Opinion
NO. 2015-CA-001257-ME
06-03-2016
RADFORD BREEDING APPELLANT v. ANDREA HALL APPELLEE
BRIEF FOR APPELLANT: Radford Breeding, pro se Pinetop, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE DWIGHT STACY MARSHALL, JUDGE
ACTION NO. 12-CI-00058 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Radford Breeding, pro se, appeals from an order of the Knott Circuit Court, Family Court Division, entered July 20, 2015, awarding joint custody of his eight-year-old son to him and the child's mother, Andrea Hall Morey, with Morey being named primary residential custodian. Breeding alleges the trial court erroneously treated the issue as a custody modification rather than an initial custody determination, failed to make findings under KRS 403.270, and violated his due process rights by preventing him from cross-examining the guardian ad litem (GAL) he requested be appointed. Having reviewed Breeding's brief, the law and the record, we affirm.
Hall married Thomas Morey in August 2014. She will be referred to as Morey in this Opinion since two other witnesses are named Hall.
Kentucky Revised Statutes.
FACTS
Although never married, Breeding and Morey are the natural parents of a son, Mason, born February 7, 2007. Morey and Breeding occasionally lived together between February and November 2007, eventually separating because Morey disapproved of Breeding's drug use and criminal record. There is no indication the parties had a formal custody agreement.
In her affidavit, Morey states Breeding's name appears on Mason's birth certificate, but acknowledges paternity testing has not occurred and paternity has not been legally established.
In February 2012, Morey allowed Breeding to have the child for the weekend. According to an affidavit filed by Morey, Breeding took Mason to either Louisville, or New Albany, Indiana, intending to keep him permanently. Breeding returned the child to Morey after being served a warrant alleging custodial interference, a charge that was later dismissed.
In March 2012, Morey petitioned for custody of the then-five-year-old child, alleging she had been her son's sole provider since birth and Breeding had enjoyed visitation with the child only when he lived in Kentucky with his mother. Morey works a float shift at Hazard Appalachian Regional Healthcare; Breeding is unemployed. Morey asked for child support and that any visitation awarded to Breeding be supervised. Filed with the petition were Morey's affidavit and a motion for temporary custody.
An order was entered April 2, 2012, giving Morey temporary custody and child support. A second hearing was docketed for two weeks later. Breeding was allowed visitation in his mother's home in Kentucky on specified dates and allowed telephone contact with his son.
Breeding answered the petition on April 3, 2012, seeking joint custody, to be named primary residential custodian, and standard visitation for Morey. He also asked that instead of him paying child support to Morey, she be required to pay child support to him.
The same answer bearing an earlier service date was filed April 9, 2012.
On April 11, 2012, Breeding filed his own motion for custody, temporary visitation, telephone contact and temporary unsupervised standard visitation with Mason in his home in New Albany, Indiana. Lengthy affidavits from himself and his fiancée, Sherry Hall (Sherry), accompanied the motion. On May 7, 2012, Breeding was ordered to pay Morey $158.13 in monthly child support, an obligation he has never fulfilled.
On May 15, 2012, Breeding filed a written motion for appointment of a GAL "to represent the best interests of" Mason. That same day, he filed a motion to restrict Peggy Conley, Mason's maternal grandmother, from having contact with the child, transporting him or babysitting him, the insinuation being she had driven erratically with Mason in the car.
On June 11, 2012, Hon. Dinah Bowling was appointed GAL. The order of appointment did not set parameters for the representation, but directed only that she speak to Mason and any parties she deemed appropriate, and report to the court. When court convened on June 18, 2012, Bowling orally stated she had spoken with Mason but did not put much stock in his often fanciful statements. Bowling advised the court she had seen no indication of poor driving by Conley, after which Breeding withdrew his motion to restrict Conley's access to the child.
The crux of this appeal is the final hearing which occurred on two separate days, February 2, 2015, and April 20, 2015. The purpose of the hearing was Breeding's motion for custody and his motion to be named primary residential custodian. Morey maintained no change was needed.
Breeding testified first, describing himself as being 38 years old and living in New Albany, Indiana, with Sherry whom he has dated since 2011. He is trying to start a handyman business.
