Opinion
NO. 2017-CA-001713-ME
07-20-2018
WESLEY HAMILTON APPELLANT v. KRISTIN QUEEN HAMILTON APPELLEE
BRIEF FOR APPELLANT: Thomas W. Moak Prestonsburg, Kentucky BRIEF FOR APPELLEE: Daniel Frederick West Liberty, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLOYD FAMILY COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 08-CI-00419 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, J. LAMBERT, AND JOHNSON, JUDGES. LAMBERT, J., JUDGE: Wesley Hamilton has appealed from the orders of the Floyd Family Court denying his motion to be named as the primary residential custodian of his minor child and denying his motion to alter, amend, or vacate that order. Finding no error, we affirm.
Wesley and Kristin Queen Hamilton were married in 2006, and one child (a daughter) was born of the marriage in 2007. The parties separated in January 2008 when they lived in Prestonsburg. Wesley filed a petition to dissolve the marriage later that year. Both parties sought custody of the child. The family court entered a bifurcated decree of dissolution in May 2008, reserving its decision on all disputed issues. By order entered May 27, 2008, the family court granted the parties joint custody of the child with Kristin being designated as the primary residential custodian. The court granted supervised visitation to Wesley and ordered him to pay temporary child support. A separate action related to child support was consolidated with the above action in August 2008. In February 2011, Kristin moved to transfer the action to an Indiana court, where she and the child resided. Wesley objected to the motion, which Kristin later withdrew. The parties continued to litigate child support, custody, and visitation issues over the next several years.
Related to this appeal, in July 2017, Wesley moved the family court to modify time sharing and to be designated as the primary residential custodian. Wesley stated that Kristin had been convicted for DUI offenses that had occurred in 2013 and 2015, when she lived in Indiana, and that there was an arrest warrant pending due to her failure to comply with her resulting plea bargain agreement. He asserted that as a result, Kristin "will likely be unavailable to provide for the care, custody and control of the child and it is unknown where the child might be placed in the event [she] is arrested." Wesley went on to remind the court about visitation issues and stated that he had a stable home environment in which he could raise the child. Wesley specifically stated that Kristin's "conduct demonstrates that the child is at risk for serious physical and/or emotional harm." In support of his motion, Wesley attached affidavits from himself and from his current wife, Melissa Hamilton. Both expressed concerns about the child's well-being if she remained in Kristin's custody. Kristin's counsel filed a notice of unavailability due to a conflict in his schedule on the date of the noticed hearing. Counsel also stated that he had not been in contact with Kristin for several years, did not have her contact information, and had not discussed the motion with her.
Following a hearing on August 1, 2017, at which Wesley testified, the court entered an order the following day designating Wesley as the primary residential custodian and providing Kristin with supervised visitation pending an evidentiary hearing on the merits. Neither Kristin nor her counsel appeared. At the hearing, Wesley testified to and provided documentation concerning Kristin's DUI conviction in August 2016 for which she received a two-year suspended sentence pending community service and supervised release. Kristin failed to report to the program, and a warrant was issued for her arrest in October 2016. Wesley expressed concerns for the child's welfare and safety because Kristin did not have a driver's license and for the possibility that she would be placed in foster care or some other social services care if Kristin were to be arrested. The court determined that the child was at risk of imminent harm and that the allegations against Kristin were serious. The court scheduled an evidentiary hearing for later that month, August 15, 2017.
The recording of this hearing was not included in the certified record on appeal. --------
Prior to the scheduled evidentiary hearing, Kristin filed a response to Wesley's motion to modify custody and visitation. She explained that she had been the child's primary caretaker since November 2007, when the child was three months old. Kristin, the child, and her other child had moved to Fort Wayne, Indiana, in September 2008 to live with her mother and stepfather, where they continued to live. She then discussed visitation, and she explained that Wesley had not returned the child to her possession as planned on July 28, 2017. The child had been in his possession for an extended visitation since July 3, 2017. Kristin argued that she was not a danger to the child, stating that she had never operated a motor vehicle while intoxicated when the child was present, had been successfully treated for alcohol abuse, and cited her prior attorney's failure to adequately advise her as to how to set up her home incarceration. The bench warrant had been recalled, and she was planning to report to the Indiana court to set up the home incarceration process. She said that home incarceration would not affect her ability to meet the child's needs as she would be permitted to leave her home for court-approved activities, including work, church, and taking the children to and from school. Wesley moved the court to continue the August 15th hearing because the outcome of Kristin's criminal proceeding had not yet been decided.
