Opinion
NO. 2019-CA-000137-ME NO. 2019-CA-000442-ME
01-03-2020
CYNTHIA BOWEN NÉE BURDETTE APPELLANT v. RODNEY BOWEN APPELLEE
BRIEF FOR APPELLANT: Myrle L. Davis Louisville, Kentucky NO BRIEF FILED FOR APPELLEE
NOT TO BE PUBLISHED APPEALS FROM JEFFERSON FAMILY COURT
HONORABLE ANGELA J. JOHNSON, JUDGE
ACTION NO. 17-CI-502430 OPINION
AFFIRMING
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BEFORE: GOODWINE, TAYLOR AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Cynthia Bowen née Burdette appeals from the Jefferson Family Court's orders of June 7, 2018, and September 13, 2018 (in case number 2019-CA-000137-ME), and February 28, 2019 (in case number 2019-CA-000442-ME). In the June 7, 2018 order, the family court awarded Rodney Bowen and Cynthia joint custody of their children with equal timesharing but made Rodney the primary residential parent. In the September 13, 2018 order, the family court remanded the case without ruling on pending motions after Cynthia appealed. After the appeal was dismissed as being premature, in the February 28, 2019 order, the family court denied Cynthia's motion to alter, amend or vacate the custody order. Cynthia argues the family court erred in forcing her to file a custody action when all she wanted was to be the primary residential parent and erred in granting Rodney that status because she established Rodney initially agreed to let her relocate to Lexington with the children and Rodney does not appropriately supervise the children when they are in his care. As the family court properly acted within its discretion, we affirm.
Rodney and Cynthia married in 2010 and have three children: X.B. who was born in 2007, K.B. who was born in 2012, and B.B. who was born in 2015. Rodney's extended family lives in Louisville and Cynthia's extended family lives in Lexington. The children resided with their parents in Louisville since their births. The oldest child attended school in Louisville and all three children attended the same daycare.
The parties agreed to separate shortly after their Louisville rental home was sold and they were given notice that they had to move out by September 7, 2017. Cynthia applied for a job transfer to Lexington with the understanding that the children would be permitted to live with her in Lexington and attend school there. After Rodney and Cynthia separated, Cynthia moved in with her mother in Lexington and brought the children with her. After Rodney vacated the house, he moved in with his mother and then later obtained an apartment.
Rodney filed a petition for dissolution on August 2, 2017, requesting joint custody. Cynthia filed a notice of relocation and a motion to relocate to Lexington with the children.
Rodney filed a status quo motion requesting that the children remain in Jefferson County and that the children be returned to Louisville to start school. While waiting for the resolution of this matter, X.B. and K.B. began school in Lexington.
On August 23, 2017, Rodney's status quo motion was granted. The family court ordered the children returned to Jefferson County and ordered that they attend school in Louisville. The family court also set a hearing on Cynthia's motion to relocate for October 27, 2017.
In her answer, Cynthia requested joint custody but asked that she be the children's primary residential parent and that the children be permitted to attend school in Lexington.
The hearing scheduled for October 27, 2017, was not held. Cynthia argues this occurred because the family court decided that Cynthia could not relocate with the children without filing for sole custody.
On October 31, 2017, Cynthia filed a motion for a custody order making her the primary residential parent and allowing her to move the children to Lexington. Cynthia filed a supporting affidavit expressing concerns about how the children were being supervised by Rodney, asserting that Rodney had agreed to let her relocate with the children and it was best for them to be with her in Lexington because her mother could provide child care. Rodney filed a motion requesting, among other things, that the children not spend the night in Lexington when Cynthia had timesharing.
A hearing on Cynthia's custody motion was held on December 1, 2017, but the two hours allotted proved to be insufficient. The hearing was continued until April 19, 2018, and a friend of the court was appointed. Subsequently, Rodney's attorney was permitted to withdraw, and Rodney became and remained pro se.
At the hearings, the family court heard testimony from Cynthia, Carrie Burdette, Ava Dimitrova, Rodney, and the friend of the court. Cynthia testified extensively about why she thought the children should be with her in Lexington. She testified she was the children's primary caregiver and Rodney often would not return to watch them after his shift ended when she was scheduled to work two hours later, necessitating her mother driving from Lexington to Louisville to watch them at the last minute. Cynthia testified Rodney agreed she could relocate with the children to Lexington and explained that acting in reliance on this understanding, she obtained a job in Lexington and moved there with the children. She testified that the children went to church in Lexington and had friends there and had frequently been cared for by her mother. Cynthia testified she was concerned that Rodney was not properly supervising the children because of incidents in which two of the children had suffered broken bones when in his care and, in one instance, he had not immediately sought medical care. While she emphasized she did not believe he hurt the children, she also testified that years earlier he was arrested for hitting her. Cynthia testified that her mother's home in Lexington was suitable for the children, she was getting her own place and it was better and more economical for the children to be cared for by her mother than to be in daycare.