Because Morey returned to work when Mason was six weeks old, Breeding maintained he was Mason's sole keeper for two years. When Mason turned three, Breeding ceased living with Morey and moved into his mother's home, where he kept his son for another year before moving in with Sherry.
Breeding acknowledged having a drug problem, but claimed he had been clean for three years, having been weaned off drugs using methadone. He admitted being in four separate rehabilitation centers and having a criminal record. In the last five years, he had been probated for reckless driving and third-degree possession of a controlled substance (Xanax) in Clark County, Kentucky, and had acquired a robbery charge in Jefferson County, Kentucky, in 2014 which was still pending. He testified he had spent 28 days in jail on the robbery charge before making bond. During that time he missed visits with Mason, but did not tell Morey he was in jail.
Breeding said he had been receiving monthly psychological counseling during the last four months, having been diagnosed with bipolar disorder and severe anxiety. He admitted having poor recollection and blacking out. When asked on cross-examination whether he was doctor-shopping for more drugs, he responded, "No, I'm not." He testified he had worked at a lawn care service and then at an auto parts store since moving to Indiana; both jobs lasted a couple of months before he was fired. He admitted Sherry had supported him since 2012.
Breeding stated Mason is "my life," but it is hard to plan visits because Morey does not provide her work schedule far enough in advance—Breeding has his son the two weekends each month Morey works. Breeding said he and Sherry work with the PTO at Mason's school. While not PTO members, they take snacks to the school on Fridays and work at PTO dances. He described Mason as being a good student, but was worried because he has no school friends.
In response to questions from the GAL, Breeding was more specific about his activities at Mason's school—he distributes snacks, cleans up, and spends time in the classroom with his son. He also confirmed he does all the driving (between Littcar, Kentucky, and New Albany, Indiana) to visit Mason.
Breeding introduced a series of photos showing him and Mason participating in various activities. Breeding identified his current concerns as Mason not being cared for by Morey—his mother—but by someone else or by no one. Since Morey had married and moved to a new home with her new husband, Conley was no longer nearby to watch Mason, and Breeding described him as often appearing to be hungry.
Breeding said he interacts with his son via FaceTime which enabled him to see Mason playing in a room with an uncovered breaker box and exposed wires. Based on FaceTime sessions, Breeding described Mason as being "sad" when he is in Morey's home.
On redirect, Breeding explained visitation is not always supervised and the child is rarely taken to Indiana. He maintained he had suffered no blackouts since being prescribed medication, and saw no reason his bipolar disorder and severe anxiety should exclude him from being his son's primary custodian.
Breeding stated he has his own health insurance through an Obamacare subsidy and Morey carries insurance on Mason. On recross, Breeding stated Mason was not covered under his health plan because Morey had never signed a required paper. When reminded of a 2012 order directing him to pay monthly child support in the amount of $158.13, Breeding said he was unaware of the order. Breeding admitted he does not know whether he still suffers from blackouts since someone must tell him one has occurred.
Sherry testified next. She and Breeding attended school together in Kentucky. She has lived in Indiana since 2010. She is a licensed attorney working as a college professor. She has known Mason, whom she called her "buddy," since November 2007. She said both she and Breeding are PTO members and she usually communicates with Mason's teacher via Facebook.
In describing Breeding's behavior, she stated she had noticed him doing "odd" things—putting items in the wrong place; placing dirty dishes in the cabinet—for a period of time. She said everything came to a head in March 2014 when Breeding was charged with robbery. Immediate psychiatric help was sought, but unavailable. Sherry believed Breeding had chosen and called the psychiatrist he currently sees on his own volition.
Since Breeding was diagnosed with and began receiving medication for generalized anxiety, Sherry has noticed no odd behavior and he is a very different person with a different demeanor when medicated. She stated she was unaware of Breeding knowingly abusing any drug since 2011, had witnessed no overdoses, and had not seen him high on drugs. She acknowledged he had encountered problems while taking methadone, but she did not recognize his odd behavior as being problematic. She did not think Breeding's odd actions would impact Mason. She said Breeding drives his son more than she does, but he has had no accidents, no tickets, and no blackouts while at the wheel.
Sherry was, however, concerned about Mason living in Morey's home, so concerned she and Breeding contacted Social Services, perhaps in 2012, without good results. Based on what she saw from a FaceTime chat with Mason, she said kitchen cupboards and the refrigerator were bare and the electrical box was unsafe. She described Mason as a "sensitive" child who wants constant attention. She voiced no concerns about Breeding caring for his son.
