Opinion
NO. 2016-CA-000958-ME
02-03-2017
DEANA CULLER APPELLANT v. CHAD CULLER APPELLEE
BRIEF FOR APPELLANT: Michael L. Goodwin Louisville, Kentucky BRIEF FOR APPELLEE: Jeremy Scott Aldridge Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 15-CI-00731 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Deana and Chad Culler were married and had two children. They divorced, and the Hardin Circuit Court awarded the parties joint custody of the two children. Deana appeals the joint custody decision.
FACTS
Chad and Deana married on February 5, 2005. Two minor children were born of the marriage. On May 13, 2015, Chad filed a Petition for Dissolution of Marriage. The parties had been separated since January 15, 2015. During the pendency of the action, a temporary order granted both parties joint shared custody of the two minor children. The temporary custody order had the parents alternate weeks in which they each had custody.
A trial on the dissolution action occurred on May 19, 2016. As the parties agreed or resolved all other matters prior to trial, the trial focused solely on the custody of the two minor children. Both parties proffered testimony regarding multiple affairs, sex tapes, criminal charges, and a contempt-of-court order in an effort to prove the other party has significant character issues. The parties also proffered evidence regarding the children's school records, including their attendance records, which included numerous absences and tardies. One of the children's principals also testified about an altercation between Chad's and Deana's families that occurred on the school premises. In spite of that incident, the principal admitted that the child was otherwise doing well in school, and the child had not been in her office for the entire 2015-2016 school year.
At the hearing's conclusion, the trial court noted that this evidence had been presented to him approximately five times during the dissolution petition's pendency and the various motions the parties had previously made:
The kids are doing okay now. I don't really trust either one of you. I imagine I'm probably going to have your kids as soon as they are old enough to be in here. So just keep [your attorneys] handy. But, it seems like other than some tardies, they're doing okay.
I just want to keep the same situation going, 'cause I really think it's the only way that'll work that you all aren't going to abuse one another with the kids right in the middle of it. You take advantage of the situation. Quite frankly, ma'am [Deana], I think you probably were trying to take the child out of the car or made him think that. You say one thing and then another several times during the hearing. I actually wrote it down a couple of times.
And Mr. Culler you're obviously emotionally driven by this situation. That's not a good thing. Okay?
Umm, you've made some horrible decisions. She's made some horrible decisions. Umm. And, quite frankly, I think you've used everything at your all's disposal to hurt the other party. And I just think we still do the joint shared and week-to-week, Sunday at 6 p.m., and we'll see how the chips fall at the criminal trial and go from there.
The trial court then ordered Chad's attorney to prepare the order and send it to opposing counsel. Coincidentally, the Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage from which Deana now appeals includes both Chad's and Deana's counsel's signatures in a "tendered by/have seen" section. Deana then retained new counsel and timely filed a notice of appeal. She raises multiple grounds on appeal.
STANDARD OF REVIEW
Both parties agree that the trial court has broad discretion in its child custody determination. Pursuant to Kentucky Rules of Civil Procedure ("CR") 52.01, we first review the factual findings for clear error. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). Under that standard of review, "findings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." Id. (citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967)). After determining whether the factual findings are clearly erroneous, we next ask whether the trial court abused its discretion. Frances, 266 S.W.3d at 756 (citing Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974)). A trial court's decision is an abuse of discretion only when it is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citing Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). A trial court operating under an abuse of discretion standard may make a decision of its choosing so long as it falls within the range of permissible decisions. Miller, 146 S.W.3d at 915 (citing Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001)).
ANALYSIS
Deana raises multiple issues on appeal, all claiming that the trial court erred by ordering the parties to share joint custody. Central to those arguments is that the trial court's order is lacking in specificity, both in the factual findings and legal conclusions. Her arguments are not wholly congruous, though, as she appears to argue both that the trial court erred by not making the requisite factual findings, and that the trial court made the requisite factual findings but erred by not arriving at the proper conclusion.
Having thoroughly reviewed the record and the trial court's order, we find the trial court order is facially deficient in that it fails to make factual findings and conclusion of law as required by CR 52.01. Thus, we are reversing and remanding for the trial court to enter a new order in accordance with the law as outlined below. In so doing, we do not address whether the trial court erred by granting joint custody.
The only issue before the trial court was a custody determination in a marital dissolution action. Accordingly, Kentucky Revised Statute ("KRS") 403.270 applies, and the trial court was to determine custody based on the best interest of the children while giving each parent consideration. Though this statute does not provide a definition of the best-interest-of-the-child standard, "KRS 403.270(2) requires the trial court to consider all relevant factors and provides a list of non-exclusive, demonstrative factors to be considered in custodial determinations." Frances, 266 S.W.3d at 756. Those factors include:
(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;KRS 403.270(2)(a)-(i).
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de facto custodian; and
(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
A trial court making this best-interests-of-the-child determination must make factual findings and conclusions of law pursuant to CR 52.01. Anderson v. Johnson, 350 S.W.3d 453, 454 (Ky. 2011). "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." Id. Producing sufficiently detailed, written factual findings and conclusions of law is critical for our Commonwealth's children's welfare and the proper functioning of our judiciary:
We again state with emphasis that compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and admonish trial courts that it
is their duty to comply with the directive of this Court to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions. Consideration of matters affecting the welfare and future of children are [sic] among the most important duties undertaken by the courts of this Commonwealth. In compliance with these duties, it is imperative that the trial courts make the requisite findings of fact and conclusions of law to support their orders. . . .Keifer v. Keifer, 354 S.W.3d 123, 125-126 (Ky. 2011) (footnote omitted, modification added).