The court held the hearing as scheduled, where the parties discussed the pending matters and some testimony was taken. Wesley testified about Kristin's criminal charges and filed certified copies of her court records. He also discussed Kristin's having called the Lexington Police Department three times as well as Kentucky State Police and child protective services to make allegations related to his care of the child during the month of July. Wesley wanted the court to stay the August 2nd order pending a decision by the Indiana court as to how long Kristin would be remaining in jail. He went on to testify about his failure to return the child that August. Kristin also testified about her lack of communication with the child while she was with Wesley in July as well as their discussions regarding when and how long that visitation would be. She testified that she no longer drank alcohol, that she voluntarily went through an alcohol treatment program, and that there was no alcohol in the home. She was preparing for a court appearance in Indiana a few days later. The court continued the remainder of the hearing until August 25th and appointed a guardian ad litem (GAL) to represent the child.
Kristin continued with her testimony once the hearing resumed. She had been granted home incarceration by the Indiana court. Through this program, she was able to take the child to and from school, to take classes, to work, to go to church, and to obtain a weekly pass to do what she wanted with her probation officer's approval. She did not believe she presented any risk of serious harm to the child. Kristin's mother, Darlene Evans, testified that the child had lived in her house since she was 2 weeks old. She reported that the child adored her older brother, who also lived there. The court and counsel questioned the child in chambers. The child stated that she would rather live with her mother, brother, and grandmother, and attend school in Indiana. At the conclusion of the testimony, the parties presented closing arguments and the child's GAL presented her recommendation.
On September 1, 2017, the family court entered an order ruling on the various motions before it. The court made extensive findings based upon the testimony and exhibits filed at the hearings. Based upon these findings, the court concluded that Wesley had failed to satisfy the requirements of Kentucky Revised Statutes (KRS) 403.340 to be designated as the primary residential custodian because he failed to file affidavits with his motion. He had also failed to prove that Kristin posed a serious risk of physical or emotional harm because his arguments concerning the active bench warrant and chance of incarceration were moot based upon the recall of the bench warrant and her home incarceration sentence. The court found Kristin's 2013 DUI to be latent, and as to the 2015 DUI, the court stated that Wesley failed to produce any evidence that Kristin was currently engaging in any behaviors that would put the child at risk. Kristin had attended alcohol abuse treatment classes and had not had any alcohol since 2015. Finally, the court considered the best interests of the child pursuant to KRS 403.340 and KRS 403.270(2), noting that the child wished to live with her mother and to return to her school in Indiana. The court recognized that the child was "far more adjusted to her home in Indiana" as well as her church and community. Therefore, the family court returned the child to Kristin as the primary residential custodian and vacated its previous order.
Wesley moved the court to alter, amend, or vacate its order and for additional findings. He argued that KRS 403.340 and KRS 403.350 did not apply to this case and that the best interest standard applied in modifications of joint custody. He also stated that he had filed two affidavits with his motion. He went on to dispute the court's conclusions in light of the GAL's recommendation that he be designated as the primary residential custodian. Wesley continued to argue that because Kristin was under house arrest, she would not be in the best position to provide care, custody, and control of the child on a full-time basis due to the restrictions imposed on her. Kristin objected to the motion.
In an order entered September 29, 2017, the family court denied Wesley's motion, although it amended the order to reflect that he had filed affidavits in support of his original motion. The court specifically addressed Wesley's argument related to the GAL's recommendation, noting that the GAL was not an appointed fact-finder but rather was representing the child's interests. As to the terms and conditions of Kristin's home incarceration, the court permitted Wesley to provide this information as a supplement as it was not available at the time the matter was pending. This expedited appeal now follows, in which Wesley contends that the family court applied the wrong standard, that the factual findings were clearly erroneous, and that the court's conclusions were not supported by substantial evidence.
An appellate court may set aside a lower court's findings made pursuant to Kentucky Rules of Civil Procedure (CR) 52.01 "only if those findings are clearly erroneous." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). In order to determine whether findings of fact are clearly erroneous, the reviewing court must decide whether the findings are supported by substantial evidence:
"[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted). "[W]ith regard to custody matters, 'the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion.'" Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010) (quoting Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974)) (citing Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982)).