Sherry testified she began setting up a handyman business for Breeding in mid-2014—a partnership she predicted would be a going concern in Spring 2015. She pays the couple's bills—vehicle, insurance, home, travel to and from Kentucky for visitation; Breeding even uses her employee assistance benefits. She stated she did not know whether Breeding had paid any child support, but said she would be willing to pay it on his behalf.
This benefit gives employees and dependents access to various services including budgeting assistance and psychological counseling.
In describing Breeding's drug use, she said he began attending the Southern Indiana Treatment Center in 2011, but "we chose to stop," without completing the program, when he was arrested for robbery. Breeding had only recently begun tapering off drugs with the use of methadone, and "detoxed" in jail. At the conclusion of Sherry's testimony, court was adjourned because court is not held after 4:00 p.m. for building security reasons.
The final hearing resumed April 20, 2015, with Breeding calling Acacia Hall, Morey's seventeen-year-old daughter, as the first witness of the day. Acacia lives in Littcarr with her mother and Thomas Morey (Thomas), her stepfather; Mason; and her seventeen-year-old stepbrother. She testified she did not always get along with her mother, but their relationship improved as she grew and matured. Acacia stated either her mother or Thomas's father, who lives about five minutes away, usually care for Mason.
Mason became very upset once when he expected Breeding to visit and learned the trip had suddenly been cancelled. Acacia said Mason occasionally becomes upset when told to clean his room, do his homework or go to bed. Morey sometimes raises her voice to Mason, but does not scream at him. She described Mason as "shy" and admitted her relationship with him "could be better." She explained they occasionally argue, like when her dog gets his Legos and she tells him to put his Legos away. She said Mason often plays his Xbox in the living room. Morey fixes dinner and there is plenty of food in the house.
Morey was the last witness to testify. She stated she mainly works the night shift from 11:00 p.m. until 7:30 a.m., but occasionally works 8:00 a.m. until 4:30 p.m. Usually on the last Thursday of the current schedule she receives her work assignment for the next 28 days. Once the schedule is published and revised to eliminate conflicts, she texts the weekends she will be working to Breeding. She has Mason the weekends she does not work.
Morey said she is not a Jonesport Elementary PTO member, but has attended school events Breeding did not attend. Mason's first attempt at an extracurricular event—baseball—had occurred the previous week; he did not wish to finish the game. He has missed about eight days of school, but has never been tardy. Mason sees his maternal grandmother, who lives fifteen to twenty minutes away, at least once a week; Morey's father-in-law lives less than one mile away. Once Conley backed into a ditch while Mason was in the car; once Morey backed into a guardrail, scratching her car, but Mason was not in the car.
Morey described Mason's school schedule as being "more routine" this year, but his classes did not seem to be as challenging. The child occasionally cries about going to school, but he goes. To discipline him, she takes away items.
Thomas is a Physician Assistant at the same hospital at which Morey works. He usually works 5:00 p.m. until 1:00 a.m., but occasionally is assigned to work 10:00 a.m. until 11:00 p.m. About three nights a week, Thomas's father babysits because both he and Morey are out of the house. Acacia may occasionally watch Mason for short periods of time.
Morey testified she sometimes feels overwhelmed and has anxiety attacks—but none severe enough to seek treatment; she simply seeks pastoral counseling. Occasionally she cannot sleep—which she attributes to working different shifts. She denied any mental health problems in her immediate family, but acknowledged a sister has a drug problem.
Morey said she worries a lot about Mason and desires more communication with Breeding. She fears Breeding may drive while impaired with Mason in the vehicle. Exchanges are quick—lasting only one to two minutes—so she cannot develop a sense of whether Breeding is impaired. Breeding missed multiple weeks of visitation in April 2014, but she was unaware his absence coincided with his arrest for robbery. Breeding has since told Morey he has no memory or recollection of the actions leading to the robbery charge. Morey fears Breeding will have another episode while Mason is with him. She does not oppose Breeding having summer visitation with the child.