Burdette (Cynthia's mother) testified as to the suitability of her home and that her family made a basement apartment in it for Cynthia and the children. She testified that the children attend church in Lexington, have friends there and she has provided child care for the children in the past and is willing to care for the children now.
Dimitrova (Cynthia's former coworker) testified about an incident when she observed that the children were left alone in a running car for twenty minutes while Rodney shopped in a store. She admitted she did not talk to Rodney about her concerns but, instead, contacted Cynthia.
Rodney testified that the children lived in Louisville their entire lives and their friends, school, daycare, doctors, and X.B.'s baseball team, which he has been on for seven years, were all in Louisville. He disputed Cynthia's assertion that the children had established ties to Lexington, testifying that prior to Cynthia moving to Lexington, the children seldom visited Lexington. Rodney raised questions about the suitability of Cynthia's home with her relatives and asserted it was better for B.B. to go to daycare where he would be learning rather than be cared for by Cynthia's mother.
Rodney testified that his apartment was suitable for him and the children, with one bedroom with two beds being used for the two older children and the other bedroom with two beds being used for him and B.B. He explained that with his new daytime shift, he was able to care for the children after they got home from school; his mother helped him by taking the children to daycare at 6 a.m. before the school day began, and he picked up the children after school and then retrieved B.B. from the daycare at around 3:30 p.m. each day. Rodney testified he was willing to have joint custody with Cynthia and he liked the current schedule but wanted the children to live in Louisville.
Rodney admitted he left the children in the car while he shopped but only for a few minutes and he could see them while he shopped. He testified the children had received injuries from rough play, but he had always sought appropriate treatment for them when they were hurt.
The friend of the court testified the children were doing exceptionally well in school, the current parenting schedule was working well and that the parties were capable of working together as joint custodians.
In the order entered on June 7, 2018, the family court thoroughly reviewed the evidence before determining that it was appropriate for Rodney and Cynthia to share joint custody after considering the relevant factors under Kentucky Revised Statutes (KRS) 403.270(2). The family court emphasized that it was not to consider conduct of a proposed custodian that does not affect his relationship with the child and explained its findings as follows:
The Court also finds that there is no alleged misconduct by either parent that is likely to adversely affect the children. Although [Cynthia] alleges that [Rodney is] unable to properly supervise the children, this Court does not find that to be true. The children have sustained injuries while in the care of [Rodney]; however, this Court does not believe those injuries were a result of [Rodney's] failure to properly supervise the children. The parties are parents to three young boys who fight and interact physically with each other. While
this Court does not believe this gives the children license to physically abuse or severely harm one another, this Court understands that physical injuries and fights are bound to occur. When they do occur in [Rodney's] care, this Court believes that [Rodney] handles the situation appropriately. [Rodney] has sought medical care for the children and notified [Cynthia] of any injuries or altercations.
Additionally, the Court does not find [Rodney] leaving the children in the car while running into the store to rise to a level of misconduct to adversely affect the children. According to Mauk v. Mauk, 873 S.W.2d 213, [216 (Ky.App. 1994),] the trier of fact must assess the veracity of a witness. This Court finds that [Rodney's] testimony regarding this incident to be more veracious than that of Ms. Dimitrova. This Court believes that [Rodney] ran into the store for merely a few minutes and could maintain visual contact with the children in [his] care while he was in the store.
As to Cynthia's request for relocation, the family court found it was in the children's best interest to primarily reside with Rodney in Louisville, explaining as follows:
The children have resided in Louisville their entire lives and have established their community here. They attend school in Louisville, have friends in Louisville, are members of sports teams in Louisville, have extended family in Louisville, their doctors are located in Louisville, and have resided in Louisville their entire lives. This Court understands that [Cynthia] relocated believing [Rodney] and the children would soon relocate with her; however the best interests of the children standard does not take into account this sort of situation, though the wishes of [Cynthia] are very much understood. This Court also takes into consideration the report from the Friend of the Court which believes that
since the children are doing so well in school in Louisville, that relocating to Lexington would be a huge disruption in their lives.The family court made the parenting schedule, which was basically 50/50 timesharing, the permanent schedule and specified that Rodney was the primary residential parent with Cynthia having parenting time with the children.
The Court understands that the children have extended family in Lexington, attend church there, [and have] friends in Lexington as well, which is why the children should continue to visit there, but a full relocation will be too great of a disruption and thus not in their best interests.
