events in 2011 and 2013 demonstrated that she was excessively beaten by Billy.
The circuit court interviewed daughter and her fourteen-year-old brother. Both children cried during the interviews and described physical abuse by Billy. The daughter described beatings by Billy and testified that, as a result of the abuse in March 2013 when Billy injured her eye, she now wears glasses. The daughter also described physical abuse by Billy against Crystal. The circuit court found as follows:
It is no stretch to say both children are frightened of their father and do not want to be around him in any fashion. Given the record as a whole, especially the emotional and negative reaction of the children at the prospect of resuming visitation, this Court finds that a renewal of visitation would, at a minimum, seriously endanger the children's emotional, if not physical health—that their welfare would be endangered by renewed visitation with their father. The Court further finds that the best interest of the children will be served by denying Billy Brannon's motion for visitation, at least at this time.
"[T]his Court will only reverse a trial court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). An abuse of discretion occurs only if the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co., v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). However, the trial court's legal conclusions are reviewed de novo. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003).
Billy argues the trial court erred as a matter of law when it failed to apply the presumption that he is entitled to reasonable visitation. The foundation of his argument is that when the DVO expired, his timesharing reverted to the timesharing schedule in the original custody order which could only be modified if it served the best interest of the children. Under his theory, he is entitled to the presumption that visitation is in the children's best interest.
Kentucky statutory law reflects the view that "a child needs and deserves the affection and companionship of both its parents." Smith v. Smith, 869 S.W.2d 55, 56 (Ky. App. 1994). "Under KRS 403.320(1), the noncustodial parent has absolute entitlement to visitation unless there is a finding of serious endangerment to the child. No 'best interests' standard is to be applied; denial of visitation is permitted only if the child is seriously endangered." Hornback v. Hornback, 636 S.W.2d 24, 26 (Ky. App. 1982).
The requirement that a parent's entitlement to visitation exists only if the child is not seriously endangered is repeated in KRS 403.320. KRS 403.320(2) provides: "If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health." KRS 403.320(3) provides that modification of a visitation order may occur if it "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."
The record reveals that Billy has committed violent acts against his daughter which have been substantiated by social services agencies as well as the court. When given the opportunity to continue visitation after the first act of violence against his daughter, he again engaged in violent behavior toward her. Although Billy suggests in his brief that Crystal is to blame for his children's fear of him, the record demonstrates that Billy's violent actions caused their fear and reluctance to have visitation with him.
While Billy alleges he attended parenting classes and anger management classes, he has not cited to the record where evidence of such corrective actions were taken. There is nothing in the record to demonstrate that the children will not again be physically abused by Billy. There is only his self-serving assertion that he would not again become violent if granted visitation. We cannot say that the trial court abused its discretion when it declined to resume Billy's visitation at this time.
Based on the foregoing, we affirm the Harlan Circuit Court's findings of fact, conclusions of law and order denying Billy's motion to resume visitation.
ALL CONCUR. BRIEF FOR APPELLANT: Ronald C. Cox
Harlan, Kentucky BRIEF FOR APPELLEE: John L. Grigsby
Barbourville, Kentucky