Morey learned Mason had visited with Breeding in Indiana several times only because Mason mentioned it. She could have gone to court to enforce the visitation order, but wanted her son to spend part of the summer with his father. So long as she has enough notice of Breeding's plans, she tries to accommodate his requests. She doubted she could meet Breeding at a halfway point to exchange Mason for visitation because Breeding changes the plan without warning. On cross-examination, she said Breeding has never paid child support.
An order entered April 27, 2012, says Breeding "shall have visitation according to the Knott County Family Court Standard Visitation Guidelines," but modifies the standard guidelines to reflect Morey's work schedule. The order then specifies, "[a]ll such visitation shall take place at the home of Radford Breeding's mother in Knott County, Kentucky."
Breeding took the stand again—very briefly—in rebuttal. He admitted causing a fender bender in February 2015, but denied ever being charged with DUI. When cross-examined, counsel reminded Breeding he had previously testified he had been charged with operating under the influence in Clark District Court on September 14, 2012, although he was ultimately convicted of reckless driving.
When rebuttal ended, no other witnesses were called and the court asked for summations, beginning with the GAL on behalf of Mason. She stated she had no doubt Mason loved both parents and while he told her he had fun at Breeding's home, she was unconvinced Breeding should be awarded custody.
Breeding's attorney acknowledged lack of communication between the parents was a problem and suggested Morey did not know the visitation parameters. She asked that Morey provide her work schedule in advance to avoid confusion; divide travel evenly for visitation; remove the restriction that all visits occur in the home of Breeding's mother; allow Breeding greater contact with the child; apprise Breeding of school events; and give Breeding five weeks of summer visitation.
A review of the record indicates Morey's testimony was at least partially correct—all visitation was to occur in the Knott County, Kentucky, home of Breeding's mother—not in Louisville or Indiana as occasionally happened. --------
Morey's attorney agreed to provide Morey's work schedule, Mason's extracurricular activities and medical information. She even agreed to allow visits to occur in Indiana, but asked that Breeding not drive with the child in the vehicle. She argued all responsibility should not fall upon Morey, especially when Breeding is contributing nothing toward the support of his son while he is with Morey. Arguing four weeks was more than sufficient summer visitation, she opposed Breeding's request for five weeks, prompting Breeding's attorney to explain the additional week was requested to offset times Breeding did not have the child on a holiday—which often occurs on a Monday.
The court noted its appreciation for forward thinking, but stated until an issue with holidays was established—which the attorneys could argue—the court would not issue an advance ruling. The court also praised both parents for evincing a desire to work on behalf of their child.
At the close of argument, the trial court took the matter under advisement, directing both parties to submit proposed orders. Based on the record provided to this Court, neither parent submitted a proposed order.
On May 18, 2015, the trial court entered a five-page order containing findings of fact and conclusions of law pertaining to Breeding's "motion to modify custody." Many of the factual findings recounted Breeding's testimony such as, he believed his son wanted to live with him; he was involved with his son's school—a sentiment Sherry echoed; despite a long history of drug abuse, Breeding had completed a three-year drug rehabilitation program by taking methadone that ended with his arrest; he had missed visits with his son without explaining the true circumstances to Morey; having been diagnosed with bipolar disorder and severe anxiety, he now takes prescription medication; he has not held a steady job since 2012; and, Sherry supports him. The court noted Breeding had introduced photos of his son which the court discounted.
The court mentioned Morey's testimony that for about one year Breeding had been taking Mason to Indiana for visits, but she learned of the out-of-state excursions only after-the-fact when the child innocently revealed what was happening. Morey's teenage daughter admitted she had quarreled with her mother when she was younger, but they get along better now that she has matured; she doesn't always get along with Mason; there is always food in the house; Mason does not go hungry; and, to discipline Mason, Morey takes items away from the child. The court found both parents had testified Mason was shy. The child does well in school, and while he makes a fuss about going to school some mornings, he does attend. Morey monitors Mason's homework and speaks with his teachers. Morey is concerned about Breeding driving with Mason. Morey knew nothing about Breeding's arrest for robbery, blackouts or medication. Finally, the court found the GAL did not believe the statutory requirements for custody modification had been satisfied.
As a result of the foregoing findings, the court overruled the motion to modify custody; created a visitation and contact schedule for Breeding; prohibited Breeding from transporting Mason until he had proved his medication was stabilized; required Breeding to tell Morey where visitation would occur; and, required Morey to give her work schedule to Breeding within 48 hours of receiving the final schedule.