On June 15, 2018, Cynthia filed a motion to alter, amend or vacate presenting both substantive and technical errors. Substantively, she argued: the family court misunderstood why she moved to Lexington and how well the children were integrated into that community because they had friends there and her family already consistently providing child care for them; it was a huge disruption for the children to move with Rodney into his mother's home and later into an apartment compared with living with her family in Lexington; and Rodney failed to seek medical care for B.B.'s broken arm until she convinced him to go. Cynthia also raised new issues about matters that occurred after the hearing.
Before the family court ruled on this motion, Cynthia filed a notice of appeal from the June 7, 2018 order, which made Rodney the primary residential parent. While this appeal was pending, Cynthia asked for a decree of dissolution which would incorporate a mediated agreement.
On August 20, 2018, Cynthia filed an additional affidavit in support of her motion to alter, amend or vacate. She repeated previous allegations and added new allegations regarding her claim that Rodney is not properly supervising the children.
On September 13, 2018, an order was entered remanding the pending motions because the family court lost jurisdiction upon the filing of the notice of appeal. The following month, Cynthia's appeal was dismissed by the Court of Appeals because she did not appeal from a final order or an interlocutory order which contained the finality language allowing an appeal.
Subsequently, Cynthia filed another motion, requesting that the family court enter a decree of dissolution of marriage and rule on her motion to alter, amend or vacate. A decree of dissolution of marriage, which incorporated the mediation marital settlement agreement, was entered on December 26, 2018, but no ruling was made on Cynthia's motion to alter, amend or vacate.
On January 24, 2019, Cynthia filed another notice of appeal. This constituted appeal 2019-CA-000137-ME. She appealed from the June 7, 2018 order granting Rodney the status of primary residential parent and the September 13, 2018 order remanding based on the appeal, inferring that this second order sub silentio denied her motion to alter, amend or vacate.
On February 28, 2019, an order was entered on Cynthia's motion to alter, amend or vacate. The family court granted Cynthia's motion in part to correct the record on technical errors but denied the remaining requests. The family court explained that it could not consider incidents that happened after the hearing as it had not granted any request to reopen the evidence. It also took issue with Cynthia's assertion that the children's lives were not disrupted by living in Lexington and attending school there, stating that the children beginning school in Lexington rather than in Louisville caused a disruption to their lives, and they were doing well in school in Louisville. The family court added finality language.
Cynthia appealed on March 15, 2019, from this order. This constituted appeal 2019-CA-000442-ME. On Cynthia's motion, the Court of Appeals consolidated the two cases.
Technically, it was improper for the family court to enter this order while the case was already pending on appeal, but in the interest of fully addressing Cynthia's arguments we will consider it.
Cynthia argues that the family court abused its discretion in failing to allow her to relocate with the children to Lexington. She takes issue with the October 27, 2017 hearing not being held, stating that she was advised by the court that the hearing was remanded as the proper motion was one for change in custody and not parenting time due to relocation, and argues that the family court abused its discretion in forcing her to file a custody motion as the only way to be heard on relocation.
She also argues that the evidence presented compelled a ruling in her favor at the custody hearing because the family court erroneously found that Rodney's failure to suitably supervise the children does not adversely affect them. Cynthia then proceeds to argue about the interpretation to be given to specific past incidents which were raised at the custody hearing, new incidents that happened after the hearing which were raised for the first time in her motion to alter, amend or vacate (or in her supporting affidavits), and even incidents which apparently occurred subsequently to that time, without distinguishing between these events. She argues that Rodney did not adequately supervise the children when two of them suffered broken bones and the children were left unattended in a running car while he shopped. She also argues that post-hearing, Rodney left the children with an inappropriate caregiver who left them unattended overnight and mentions an event which apparently occurred post-appeal in which she received a recent text from the children's daycare director, relating that X.B. was out of control and Rodney would not discuss his behaviors.
Cynthia also argues about the agreement she had with Rodney to let her relocate with the children and argues that it was not disruptive for the children to relocate to Lexington because they already attended church there and had friends and it was more disruptive to them to take them out of school in Lexington than let them remain there.
We note that Rodney, who continues to be pro se, has not filed a brief. Pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(8)(c):
If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.We have discretion to decide whether to impose penalties for failure to file a brief. Coblentz v. Day, 540 S.W.3d 384, 386 (Ky.App. 2018). However, as explained in Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky.App. 2014), "[w]hile a party's failure to file a brief may be taken as a confession of error, CR 76.12(8)(c), such a sanction is inappropriate in appeals involving child custody or support." We decline to impose any penalty in our review.
We review this decision as to primary residential custodian and timesharing under the best interest standards of KRS 403.270(2), because this determination was made as part of the custody decree. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008); Chappell v. Chappell, 312 S.W.3d 364, 366 (Ky.App. 2010).
