Opinion
NO. 2012-CA-001654-ME
06-07-2013
PAMELA N. EWERS APPELLANT v. CARLOS RUIZ NAVARRO AND JULIO SANTIAGO APPELLEES
BRIEF FOR APPELLANT: Albert W. Barber, III Owensboro, Kentucky BRIEF FOR APPELLEE: John D. Austin Owensboro, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 11-CI-01087
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. DIXON, JUDGE: Pamela Ewers (Mother) appeals from an order of the Daviess Circuit Court naming her former husband, Carlos Navarro (Father), the primary residential custodian of their two minor children. Finding no error, we affirm.
Mother and Father were married on May 16, 2003, and Father filed a petition to dissolve the marriage in August 2011. Mother has one child, G.E., from a prior relationship, and the parties have one child (D.R.) together. Mother has a history of substance abuse, and the children were removed from her custody pursuant to a dependency, neglect, and abuse action in 2010. The district court granted Father temporary custody of the children following the dependency adjudication. Tracy Curry, a caseworker with the Cabinet for Health and Family Services, worked with Mother regarding a reunification plan; shortly thereafter, Mother moved to her home state of Alabama. After Father filed for divorce, the domestic relations commissioner held two hearings to address custody of the children. The DRC recommended joint custody with Father being the primary residential custodian. Mother was granted visitation two weekends per month when she travels to Daviess County. Mother filed exceptions to the recommendations, and the circuit court overruled the exceptions following a hearing. The court adopted the report of the DRC, and this appeal followed.
The biological father of G.E. was represented by a guardian ad litem and waived further notice of the custody proceeding.
In custody matters, the trial court must determine the "best interests of the child," and give equal consideration to both parents. KRS 403.270(2). The statutory factors include: the wishes of the parents and child; the interpersonal relationships of the child with its parents, siblings, and others; the child's assimilation to home, school, and community; mental and physical health issues; and evidence of domestic violence. KRS 403.270(2)(a-f). "A trial judge has a broad discretion in determining what is in the best interests of [a] child[] when he makes a determination as to custody." Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). On appeal, we uphold the trial court's findings of fact "unless they are clearly erroneous, and due regard must be given to the opportunity of the trial judge to view the credibility of the witnesses." Polley v. Allen, 132 S.W.3d 223, 228 (Ky. App. 2004). A finding of fact is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
Mother's arguments challenge the sufficiency of the evidence supporting the court's decision to award primary residential custody to Father. Mother contends the court erred by failing to consider Father's status as an illegal alien. Mother also disputes the court's conclusion that she had not completed her case plan set forth by the Cabinet. Essentially, Mother argues that she would be a better primary custodian; accordingly, she believes the court's findings must be erroneous because they did not rely on her testimony and evidence.
This case involved two evidentiary hearings and testimony from several witnesses on the issue of custody. Mother testified regarding her concern that Father could be deported because he is an illegal alien. We are not persuaded by Mother's contention that Father's immigration status was a dispositive factor in awarding custody; rather, the court was entitled to weigh that consideration along with the totality of the evidence. The court was vested with broad discretion to consider the evidence and determine the custody arrangement that serves the best interests of the children. Krug, 647 S.W.2d at 793.
Next, as to the Cabinet's case plan, Curry testified that Mother had not complied with all of the requirements set forth by the Cabinet. Curry explained that Mother had not completed certified substance abuse counseling and mental health counseling. Mother introduced a letter from the Alabama family services agency, stating that Mother was enrolled in drug and alcohol classes. Curry, however, explained that the requirements for Mother's case plan through the Kentucky Cabinet were different than the Alabama agency's recommendations. The court properly relied on Curry's testimony to conclude that Mother had not completed the requirements of her Kentucky case plan.
In sum, conflicting evidence was presented regarding the custody of the children; accordingly, it was for the trial court to determine the credibility of witnesses and weigh the evidence. Polley, 132 S.W.3d at 228. After careful review, we believe the court's findings and conclusions are supported by substantial evidence. We are satisfied the court considered all of the evidence and applied the relevant statutory factors to conclude that it is in the children's best interest for Father to be the primary residential custodian. We find no error in the custody determination.
The order of the Daviess Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Albert W. Barber, III
Owensboro, Kentucky
BRIEF FOR APPELLEE: John D. Austin
Owensboro, Kentucky