. . .
[Even when the trial court's decision is given orally from the bench and recorded on the video record, it must be reduced to writing.] We do not expect the appellate courts of this state to search a video record or trial transcript to determine what findings the trial court might have made with respect to the essential facts. Moreover, the final order of the trial court, especially in family law cases, often serves as more than a vehicle for appellate review. It often becomes a necessary reference for the parents and third parties, such as school officials, medical providers, or other government agencies with responsibilities requiring knowledge of the facts determined by the trial court. The judges presiding over family law matters must be mindful of the ramifications of their written orders. A bare-bone, conclusory order . . . setting forth nothing but the final outcome, is inadequate and will enjoy no presumption of validity on appeal.
In the instant case, the trial court labeled 12 paragraphs as "Findings of Fact", only three of which are relevant to the custody issue. They read as follows:
10. That the Court heard testimony from the Petitioner, the Respondent and Ms. Gena Jeffries, Principal of Lincoln Trail, to determine ongoing custody of the parties' minor children.
11. That the parties were currently exercising joint shared custody pursuant to the Temporary Order entered by the Court on December 29, 2015.
12. The Court finds that after hearing testimony of the parties and reviewing the exhibits provided, that the children are doing well in the current custody arrangement. The parties agreed to determine a break and holiday schedule and will tender that to the Court.
The trial court's order also contained two paragraphs of conclusions of law, neither of which addressed the custody issue. However, in its "Decree of Dissolution" section, the trial court ordered:
3. That the parties are hereby granted joint care, control and custody of the minor children with the parties sharing possession of the children on a week-to-week basis. The parties shall continue to exercise parenting time as outlined in the Temporary Order entered on December 29, 2015 wherein they exchange the minor children on Sundays at 6:00 p.m.
Beginning first with the Findings of Fact, we hold that paragraph 10 is not a factual finding. It is simply a list of the witnesses who testified at the hearing. It does not answer the question of "why" it would be in the best interests of the children for the parents to share joint custody. See Anderson, 350 S.W.3d at 459. Likewise, paragraph 11 is not a factual finding, as it is merely an historical recitation of the trial court's previous order. Paragraph 12 does contain a factual finding inasmuch as the trial court finds that the children are "doing well in the current custody arrangement." It, however, only "address[es] the matter in a perfunctory manner," and thus does not comport with CR 52.01's requirement that the trial court make findings of fact. Id. at 458.
The trial court also "failed to indicate compliance with the 'best interest of the child' standard[.]" Keifer, 354 S.W.3d at 126. Neither its Conclusions of Law nor its Decree of Dissolution contains a discussion of the best-interest-of-the-child standard. None of the best-interest-of-the-child factors is discussed. And there is not even a conclusion in the Conclusion of Law section that it is in the best interest of the children to keep the joint-custody arrangement. Though the trial court's order need not be lengthy, it must at minimum delineate some facts and give some analysis of the best-interest-of-the-child standard. See, e.g., K.A.W. v. J.B.J., 2015 WL 5656237 (Ky. App. 2015) (unpublished) ("Here, the order stated the ongoing and contentious nature of the parties' relationship, cited testimony that raised concern for the safety and emotional well-being of the children while in Mother's care, and concluded that granting Father's motion to modify parenting time was in the best interests of the children.") The instant order is facially deficient in both factual findings and legal conclusions.
In spite of these deficiencies, Chad argues that Deana waived any errors with the trial court's findings because she did not file a CR 52.04 motion requesting specific findings. There would be merit to Chad's argument if the trial court had made findings of fact and conclusions of law that comport with CR 52.01. Pursuant to both rules, "a judge must make findings of fact and not address the matter in a perfunctory manner, but if he misses only some key fact in his findings, the litigant must assist the court in its good faith efforts to comply with the rule by requesting that specific finding." Anderson, 350 S.W.3d at 458. In other words, CR 52.02 "creat[es] a general duty for the trial court to find facts, and 52.04 [applies] only after the court has complied with its general duty." Id.
Here, because the trial court failed to make the requisite findings of fact and conclusions of law relating to the best interest of the children, Deana was not under CR 52.04's obligation to request specific findings. Accordingly, Deana has not waived any argument relating to the trial court's deficiency, and an order that complies with CR 52.01's directives for factual findings and legal conclusions shall be entered on remand.
CONCLUSION
For the reasons stated above, we reverse and remand this case. On remand, the trial court, pursuant to CR 52.01, should enter an order with written factual findings regarding the evidence from the hearing, especially that evidence that addresses the KRS 403.270(2)(a)-(i) factors. The trial court should also include a conclusion of law that outlines its best-interest-of-the-child analysis for its ordered custody arrangement.
ALL CONCUR. BRIEF FOR APPELLANT: Michael L. Goodwin
Louisville, Kentucky BRIEF FOR APPELLEE: Jeremy Scott Aldridge
Elizabethtown, Kentucky