For his first argument, Wesley contends that the family court should have applied KRS 403.320 related to the modification of timesharing in making its decision rather than KRS 403.340 and KRS 403.270. KRS 403.320(3) permits a court to modify visitation "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 403.340, on the other hand, addresses the modification of a custody decree and requires the court to consider the best interests of the child based on the factors set forth in KRS 403.270(2), among other factors, including "[w]hether the child's present environment endangers seriously his physical, mental, moral, or emotional health[.]" KRS 403.340(3)(d). We agree with Kristin that Wesley invoked both KRS 403.320 and KRS 403.340 and that the family court, therefore, applied the proper standard in deciding Wesley's motion. The court properly considered whether there was a risk of serious emotional or physical harm as well as the best interests of the child in reaching its conclusion.
Next, Wesley contends that the family court's findings related to Kristin's home incarceration were clearly erroneous and were not supported by substantial evidence in the record. In support of this argument, Wesley relies upon this Court's opinion in Kelsay v. Carson, 317 S.W.3d 595 (Ky. App. 2010). Kelsay involved a modification of the primary residential parent and whether that would be in the child's best interests. The father had incurred multiple alcohol violations, including two DUIs since the last custody order had been entered in the case, and the court did not believe his assurances that his alcohol issues would not again arise. Wesley likens the situation in Kelsay to the present case in that Kristin did not provide "any solid evidence" that her drinking problem would not reoccur based on her two DUI convictions. However, we agree with Kristin that Kelsay in reality supports her position, not Wesley's, in that the lower court, as the fact-finder, had based its decision on substantial evidence in the record.
The family court addressed this question in the order on appeal, specifically stating that there was no evidence that Kristin was engaging in any alcohol-related risky behaviors. In addition, Kristin had attended alcohol abuse treatment classes and had not consumed any alcohol since 2015. These findings are supported by substantial evidence in the record and are therefore not clearly erroneous. Wesley does not cite to any other evidence that he claims was not supported by the record. Therefore, we shall not address any additional evidence. We do, however, recognize that in her brief, Kristin exhaustively established that the family court's findings were supported by substantial evidence. Accordingly, we find no reason to set aside the orders of the family court in this case.
For the foregoing reasons, the orders of the Floyd Family Court are affirmed.
LAMBERT, D., JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY AND FILES A SEPARATE OPINION.
JOHNSON, JUDGE, CONCURRING IN RESULT ONLY: While I concur with the majority opinion in the outcome of this case, I disagree with the opinion of the family court as to how it reached its final decision. When a final custody decree has been entered, any post-decree determination that is made is a modification either of custody or of timesharing/visitation rights. Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). If a change of custody is sought, then Kentucky Revised Statutes ("KRS") 403.340 governs the case. However, if a timesharing/visitation modification is sought, then KRS 403.320 applies either directly or may be construed to apply. Id. Most importantly to this case, a motion made to change the primary residential custodian is not considered a motion for the modification of custody, but instead, a modification for a change in timesharing. Shafizaden v. Bowles, 366 S.W.3d 373, 375 (Ky. 2011).
Here, the majority agrees that the family court properly applied both KRS 403.340 and KRS 403.320 when deciding this dispute between the parties. Mr. Hamilton requested to be the primary residential custodian. This is a request for a modification of timesharing and so KRS 403.320 is the only applicable statute. Since KRS 403.340 governs a custody change and not a modification of timesharing, the family court applied the wrong statute.
While I disagree with the legal analysis of the family court, it was correct in its final decision. The family court made thorough findings of fact in its decision not to change timesharing. This court will only disturb those findings of facts if they "were clearly erroneous or the decision constitutes an abuse of discretion." Burton v. Burton, 355 S.W.3d 489, 493 (Ky. App. 2011). There is substantial evidence in the record to support the family court's findings. The family court's conclusions of law, however, are reviewed de novo. Gosney v. Glenn, 163 S.W.3d 894, 898-99 (Ky. App. 2005). Applying the findings to the law in this case KRS 403.320 states, "The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]" Based upon the findings of the family court, the best interests of the child would be to keep the mother as the primary residential custodian as modification would be an unwarranted disturbance to the child. Therefore, I join the majority in affirming the opinion of the family court because it reached the right result. Wells v. Commonwealth, 512 S.W.3d 720 (Ky. 2017). BRIEF FOR APPELLANT: Thomas W. Moak
Prestonsburg, Kentucky BRIEF FOR APPELLEE: Daniel Frederick
West Liberty, Kentucky