Opinion
NO. 2016-CA-000519-ME NO. 2016-CA-000642-ME
03-31-2017
ASHLEY ELIZABETH CRAFTON APPELLANT/CROSS-APPELLEE v. SCOTT F. CRAFTON APPELLEE/CROSS-APPELLANT
BRIEF FOR APPELLANT: William L. Hoge, III Ruth J. Wilkerson Louisville, Kentucky BRIEF FOR APPELLEE: Amealia R. Zachary Dixon, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON FAMILY COURT
HONORABLE SHEILA N. FARRIS, JUDGE
ACTION NO. 08-CI-00982 OPINION AND ORDER
VACATING AND REMANDING AND OVERRULING THE MOTION TO STRIKE
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND THOMPSON, JUDGES. MAZE, JUDGE: Appellant, Ashley Crafton, appeals from an order of the Henderson Family Court overruling her motion for additional visitation with her son and further limiting that visitation. Ashley contends that the record lacked support for the trial court's findings, and that the trial court therefore abused its discretion. Appellee, Scott Grafton, brings a protective cross-appeal in which he raises several issues concerning the same order.
It is apparent from the record that the parties and the trial court proceeded under an incorrect legal standard. As KRS 403.320(3) required the trial court to evaluate Ashley's motion under a "best interests of the child" standard, we must vacate the trial court's order and remand for further proceedings.
Background
Ashley and Scott divorced in March 2010. Shortly thereafter, the trial court determined that they should enjoy joint custody of their then-five-year-old son, F.C. In February 2013, Ashley was involved in a car accident while her son was in the vehicle with her. She was subsequently charged with driving under the influence, and after a hearing, the trial court granted Scott temporary sole custody of their child and limited Ashley to supervised visitation only. Only six days later, the trial court suspended Ashley's visitation because she was unavailable to participate. On several occasions between 2013 and 2015, she sought treatment for alcohol abuse, anxiety, and depression. Throughout 2014, Ashley sought expanded visitation, and Scott either objected or moved that Ashley's visitation be, or remain, restricted. As recently as March 2014, the trial court expanded Ashley's visitation, finding that doing so would not seriously endanger F.C.'s well-being; however, the trial court restricted her visitation again after an April 2014 hearing.
On May 27, 2015, Ashley filed the motion which is the subject of this appeal, a Motion for Supervised Access with her son to be held at a visitation center in Evansville, Indiana, near her home in Henderson, Kentucky. In November 2015, the trial court conducted a two-day hearing on this motion. The trial court heard from Dr. Michael Nicholas, an expert Scott retained to review and testify to Ashley's medical and psychiatric record. However, the trial court later held that Dr. Nicholas's testimony was "of no probative value with regard to [Scott]'s burden of proof" on the question of whether expanded visitation with Ashley would seriously endanger the child. Ashley later called several witnesses who testified to her successful efforts to maintain her sobriety since 2015.
The trial court also heard from Kelly Fox, a court-appointed counselor who had met with and evaluated Ashley, Scott, and F.C. Fox testified that she met and worked with F.C. over the course of approximately two years. By the third session, Fox observed that F.C. remained "worried" and "fearful" regarding Ashley. Fox testified that she supervised a visit between Ashley and F.C., but that it did not go well. She stated that F.C. remained adamantly opposed to seeing Ashley, and even had "physical manifestations" following in-person and phone conversations with Ashley. These included night terrors and missing a day of school following one visit. On cross-examination, Fox stated that she received this information from Scott and from F.C. Based on her observations, Fox stated her conclusion that further visits with Ashley, even by phone, would "seriously endanger" F.C.'s well-being. Fox's observations and conclusion were included in a report which the trial court made part of the record.
In a March 16, 2016, order, the trial court overruled Ashley's motion for expanded visitation. The court concluded that further contact with Ashley would "seriously endanger" the child, and that "the most appropriate contact" between Ashley and the child was "limited phone contact" every other Sunday and on holidays. Immediately prior to this order, Ashley had enjoyed nightly phone contact with her son. Ashley moved the trial court to alter, amend, or vacate its order. However, the trial court overruled the motion, and this appeal follows.
Statutory Burden and Standard of Review
Ashley appeals the trial court's decision against expanding her visitation. She also argues that the trial court's sua sponte order to limit her phone contact with F.C. was erroneous. Our standard of review and the law concerning such issues are both well-established. "The court may modify an order granting or denying visitation rights whenever modification 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." KRS 403.320(3). "Since 'serious endangerment' or 'best interests' is not defined, it is left to the sound discretion of the trial court whether the party opposing [a motion to modify visitation] has met his burden. . . ." Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008) (equating a motion to relocate to a motion to modify visitation). Hence, we will reverse only if we observe an abuse of the trial court's discretion, to wit, an order that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted).
Analysis
As a preliminary matter, we address a pending Motion to Strike a portion of Ashley's brief. Scott argues that Ashley's addition of an unpublished Court of Appeals opinion and a twenty-seven page law journal article in the Appendix of her brief was improper. Regarding the unpublished case, CR 76.28(4)(c) states that a party may cite an unpublished case as authority
if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.Ashley cites Lane v. Caudill-Lane, 2007 WL 2459269 (Ky. App. 2007) as support for her assertion that "limiting a non-custodial parent's visitation to supervised visitation can impede the development of the relationship between parent and child, and is simply an aggravation." Immediately after this statement in the Lane opinion, we cited to Schwartz v. Schwartz, 382 S.W.2d 851, 852 (Ky. 1964).
Even if it was citable authority, we would not rely upon Lane, as it is factually distinguishable. Lane concerned the initial establishment of visitation, requiring a different legal standard under KRS 403.320. Additionally, the statement Ashley quotes from Lane and a prior case, Schwartz, can hardly be read as a legal pronouncement. Rather, it was dicta, at best. Therefore, we do not find Lane persuasive or authoritative, whether properly cited to this Court or not.