On May 28, 2015, Breeding moved to alter, amend or vacate the order and requested more specific findings of fact. Flaws noted included: the court applied the standard for a custody modification when none had been requested—the parties were seeking an award of permanent custody, and the court had failed to make a finding of the child's best interest. Breeding also asked the court to find he has an "excellent" relationship with his son, is active in the boy's life and loves his son; award him four weeks of summer visitation instead of only three (he originally requested five weeks); he should have reasonable telephone contact with his son; and the point of exchange should be a halfway point between Littcarr and New Albany so Breeding can better exercise visitation with his son. Breeding also sought guidance on what proof would convince the court his medication had stabilized so the restriction on him transporting Mason could be lifted since rheumatoid arthritis makes it difficult for Sherry to travel.
Breeding's motions were heard May 28, 2015. On June 15, 2015, both parents were again directed to submit proposed orders, but none appears in the record. On July 13, 2015, Morey moved to suspend Breeding's visitation, stating he had become "unpredictable" and on multiple occasions had not returned the child as agreed.
On July 20, 2015, the trial court entered a revised order acknowledging "the incorrect standard was referred to in the original order dated May 18, 2015, however, the conclusions and order the Court relied upon shall not be modified." Many findings of fact in the revised order parroted the original order, but there were key distinctions. The new version reflected a "custody determination" rather than a modification; found Mason had been a lifelong Kentucky resident and his parents had increased and modified visitation parameters on their own; the GAL had reported it was in the child's best interests to remain with Morey in Knott County; and, the GAL had evinced concern about Breeding's recent criminal charges and history of drug abuse. Thereafter, the court ordered Breeding and Morey to share joint custody, with Morey being named primary residential custodian; Breeding would have visitation two weekends each month, and three weeks of summer visitation provided he gave Morey sixty days advance notice of the date he wished to exercise visits. The point of exchange remained the same, but Breeding was given only a thirty-minute window in which to deliver the child to Morey. Breeding has appealed from the revised order.
ANALYSIS
Trial courts are vested with broad discretion in matters concerning custody and visitation. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). Further, in the absence of an abuse of discretion, we will not disturb a trial court's decision. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky. App. 2002) (internal quotation marks omitted). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted). The test is not whether we as an appellate court would have decided the matter differently, but whether the trial court's rulings
were clearly erroneous or constituted an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). Addressing the appellate review of a trial court's findings of fact, the standard is well-established. Questions as to the weight and credibility of a witness are purely within the province of the court acting as fact-finder and due regard shall be given to the court's opportunity to judge the witness's credibility. Kentucky Rules of Civil Procedure (CR) 52.01; Sherfey, 74 S.W.3d at 782 (Ky. App. 2002) (overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008)). Therefore, factual determinations made by the circuit court will not be disturbed on appeal unless clearly erroneous. CR 52.01. Findings of fact are not clearly erroneous if supported by substantial evidence. Sherfey, supra. Finally, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether the ruling was correct as a matter of law. Laterza v. Commonwealth, 244 S.W.3d 754, 756 (Ky. App. 2008). "Under this standard, we afford no deference to the trial court's application of the law to the facts[.]" Id. (Citation omitted.)Glodo v. Evans, 474 S.W.3d 550, 552-53 (Ky. App. 2015). With the foregoing standards in mind, we consider Breeding's claims.
Breeding's first allegation is the trial court applied the wrong standard and made insufficient findings under KRS 403.270. We disagree.
In its revised order, the trial court acknowledged citing the wrong standard in its initial order. However, it corrected its mistake in the revised ruling, confirming it was making a "custody determination" rather than considering a request for modification.
KRS 403.270(2) enumerates several factors a court must consider in determining custody, but not all factors listed in the statute apply to all cases. Only five of the statutory factors—plus the child's best interests—had any bearing on this case.
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. 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 custody; (b) The wishes of the child as to his custodian; (c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests; (d) The child's adjustment to his home, school, and community; [and] (e) The mental and physical health of all individuals involved[.]KRS 403.270(2).
