Opinion
NO. 2013-CA-001618-ME
05-30-2014
DONEKIA COOPER APPELLANT v. JAMES BRUNSON APPELLEE
BRIEFS FOR APPELLANT: J. Gregory Troutman Louisville, Kentucky BRIEF FOR APPELLEE: Barry Birdwhistell Elizabethtown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 10-CI-00909
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND
REMANDING
BEFORE: DIXON, NICKELL AND TAYLOR, JUDGES. DIXON, JUDGE: Donekia Cooper appeals from a judgment of the Hardin Circuit Court modifying time-sharing in favor of James Branson. Donekia also appeals a separate court order terminating James's child support obligation.
Donekia and James were previously involved in a romantic relationship. They have one son, Elijah, who was born in January 2010. In April 2010, James filed a petition seeking joint custody of Elijah in Hardin Circuit Court. James was stationed with the Army at Fort Knox, while Donekia was in the process of moving with her parents from Fort Knox to Georgia. The record reflects an acrimonious relationship between the parties, with frequent disputes about James's parenting time. An agreed custody order was entered in August 2011, which provided for joint custody and designated Donekia as the primary residential parent. Pursuant to the order, James was entitled to parenting time every other weekend and five weeks in the summer.
In October 2012, James filed a motion alleging that Donekia had refused his five weeks of summer parenting time. The court ordered that James would exercise his summer parenting time during January 2013. Donekia filed a motion opposing the five weeks of parenting time, and she again refused to allow James to have Elijah for the January parenting time. The parties continued litigating issues related to James's parenting time, and James ultimately filed a motion for "immediate custody" of Elijah. The court heard testimony from James regarding Donekia's repeated refusal to cooperate with time-sharing. James also presented evidence of two injuries that Elijah sustained while he was in Donekia's care. A photograph depicted a laceration to Elijah's foot that required stitches, and on another occasion Elijah went to the hospital after he removed a plug-in air freshener from the wall and ingested the liquid. Although Donekia admitted the incidents occurred, she asserted she did not intentionally harm Elijah. In its findings of fact and conclusions of law, the court determined that it was in Elijah's best interests for James to be the primary residential parent. The court emphasized that the parties had joint custody and that Donekia was entitled to time-sharing pursuant to the court's local rules.
Donekia moved to alter, amend, or vacate the judgment. The court denied Donekia's motion; thereafter, the court granted James's motion to terminate his child support obligation. Donekia now appeals.
I. Time-Sharing
Donekia contends the court impermissibly modified a final custody decree without the supporting affidavits required by KRS 403.340. In response, James asserts that affidavits were not required because the court modified time-sharing rather than custody.
In Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), our Supreme Court addressed the potentially confusing terminology involved in a custody or time-sharing dispute, noting that a court must determine: "Is the motion actually seeking modification of custody or visitation/timesharing?" Id. at 768. The Court explained:
The obvious problem is that parties often ask for one thing when they are actually seeking the other, due to the unique nature of their shared (joint) custody or split (sole) custody. Courts have struggled ever since the concept of joint custody emerged with what part physical or residential possession of the child plays in each type of custody. However, a modification of custody meansId. at 767. The Court further stated:
more than who has physical possession of the child. Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree. This is true whether the parent has sole or joint custody: decision-making is either vested in one parent or in both, and how often the child's physical residence changes or the amount of time spent with each parent does not change this.
In a sole custody arrangement, KRS 403.320 speaks clearly to visitation granted to a 'parent not granted custody' and modification of that visitation based on the best interests of the child. Modification of the visitation schedule does not alter the sole nature of the custody. While there is no statute that specifically addresses modification of timesharing in a joint custody setting, it is reasonable to infer that modifying it does not alter the nature of joint custody. Also, since the nature of the custody does not change, the trial court is not bound by the statutory requirements that must be met for a change of custody, but can modify timesharing based on the best interests of the child as is done in modifying visitation.Id. at 768.
In this case, the trial court did not disturb the underlying joint custody arrangement; instead, the court altered the amount of time Elijah would spend with each parent. Pursuant to KRS 403.320(3), "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child."
On review, we will not disturb the trial court's factual findings unless they were clearly erroneous, and we are mindful of the lower court's opportunity to assess witness credibility. Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010). Essentially, it is within the sound discretion of the trial court to determine whether the circumstances warrant a modification of time-sharing. Pennington, 266 S.W.3d at 769.
After thoroughly reviewing the record, it is apparent that the trial court weighed the testimony and evidence to determine that a modification of time-sharing was in Elijah's best interest. The court found James to be a more credible witness than Donekia. The court pointed out that Donekia's testimony was contradictory and that her behavior indicated she had no intention of cooperating with the prior parenting-time agreement. The court further noted the photograph of Elijah's foot depicted a severe injury, and the court found that Donekia gave an unsatisfactory explanation for how the injury occurred. The court also determined that James, as an x-ray technician in the Army, was capable of providing for Elijah's needs. After hearing all the evidence, the court specifically concluded that it would be in Elijah's best interests for James to be the primary residential parent. Based on our review, we are not persuaded that the trial court abused its discretion by modifying time-sharing.
II. Child Support
After the court denied Donekia's motion to alter, amend, or vacate the judgment modifying time-sharing, James filed a motion to terminate his child support obligation due to the new time-sharing arrangement where Elijah would primarily reside with James. The court granted James's motion and entered a one- sentence order terminating his child support obligation. Donekia now appeals that order.
Although a trial court has discretion in modifying child support, "such discretion must be exercised within the statutory parameters." Jones v. Hammond, 329 S.W.3d 331, 340 (Ky. App. 2010). The child support guidelines "reflect the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes." Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007).
Under the circumstances presented here, the court abused its discretion by terminating child support. Based on our review of the record, there is no indication that the trial court considered the relevant statutes in reaching its decision to completely eliminate James's child support obligation; consequently, we reverse the court's order terminating child support. We remand this matter to the court for consideration of James's request according to the child support guidelines.
For the reasons stated herein, we affirm the Hardin Circuit Court's judgment modifying time-sharing. We reverse the Hardin Circuit Court's order terminating James's child support obligation and remand that matter for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Gregory Troutman
Louisville, Kentucky
BRIEF FOR APPELLEE: Barry Birdwhistell
Elizabethtown, Kentucky