Opinion
NO. 2013-CA-000849-ME
03-07-2014
BAZIE DULEN, III APPELLANT v. DONNA DULEN APPELLEE
BRIEF FOR APPELLANT: Malenda S. Haynes Grayson, Kentucky BRIEF FOR APPELLEE: Gordon B. Long Salyersville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MORGAN CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 11-CI-00211
OPINION
VACATING AND REMANDING
WITH DIRECTIONS
BEFORE: STUMBO, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Bazie Dulen, III, brings this appeal from a March 20, 2013, Order of the Morgan Circuit Court, Family Court Division, awarding Donna Dulen sole custody of the parties' minor child. We vacate and remand with directions.
Bazie and Donna Dulen were married for a second time on October 2, 1997. One child, M.D., was born of the second marriage. The marriage was dissolved by decree of dissolution of marriage entered in the Morgan Circuit Court, Family Court Division, (family court) on May 14, 2012. The decree dissolved the parties' marriage but reserved the custody regarding M.D. for subsequent adjudication. The parties were unable to subsequently mediate the custody dispute. Following a hearing, the family court entered an order on March 20, 2013, awarding sole custody of M.D. to Donna and awarded "standard visitation" to Bazie. This appeal follows.
During the parties' first marriage, they had two children together; those children are now emancipated.
Bazie contends that the family court erred by awarding sole custody of M.D. to Donna. Bazie contends that the family court's findings of fact were insufficient to support its award of sole custody to Donna. Additionally, Bazie asserts that the family court failed to make the requisite findings of fact required under Kentucky Revised Statues (KRS) 403.270.
KRS 403.270 governs initial custody determinations and provides that the "court shall determine custody in accordance with the best interests of the child." In so doing, the court shall "consider all relevant factors" and shall specifically consider:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;KRS 403.270(2)(a-f). KRS 403.270 mandates that custody be determined according to the best interests of the child and the best interest determination is an issue of law decided by the court. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). It is incumbent upon the court to specifically set forth the best interests of the child in the custody order. The failure of the circuit court to do so constitutes reversible error.
(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;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720[.] . . .
In the case sub judice, the family court made the following findings of fact and conclusions of law in its March 20, 2013, order:
This matter having come on for a final hearing on March 14, 2013, in Carter County on the sole issue of custody of the parties' minor child, and the Court having heard testimony from the parties and their witnesses, finds as follows:
1. That the parties' minor child, [M.D.], age 12, is a well-adjusted child that is doing quite well under the circumstances.
2. That both parties are loving parents that simply cannot get along and the Court is of the opinion that there is no reasonable prospect of future cooperation between the parties with regards to raising [M.D.].
3. That there is currently a DVO in place against the Respondent Bazie Dulen III; however, the Court finds that he is not a danger to his child, [M.D.].
. . . .
5. That the Petitioner [Donna Dulen] has admitted that when she was 13 years old, her father molested her and that she did not tell her mother of this. The Court finds that [M.D.] shall not be in the presence of Petitioner's father unless the Petitioner is present to supervise the child.
6. That this is in the best interest of the child for the Respondent Bazie Dulen to have complete access to his daughter [M.D.]'s school and medical records.
7. That due to the inability of the Petitioner and Respondent to get along as mentioned in paragraph two (2) above, joint custody is not feasible.
8. That domestic violence has occurred during the parties' marriage.
ORDER
It is hereby ordered and adjudged as follows:
1. That the Petitioner Donna Dulen is awarded sole custody of [M.D.] and the Respondent Bazie Dulen is granted standard visitation. Child support shall remain at $422.00 per month. The parties shall continue to exchange the child at the West Liberty Police Station.
. . . .
3. That Petitioner shall execute whatever releases that are necessary for the Respondent to have access to the school and medical records of his daughter, [M.D.].
4. That [M.D.] shall not be allowed to visit the Petitioner's parents unless said visitation is supervised by the Petitioner.
A review of the March 20, 2013, order reveals that the family court failed to make the required conclusion of law that the award of sole custody to Donna was in the child's best interest. This conclusion of law is mandatory. The Court may only award custody to a party when it specifically concludes that the award is in the child's best interests.
Accordingly, we hold that the family court erred as a matter of law by failing to make a best interests determination as required by KRS 403.270. Therefore, we vacate the family court's March 20, 2013, order awarding sole custody to Donna and remand with directions that the family court reconsider its custody award consistent with KRS 403.270 and Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). When so doing, the family court is further directed to make a specific determination of best interests of the child in the award of custody.
For the foregoing reasons, the Order of the Morgan Circuit Court, Family Court Division, is vacated and remanded with directions for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Malenda S. Haynes
Grayson, Kentucky
BRIEF FOR APPELLEE: Gordon B. Long
Salyersville, Kentucky