The revised order twice mentions Mason's best interests—something Breeding claims, "was not mentioned in the findings at all." It is first mentioned in a reference to the GAL's report, and second in the court's conclusion joint custody with Morey serving as primary residential custodian was best for the child.
As far as the wishes of the child and the parents, it was evident both parents wanted custody of the child and wanted the other parent to have visitation. As reflected in the factual findings, Breeding had testified he thought the child wanted to live with him; there was no other testimony on this point, other than photos in which the child appeared to be enjoying himself, often with Breeding.
Multiple witnesses testified about Mason's relationships with family members—he occasionally argues with his mother about going to school, putting away his toys, cleaning his room and doing homework; he sometimes argues with his older stepsister about "sibling stuff"; his maternal grandmother helped him with homework until he moved to a different home; Morey's father-in-law watches the children when neither Morey nor her husband is home; Morey cooks for Mason and there is plenty of food in the home. Despite being a "shy" child by all accounts, Mason is thriving in his current school. Many of these facts were recited in the order.
There was no testimony Mason was not adjusted to his home, school or community. There was, however, a finding that as a lifelong Kentucky resident, Knott County was the only place the child had known as home.
Finally, the mental and physical health of those involved, particularly the adults, dominated the testimony. Breeding acknowledged being a lifelong drug addict, but now attributes his habit to the recent revelation he suffers from bipolar disorder and severe anxiety for which he is being medicated. He admitted having blackouts, but could not personally confirm they had ceased because he must rely on someone to tell him whether one has occurred. In April 2012 he was arrested for robbery but had no memory or recollection of what led to the event. Even Sherry had noticed Breeding doing quirky things, but did not consider them to be harmful or problematic at the time. Breeding has never paid child support; has maintained no steady employment since 2012; and exists on Sherry's kindness, financial support and legal expertise.
Morey was not without her own issues. She admitted feeling overwhelmed and anxious at times, and attributed occasional sleepless nights to working different shifts. It is just as likely those sleepless nights result from not knowing where Breeding had taken their son and whether Breeding was driving while impaired or blacked out.
Civil Rule 52.01 states in pertinent part, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Furthermore, findings of fact are clearly erroneous only if they are manifestly against the weight of the evidence. Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967). These directives are clearly applicable to child custody cases. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974).Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). We discern no clear error in the trial court's factual findings or in their sufficiency.
Breeding suggests the trial court favored Morey and did not give him equal consideration. We are baffled by Breeding's discussion of whether an attorney may have ghost written the order the trial court entered. Both sides were directed to submit proposed findings—on two separate occasions—but neither did. Perhaps Breeding knows something we do not, but unless matters appear in the record, they are beyond our consideration. Even Breeding acknowledges the record is devoid of proposed orders. It is the appellant's responsibility to provide a complete record to this Court on appeal. Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008). As the appellant, that responsibility rests squarely and solely upon Breeding. When a record is incomplete, we assume the omitted record supports the trial court. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Realistically, the most that can be said of Breeding's claim is he simply disagrees with the trial court's result. Breeding points out some testimony was not reflected in the final order, but we are unaware of any requirement that a trial court regurgitate two days of hearing testimony verbatim and in toto. Furthermore, had Breeding wished to guide the trial court in its decision, he should have filed proposed findings of fact, as twice directed by the court—something we can only assume he did not do, because nothing appears in the record.
Breeding takes the trial court to task for not giving him more summer visitation—he originally asked for five weeks, but the court awarded him only one week in summer 2015, and three weeks in successive years. He challenges the court's stated rationale,
[a]s [Breeding] has not been properly notifying [Morey] of the scheduled vacation time during this summer break, [Breeding] shall receive visitation during this summer for one (1) seven (7) day period.Breeding argues this cannot be the basis for the court's decision because "the alleged events were at a time after the hearing and no testimony about such events had, at that time, or at any time after, been given before the court." We note that a week prior to entry of the revised order on July 20, 2015, Morey moved the court to suspend all visitation alleging Breeding had become "more unpredictable in exercising the parenting time schedule" and provided examples of Breeding saying he would do something, but not following through on the agreed upon plan. The same day the revised order was entered, Morey re-noticed a motion to modify visitation to be heard on August 17, 2015. We do not know the outcome of that hearing, but having reviewed the record and the law, we simply have no grounds upon which to conclude the trial court erred or abused its discretion in giving Breeding less summer visitation than requested. We will not second guess the trial court.
