Opinion
NO. 2013-CA-000807-ME
03-21-2014
VIKAS DHAWAN APPELLANT v. VERONIKA NAUMCHENKO APPELLEE
BRIEF FOR APPELLANT: David A. Weinberg Lexington, Kentucky BRIEF FOR APPELLEE: Crystal L. Osborne Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCINDA CRONIN MASTERTON, JUDGE
ACTION NO. 10-CI-07091
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. COMBS, JUDGE: Dr. Vikas Dhawan appeals the order of the Fayette Circuit Court which granted Veronika Naumchenko visitation with their minor child. After our review, we affirm.
This case involves a rather complicated history, which we will endeavor to summarize. Vikas and Veronika met in Russia. Their daughter, Kalinda, was born in Japan in 2002. Between 2002 and September 2010, the parties frequently moved between Russia and various locations in the United States. Although Vikas and Veronika divorced in Indiana in 2007, they continued to live together on a rather regular basis -- sometimes in Russia and sometimes in the United States. In September 2010, Vikas accepted a position as a hand surgeon at the University of Kentucky. He moved to Lexington while Veronika and Kalinda resided in Louisville.
On October 15, 2010, Veronika moved to Hickory, North Carolina, to accompany her boyfriend (now husband), who had obtained a job there. She alleges that she and Vikas arranged for Kalinda to live with him in Lexington only until her winter break from school. At that time, Veronika was to relocate Kalinda to North Carolina.
However, on December 15, Vikas filed a petition seeking temporary sole custody of Kalinda. Then, on December 20, he filed an emergency ex parte motion also seeking temporary sole custody. The court granted the order on the same day.
Veronika filed her answer and counterclaim on December 27, 2010. She sought recognition of the Indiana order for joint custody or, in the alternative, a new order for sole custody. She asked the court to allow her to relocate Kalinda to North Carolina. She registered the Indiana order with the court. On January 20, 2011, the court held a hearing and appointed a guardian ad litem (GAL) to represent Kalinda.
On February 11, 2011, the court held a hearing and dissolved the emergency order awarding temporary sole custody to Vikas. It restored joint custody between the parties. The court also permitted Veronika to have weekend visitations while Vikas remained the primary residential parent.
The record is unclear as to what transpired in the spring and summer of 2011. But on August 1, 2011, Veronika requested a hearing, which was held on October 25, 2011. Following that hearing and another one in November, the court again ordered that the parties would have joint custody. Veronika would resume visitation after a mental evaluation.
Veronika completed the evaluation on July 16, 2012. The following month, she filed a motion to modify timesharing. Progress in the case was then significantly delayed by administrative complications. Finally, the court held a hearing on December 14, 2012. The parties agreed for both Kalinda and Veronika to participate in reconciliation therapy as recommended in the report from Veronika's evaluation.
On February 11, 2013, Veronika filed another motion for timesharing and for adoption of the GAL's recommendations. The GAL had recommended regular unsupervised visitation for Veronika. On February 27, 2013, the court held a final hearing regarding timesharing. Dr. Marlene Huff, the reconciliation therapist, testified that reconciliation therapy had been unnecessary. She recommended that Veronika and Kalinda have their visitation in Lexington during the school year. Kalinda's regular therapist, Dr. Cheryll Pearson, shared the same concerns as Dr. Huff. The GAL did not testify but presented her report recommending regular visitation and communication between Veronika and Kalinda.
The court entered its findings and order on April 12, 2013. It ordered Vikas and Veronika to work together on scheduling Kalinda's activities. In order to assist them in cooperating, the court assigned them a parenting coordinator. It granted Veronika visitation with Kalinda in North Carolina for all long weekends during the school year. It also provided that Veronika could have visitation on additional weekends in Lexington during the school year, limited to two weekends per month. Veronika was also granted six weeks of visitation in North Carolina during summer break. It is from this order that Vikas now appeals.
Family courts have broad discretion in matters regarding the evidence presented to them. Jones v. Hammond, 329 S.W.3d 331, 334 (Ky. App. 2010). Our standard of review is circumscribed by Kentucky Rule[s] of Civil Procedure (CR) 52.01. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986) (The rule applies to child custody cases); Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky. 1980) (CR 52.01 applies to domestic cases). CR 52.01 provides that in actions without juries, the trial court's findings of facts should not be reversed unless they were clearly erroneous. Clear error only occurs when the record lacks substantial evidence to support the trial court's findings. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). We may disturb a trial court's decision only if it has abused its discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009).
Issues relating to visitation and timesharing are governed by Kentucky Revised Statute[s] (KRS) 403.320. Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). In pertinent part, it sets forth that:
(1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.
(3) 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.
Vikas argues that the court's modification of timesharing was not supported by the evidence presented at the hearing. He objects that the court ordered visitation in North Carolina and prohibited him from making unilateral decisions for Kalinda.