Scott also takes issue with Ashley's reference to, and inclusion in the Appendix of, a lengthy law journal article which lists seven factors that "trial courts throughout the world" consider when drafting orders of supervised visitation. Scott argues that this is not authority this Court should consider on appeal. While this may well be true, unlike her citation to an unpublished case, Ashley's citation to, and inclusion of, a law journal article was not improper or violative of a rule. Rather, this Court is fully capable of discerning what is and is not appropriate and binding authority, and our analysis will reflect this. We elect against striking reference to, or inclusion of, the law journal Ashley includes in her brief. Therefore, Scott's Motion to Strike is OVERRULED.
Turning to the merits of the appeal, we first point out something which is imperative, but which the parties leave largely unaddressed. The trial court had already imposed a restricted visitation schedule when Ashley filed her motion to include supervised, in-person visits. Therefore, Ashley's motion was for a modification of the visitation schedule the trial court had already ordered. This is significant under Kentucky law. KRS 403.320(1) states that a non-custodial parent is entitled to "reasonable visitation" unless a court finds "that visitation would endanger seriously the child's physical, mental, moral, or emotional health." Once a trial court makes such a finding in a final order concerning visitation, this "entitlement" to visitation - vital in the establishment of the initial order - is no longer a factor to be considered by the trial court. See Hornback v. Hornback, 636 S.W.2d 24, 26 (Ky. 1982). That visitation is in the child's best interest is no longer presumed. As a result, the trial court is at liberty to grant or deny a request for modification "whenever modification would serve the best interests of the child." KRS 403.320(3).
This brings to light a troubling fact that only Scott discusses on appeal: The trial court proceeded under the incorrect legal standard. The lone legal conclusion in the trial court's order was that Scott met his burden of establishing that additional visitation would "seriously endanger the child." It could be argued that any visitation that would "seriously endanger" a child would never be in his best interests. However, our Supreme Court has unequivocally stated that whether modification is in the best interests of the child is a "conclusion of law required by KRS 403.320." See also Hornback, 636 S.W.2d at 26 ("Once a finding has been made that the children's welfare is endangered, however, the court may not modify the judgment without finding that the best interests of the child are served."). It is equally clear that the trial court failed to proceed under this standard or to make such a conclusion.
Furthermore, the trial court improperly placed the burden of proof on Scott. As we have explained, after a final order regarding visitation is entered and the party whose visitation is limited later seeks modification of that order, it becomes the movant's burden to demonstrate that modification serves the best interest of the child. See Kelsay v. Carson, 317 S.W.3d 595, 598 (Ky. 2010), citing Pennington, supra; see also KRS 403.320(3). Therefore, it was Ashley's burden to show that expansion of her visitation rights with F.C. served the child's best interest; it was not Scott's burden to prove the opposite. The trial court's failure to apply the appropriate statutory standard and its misappropriation of the burden of proof render remand necessary. While we recognize that remand may very well yield the same result, such a result must be reached via the standard the General Assembly has prescribed.
Conclusion
The March 16, 2016, order of the Henderson Family Court is vacated and remanded so that the trial court may evaluate whether Ashley met her burden under the "best interests" standard. The trial court must then enter findings of fact and conclusions of law which "find the facts specifically and state separately its conclusions of law thereon. . . ." CR 52.01. Pursuant to KRS 403.320(3), the trial court's conclusions of law must include whether it believes supervised visitation between F.C. and Ashley serves the child's best interests.
TAYLOR, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION. ENTERED: 3-31-17
/s/ Irv Maze
JUDGE, COURT OF APPEALS
THOMPSON, JUDGE, DISSENTING: Respectfully, I dissent. There is no reason to remand this case to the family court to make findings of fact regarding F.C.'s best interest. The family court has already found additional visitation would seriously endanger F.C.
As noted by the majority, a significant fact in this case is that Ashley's visitation had been previously restricted based on a finding by the family court that unrestricted visitation would seriously endanger F.C. Ashley sought to modify that order by requesting additional visitation, which the family court denied after finding that the situation had not changed since its original order restricting visitation. Specifically, it found additional visitation would seriously endanger F.C.
The majority's decision results from a misinterpretation of Hornback v. Hornback, 636 S.W.2d 24 (Ky.App. 1982). In that case, this Court held that after there is a finding that a child is seriously endangered by visitation, the noncustodial parent no longer has an absolute entitlement to visitation and the judgment or order restricting visitation may be modified only if modification would be in the child's best interests. Id. at 26.
As I have emphasized, if there is a finding that modification of the prior judgment or order would seriously endanger the child, the best interest standard has no relevance and the motion to modify must be denied. Hornback simply does not stand for the absurd proposition that placing a child in serious danger can be in a child's best interest. I do not see the purpose in remanding this case to the family court to add a finding that it is not in F.C.'s best interest to have additional visitation with Ashley. Such language will be merely superfluous to its findings that F.C. would be seriously endangered.
In other words, once a finding of serious endangerment has been made and visitation restricted, it remains restricted until upon proper motion the moving party establishes that less restrictive visitation would be in the child's best interest. If the family court finds that the child would be seriously endangered by the requested modification, the inquiry is ended and the motion must be denied.
I agree that if visitation had been modified after the order restricting visitation, the question would properly be whether that modification was in the child's best interest. However, that is not what occurred. The family court denied the motion after making sufficient findings that additional visitation would seriously endanger F.C. I would affirm. BRIEF FOR APPELLANT: William L. Hoge, III
Ruth J. Wilkerson
Louisville, Kentucky BRIEF FOR APPELLEE: Amealia R. Zachary
Dixon, Kentucky