Opinion
NO. 2015-CA-001317-ME
12-22-2016
RON BROWN AND DANA BROWN APPELLANTS v. ANDREW BROWN AND NICOLE TOMLINSON APPELLEES
BRIEF FOR APPELLANTS: Mary-Ann Smyth Corbin, Kentucky BRIEF FOR APPELLEES: Marcia A. Smith David O. Smith Corbin, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE WAYNE THOMAS LIVELY, JUDGE
ACTION NO. 09-CI-00467 OPINION
VACATING AND REMANDING
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BEFORE: JONES, D. LAMBERT, AND MAZE, JUDGES. JONES, JUDGE: The Appellants, Ron and Dana Brown ("Grandparents"), appeal from a custody order of the Whitley Circuit Court. Having carefully reviewed the record, we must vacate and remand because the circuit court's order does not comply with Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011) and Keifer v. Keifer, 354 S.W.3d 123, 124 (Ky. 2011), which require written findings of fact in all matters affecting child custody.
I. BACKGROUND
The Appellees, Andrew Brown and Nicole Tomlinson ("Parents"), are the biological parents of a child born in April of 2009 ("Child"). By order entered April 5, 2010, Grandparents were determined to be the Child's de facto custodians, and were awarded sole custody. That order also set forth certain requirements the Parents would need to satisfy before they could seek visitation with Child.
An abundance of court filings followed. Mother filed a motion to vacate the order, which was denied on May 4, 2010, and a motion for visitation and custody, which was denied on September 14, 2010. Mother was eventually granted visitation with Child in March of 2011; however, two months later the court stopped her visitation following a motion by Grandparents alleging that Mother's home was dangerous and an unfit environment for children. While not indicated in the record, it appears that during this time Father was allowed unlimited visitation with Child at Grandparents' house. Between November 2011 and June 2012, Mother made three more motions for visitation with Child, the last of which was accompanied by an affidavit from Father in which he gave a litany of reasons why Child should not be allowed visitation with Mother. All of Mother's motions were denied.
It seems Parents resolved whatever differences they had between them shortly thereafter. On January 17, 2014, Parents filed motions with the court requesting visitation with Child and appointment of a special judge. Parents then moved the court, in May of 2014, to set aside all orders granting Grandparents custody of Child. On July 1, 2014, the court appointed a Guardian Ad Litem ("GAL") for Child and entered an order giving Parents visitation with Child. On July 24, 2015, the special judge held a hearing on all pending motions, at which testimony was heard from Parents, Grandparents, and the Child's counselor and school teacher regarding the Child's best interests. The court entered a final order on July 30, 2015, granting the parties joint custody of Child and granting Parents visitation. This appeal followed.
II. ANALYSIS
We begin and end our analysis with the trial court's written order. The order awards "joint custody" of Child to Parents and Grandparents. It then goes on to detail how the parties are to share time with Child as well as how the parties are to share Child's expenses. However, it is undisputed that the order does not contain any findings of fact.
Parents assert that Grandparents failed to preserve the lack of factual findings because they did not move the trial court for additional findings of fact within ten days as permitted by CR 52.02. The problem with this argument is that the trial court's order does not contain any factual findings. "CR 52.01 requires that the judge engage in at least a good faith effort at fact-finding and that the found facts be included in a written order. Failure to do so allows an appellate court to remand the case for findings, even where the complaining party failed to bring the lack of specific findings to the trial court's attention." Anderson, 350 S.W.3d at 458.
Kentucky Rules of Civil Procedure.
From the face of the order, we are unable to even determine whether the trial court concluded that joint custody would be in Child's best interests. This is a fundamental defect that we cannot ignore on appeal. See Keifer, 354 S.W.3d at 127. Therefore, we must vacate and remand. On remand, the trial court must consider custody and visitation in light of KRS 403.270 and KRS 403.320, make appropriate findings, and then enter an order that properly reflects in writing the court's findings of fact and conclusions of law to support its determination.
Kentucky Revised Statutes. --------
In addition to the absence of factual findings, Grandparents also argue that the trial court erred because it allowed the GAL to make a closing argument in favor of joint custody. The GAL did not prepare a written evidentiary report or testify under oath. She made a closing argument as counsel for Child. As such, she functioned within the confines of her role as a GAL and did not cross over into acting as a fact or expert witness. In fact, our Supreme Court has specifically stated that one of the roles of a GAL is "advancing evidence-based arguments on the child's behalf." Morgan v. Getter, 441 S.W.3d 94, 114 (Ky. 2014). Along this vein, the GAL was permitted to argue that joint custody was in Child's best interests so long as the argument was based on the evidence in the case.
Finally, Grandparents argue that the trial court disregarded the testimony of various witnesses and evidence. As explained above, it is impossible to tell from the written order what evidence, if any, the trial court relied upon. Suffice it to say, it is within the trial court's discretion to believe some evidence to the exclusion of other evidence. Moore v. Asente, 110 S.W.3d 336, 355 (Ky. 2003). A trial court does not err in weighing the evidence, as long as it issues "findings that are supported by substantial evidence." Id. at 354.
III. CONCLUSION
For the reasons set forth above, we vacate and remand this matter to the Whitley Circuit Court for specific findings of fact and separate conclusions of law.
ALL CONCUR. BRIEF FOR APPELLANTS: Mary-Ann Smyth
Corbin, Kentucky BRIEF FOR APPELLEES: Marcia A. Smith
David O. Smith
Corbin, Kentucky