Vikas essentially implies that Veronika suffers from a mental deficiency - a fact which he believes should preclude her from visitation with Kalinda. He presents evidence from a therapist's report concluding that Veronika was defensive. However, Vikas does not explain why "defensiveness" - even if true - would pose a danger to Kalinda. Actually, there is a bit of rational explanation for her sensation of defensiveness. She is not a native speaker of English. The name of the therapist and the name of Vikas's counsel only differed by one letter, and for months, Veronika thought that the court had ordered her to be evaluated by opposing counsel.
Furthermore, the evidence at the hearing indicated that Veronika did not have any mental problems that would prevent her from having visitation with Kalinda. While Vikas characterizes Dr. Huff's testimony as being adverse to Veronika, it was actually favorable. Dr. Huff believed that Veronika and Kalinda were well bonded and that they did not need her for reconciliation therapy. She further stated that every other weekend visitation during the school year would be beneficial to Kalinda. Dr. Huff did not believe that Veronika posed a risk to Kalinda. In fact, her report was directed toward improving cooperative efforts of both parents. Furthermore, as Veronika notes in her brief, Dr. Huff's role was strictly limited to that of reconciliation counselor. She was not involved for the purpose of making recommendations regarding timesharing.
The court also heard testimony from Dr. Cheryll Pearson. She, too, expressed concern for the lack of communication between Vikas and Veronika. Dr. Pearson agreed with Dr. Huff that Kalinda should be allowed to continue her activities in Lexington but indicated that she also needs time with her mother. Dr. Pearson reported that Kalinda did not enjoy the long drive between Lexington and Hickory, but she did not suggest that visitation with Veronika endangered Kalinda in any way. Her recommendation was to limit Kalinda's travel by requiring Veronika to primarily exercise visitation rights in Lexington during the school year.
Because of a case that is currently pending before the Supreme Court of Kentucky, the GAL did not testify. See Morgan v. Getter, 2013 WL 645717 (Feb. 22, 2013) (unpublished by the Supreme Court); 2013-SC-000196. However, the GAL provided unsworn input at the hearing. The GAL agreed that Kalinda did not enjoy the long drive. Her recommendation was that Kalinda could travel to North Carolina for long weekends during the school year and for six weeks during the summer. She agreed that additional visitation in Lexington during the school year would be appropriate. The GAL's opinion was that Kalinda no longer needed counseling of any kind. She did not present any evidence that Kalinda would be endangered by visitation with Veronika. She was supportive of increasing contact between Veronika and Kalinda.
Our court has declared that "[a] visitation schedule should be crafted to allow both parents as much involvement in their children's lives as is possible under the circumstances." Drury v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000). In this case, the court has applied this principle, and its decision is supported by substantial evidence. We cannot conclude that it erred.
Vikas also challenges the court's finding that he should not make unilateral decisions regarding Kalinda and her schedule. The court ordered that Vikas should consult with Veronika before scheduling activities that might interfere with Veronika's visitation. Vikas characterizes this decision as having been made in Veronika's best interest -- not Kalinda's. The court made it clear that it was important for Kalinda to have visitation with her mother. Specifically, the court found that "[i]t is more important for Kalinda to have a relationship with her mother than to be in every activity available to her." The court also cited actions by Vikas that could be construed as efforts to hinder Veronika's visitation.
We reiterate: the court granted joint custody to Vikas and Veronika. Joint custody does not mean that children spend precisely equal time mathematically with their parents; but "[a] significant and unique aspect of full joint custody is that both parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and participate equally in the child's upbringing." Pennington v. Marcum, 266 S.W.3d at 764. (Emphasis added). This reasoning is also applicable to Vikas's concern about the court's order for Vikas and Veronika to communicate before either one takes Kalinda on international travel. International travel is a significant undertaking with the potential to interfere with the allotted time of the other parent. The trial court's order was appropriate, and we have no basis to reverse it.
Vikas finally argues that the court did not support its order with sufficient findings of fact regarding the long weekends, cooperation as to scheduling, and consulting on international travel. It is true that conclusory statements are insufficient; family courts are required to make written findings. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011); Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011). In both Anderson and Keifer, the courts had provided one-sentence conclusions.
However, in the case before us, the trial court discussed its decisions in a five-page order. Contrary to Vikas's argument - and as mentioned above - the trial court prioritized Kalinda's relationship with her mother as being superior to participation in extracurricular activities. It also explained that the parents should share in decision-making. There is no merit to this argument as the court was precise, explicit, and thorough in the details of its order.
Therefore, we affirm the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: David A. Weinberg
Lexington, Kentucky
BRIEF FOR APPELLEE: Crystal L. Osborne
Lexington, Kentucky