Family courts have broad discretion to decide custody and timesharing. Jones v. Livesay, 551 S.W.3d 47, 51 (Ky.App. 2018). "In the absence of an agreement between the parties, the family court has considerable discretion to determine the living arrangements which will best serve the interests of the children." Hempel v. Hempel, 380 S.W.3d 549, 551 (Ky.App. 2012). In reviewing a decision as to where the children will primarily live, we must be highly deferential. Frances, 266 S.W.3d at 758; Hempel, 380 S.W.3d at 551. The family court is in the best position to resolve the conflicting evidence and make the determination that is in the children's best interest. Frances, 266 S.W.3d at 758-59. "If the factual findings underlying the court's determination are supported by substantial evidence, we may not interfere with the family court's exercise of its discretion." Hempel, 380 S.W.3d at 551. So long as the family court properly considers the mandate of KRS 403.270, including giving due consideration to all relevant factors, we will defer to its decision if it is neither clearly erroneous nor an abuse of discretion. Frances, 266 S.W.3d at 759.
Family courts make custody determinations pursuant to KRS 403.270, which provides in relevant part as follows:
(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent . . . . Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child.
If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent . . . has with the child and is consistent with ensuring the child's welfare. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents . . . as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent . . . may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse, as defined in KRS 403.720, has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child's relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program;
. . . and
(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent . . . .
While Cynthia is correct that she did not need to seek to be the children's sole custodian to be heard on relocation, given that she had already relocated and there was no custody order, it was appropriate for a full custody hearing to be held to determine the issues of custody, primary residential parent and timesharing. While Pennington v. Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008), provides standards for modifying custody and timesharing, it controls where there is a prior court order to be modified and does not perfectly apply to the situation where there is no custody or timesharing order.
The Kentucky Family Court Rules of Procedure and Practice (FCRPP) 7(2)(a)(i) and (b)(i) specify that before either a joint or sole custodian seeks to relocate "written notice shall be filed with the court and served on the [other parent]."
Cynthia stated at the hearing that she wanted to be the person making the decisions for the children and so it appears that she was seeking sole custody even if initially she was only seeking to be the children's primary residential parent.
Although the delay in the hearing frustrated Cynthia, she did not move for a temporary custody or temporary timesharing order, which must be heard more quickly than a motion to determine permanent custody. Additionally, even if there was an error, Cynthia received a full hearing and consideration of her position that she should be the primary residential parent and no other remedy would be appropriate.
FCRPP 6(3) states that "[t]he court or domestic relations commissioner shall conduct a hearing on any motion for temporary custody, time sharing, visitation or child support, within 60 days of the filing of the motion except for good cause stated on the record."
Cynthia wants our Court to reweigh the evidence and make findings in her favor. This we decline to do. It was within the family court's purview to determine that pursuant to KRS 403.270(2)(e), "[t]he child[ren]'s adjustment and continuing proximity to [their] home, school, and community" heavily favored them remaining in Louisville with Rodney serving as their primary residential parent while time and involvement with Cynthia was maximized by granting her equal timesharing and joint custody in accordance with the KRS 403.270(2) presumption "that joint custody and equally shared parenting time is in the best interest of the child."
Just as the family court did, we decline to consider evidence about events that took place after the last hearing on custody. Although Cynthia's allegation that Rodney is leaving the children home alone or with an inappropriate caregiver is serious, as explained in Gullion v. Gullion, 163 S.W.3d 888, 894 (Ky. 2005) (footnotes omitted), a motion to alter, amend or vacate is not an appropriate vehicle for addressing this situation:
Although a trial court may grant a CR 59.05 motion if the movant presents newly discovered evidence that was not available at the time of trial, "newly discovered evidence" must be of facts existing at the time of trial.
"If it were grounds for a new trial that facts occurring subsequent to the trial have shown an inaccurate prophecy, litigation would never come to an end." [Nordin Const. Co. v. City of Nome, 489 P.2d 455, 473 (Alaska 1971).] Thus, it is improper for a trial court to rely upon evidence of events that occurred subsequent to the trial in ruling on a CR 59.05 motion.Cynthia's remedy if she believes that events which have occurred since the April 19, 2018 custody hearing justify a change in custody or timesharing is to bring a new motion pursuant to KRS 403.340 or KRS 403.320. See French v. French, 581 S.W.3d 45, 47 & 50 (Ky.App. 2019) (discussing the difference between the two motions and applying the standards set out in Pennington).
Cynthia may also make a report of neglect to the Cabinet for Health and Family Services as she testified she did after she learned Rodney left the children unattended in a running vehicle. --------
Accordingly, we affirm the family court's custody order which made Rodney the primary residential parent.
ALL CONCUR. BRIEF FOR APPELLANT: Myrle L. Davis
Louisville, Kentucky NO BRIEF FILED FOR APPELLEE