Furthermore, the trial court stated on the record it would not anticipate Monday holidays being an issue—the reason Breeding's counsel gave for requesting an extra week of visitation—until he was shown it was an issue. Again, that could have been pointed out in the proposed findings, had they been submitted as the court directed.
Breeding's other issue is the trial court denied him a full hearing by preventing him from cross-examining the GAL and adjourning the hearing before he had called all his witnesses. We disagree as to both allegations.
First, Breeding requested appointment of a GAL to determine Mason's best interests. Pursuant to that request, a GAL was appointed to represent Mason. The GAL was directed to speak with the child and any party she deemed appropriate, and report to the court by June 18, 2012, the date Breeding's motion to restrict Conley from having contact with her grandson was to be heard. Bowling was appointed Mason's GAL; she was never appointed as a Friend of the Court (FOC) nor directed to investigate matters on behalf of the trial court. Breeding's cited case of Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), warns against a trial court appointing the same person to serve as both a GAL for a child and an investigator for the court because those roles are often inconsistent with one another, usually require different skill sets, create an ethical dilemma for the GAL/FOC, and create a conflict between a party's due process right to confront evidence and an attorney's duty to represent his client.
Morgan is inapplicable to the facts before us for at least two reasons. First, no one, certainly not the GAL, was ever directed to investigate matters on the court's behalf. In describing the function and role of a GAL, Morgan explains,
the GAL should undertake a thorough examination of the custodial circumstances, but unlike the investigator the GAL is the child's agent and is responsible, as is counsel for the parties, for making motions, for introducing evidence, and for advancing evidence-based arguments on the child's behalf. The GAL should not file reports, testify, make recommendations, or otherwise put his own or her own credibility at issue.Id. at 114. In her capacity as Mason's GAL, Bowling attended hearings and cross-examined witnesses—on behalf of her client—conduct wholly consistent with Morgan's explanation of what a GAL should do.
Second, Morgan arose in the context of a trial court denying a party's request to cross-examine the dual GAL/FOC—cross-examination being the party's only opportunity to challenge a recommendation he had made to the court. Here, Breeding never asked to cross-examine the GAL and palpable error review, though requested by Breeding, would be wholly inappropriate as he has not demonstrated "manifest injustice" and we discern none. CR 61.02. Under the facts presented—appointment of a GAL at a father's request to determine his minor son's best interests—Morgan does not require reversal for a new hearing.
Finally, we see no evidence the court adjourned the hearing due to time constraints as Breeding claims. The first day of the hearing was adjourned just before 4:00 p.m. as was the court's common practice due to security issues in the courthouse. When the hearing resumed two months later, the court heard about two hours of testimony. Then, at 2:56:16 p.m., the court inquired whether there were any additional witnesses to be called by Breeding, Morey or the GAL. While no one chose to call a new witness, Breeding was called briefly in rebuttal. Before Breeding's attorney began, the court calmly stated, "we're getting close to time, but we'll see what we can do here, counsel, hate to see you set another date." At that point, Breeding testified less than three minutes, answering all questions posed to him on both direct and cross-examination. The court then asked again whether anyone wished to call another witness. With no one indicating a desire to offer more testimony from anyone, the court asked for summations, beginning with the GAL on behalf of Mason at about 2:59:26 p.m. and followed by statements from counsel for Breeding and then for Morey. There being nothing else offered by any party, shortly after 3:08 p.m., court was adjourned for the day.
We are a Court of review. Without a ruling from the trial court we have nothing to review. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). At no point in the record did Breeding attempt to offer testimony from his mother; neither day of trial was "called due to the time constraints;" and counsel were never told to "limit closing statements" due to a "time crunch"—all claims made by Breeding in his brief. Citations to the hearing provided by Breeding as proof of these claims simply do not support them. It is as if Breeding watched a different trial than the record provided to us. There being no indication the trial court imposed and enforced strict time limits, we say nothing more on this claim.
As stated at the beginning of our analysis, a trial court has broad discretion in awarding custody. Discerning no abuse of that discretion, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Radford Breeding, pro se
Pinetop, Kentucky BRIEF FOR APPELLEE: No brief filed.