Opinion
NO. 2013-CA-001349-ME
08-29-2014
KERI BASHAM HUGHES APPELLANT v. JOSHUA RANDALL HUGHES APPELLEE
BRIEF FOR APPELLANT: William D. Tingley Louisville, Kentucky BRIEF FOR APPELLEE: Michael Davidson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE BARBARA L. PAUL, JUDGE
ACTION NO. 12-CI-00112
OPINION
AFFIRMING
BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES. MOORE, JUDGE: Keri Basham Hughes appeals the Harrison Circuit Court's Supplemental Findings of Fact, Conclusions of Law, Final Decree, Judgment and Order in which Keri and Joshua were ordered to exercise joint custody of their minor child, as agreed in their mediation agreement, and in which the court adjusted the parties' timesharing to make it more suitable to their current circumstances. Keri also appeals the Harrison Circuit Court's Order overruling her motion to alter, amend, or vacate its judgment in which the court also ordered (1) no make-up timesharing for Joshua; (2) the parties to get a parenting coordinator in place as suggested by the child's counselor, Ms. Valerie; (3) the parties to follow the timesharing as ordered; and (4) Joshua to obtain an assessment regarding counseling, anger management, domestic violence, and other issues regarding the divorce with a written report to the court with recommendations for treatment and if further assessment is needed. Keri alleges the court erred in its determination of timesharing for failing to consider evidence of Joshua's domestic violence. After review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Keri and Joshua were married on September 1, 2007, and one child, was born of the marriage in 2008. Joshua filed a petition for dissolution of marriage on May 7, 2012. The parties mediated on two occasions. First, Keri and Joshua came to agreement on May 31, 2012, to exercise joint custody of the child wherein the child would stay with Joshua Sunday through Friday and with Keri on the weekends. This was to remain in effect until Keri returned to the marital residence in Cynthiana, Kentucky, and to work locally. The mediation agreement appeared to resolve all issues in the divorce, and an agreed order incorporating the agreement was entered in Harrison Family Court on June 7, 2012. However, the parties did not follow terms of the agreement.
The second mediation agreement was entered into on October 4, 2012. Again, the parties agreed to exercise joint custody of the child, but the timesharing arrangement agreed to at this mediation was that the child would stay with Joshua on Monday and Tuesday of each week, with Keri on Wednesday and Thursday each week, and alternate on the weekends staying with each parent. The Harrison Family Court held a hearing on May 10, 2013, to settle issues contested within the mediation agreement. Both parties agreed at the hearing that the first mediation agreement entered into was binding.
At the hearing, Keri requested that the child live with her in order to attend school in Scott County. Keri currently lives in Georgetown, Kentucky, and works for Humana in Louisville. She testified that on Monday and Tuesday she works in Louisville, and on Wednesday and Thursday she works from home. On Fridays that Keri does not have the child, she works in Louisville, and on Fridays that she does have the child, she takes the day off from work. This has caused her to be in jeopardy of losing her job.
Joshua requested that the child live with him, attend school in Harrison County, and see Keri every other weekend. Joshua lives with his parents in Cynthiana, Kentucky, and is unemployed at this time. He has three Associate Degrees and does some contract work when it is available. He testified that he has a hard time finding employment because of a Domestic Violence Order "(DVO") Keri has against him in Scott County.
During the course of the dissolution proceedings, two Emergency Protective Orders ("EPO") were entered against Joshua. The first was entered in December 2012 by the Scott Family Court and was transferred to the Harrison Family Court for a hearing. However, it was dismissed by the Harrison Family Court for failure to establish that an act of domestic violence or abuse had occurred or may occur. The second resulted in a DVO issued by the Scott Family Court against Joshua with an order for him to attend a Batterer's Intervention Program administered by the Family Violence Project. Joshua testified to his attendance in the program in Harrison Family Court at the dissolution proceeding, and the court took notice of his poor attitude and demeanor towards his participation. There was no further evidence regarding domestic violence presented by Keri at the May 10, 2013 proceeding.
Joshua enrolled the child in preschool in Harrison County. Both parties were given freedom to enroll the child in the kindergarten of their choice at the case management conference. In the event the parties could not agree on a school, the court would decide. Joshua enrolled the child in Harrison County schools for kindergarten. Keri testified that she would prefer the child to attend Scott County schools, but she did not enroll the child in kindergarten.
The Harrison Family Court entered a final decree, judgment, and order on June 12, 2013, in which it found the timesharing agreed to at the second mediation to be too disruptive for a child just beginning kindergarten and adjusted the arrangement accordingly. The court ordered the parties to continue to exercise joint custody, and neither party was designated as the primary residential parent. The court further ordered the child to attend Harrison County schools for kindergarten, and the parties should attempt to agree on where the child will attend first grade. The timesharing arrangement for the summer was to remain as was currently in place unless otherwise agreed by the parties in writing. When the child begins school, the timesharing was ordered to be with Keri every Thursday at 6 p.m. to Sunday at 6 p.m., and with Joshua Sunday at 6 p.m. to Thursday at 6 p.m. Keri was expected to get the child to school on Fridays. Holiday timesharing remained as agreed to in the first mediation agreement, and timesharing for summers was ordered to be alternating weeks unless otherwise agreed to by the parties in writing. The parties were permitted to utilize grandparents or family friends in exchanging the child or getting the child to and from school.
On June 6, 2013, Keri filed a third petition for an EPO in Scott Family Court, based on an affidavit of Michael Finucane, the social worker employed with the Family Violence Project who worked with Joshua after he was ordered by the Scott Family Court to enroll in the program, stating that Joshua's "[n]arcissism, [s]ense of [p]ersecution, and expressions of [h]opelessness and [p]owerlessness led me to conclude that he represented a threat to his wife. . . . I had explained to her that I had concerns about Josh's anger and state of mind and had reason to believe he was a risk to go to her house and harm her and or their child." Mr. Finucane drew this conclusion based on Joshua's behavior in the program on June 4, 2013, wherein he refused to participate in a routine exercise, but instead he began perseverating about Keri and the injustices perpetrated against him. Mr. Finucane stated that Joshua's behavior was unprecedented in his eleven years of doing Batterer's Intervention for a client with fifteen weeks in the class. Joshua left without incident when he was asked to leave that class and return next week where he would be expected to complete the exercise or else be dismissed permanently. Mr. Finucane recommended that Keri not release the child to Joshua because he was presenting with signs of suicidal and homicidal ideations, that he may hurt himself or the child. Joshua was permanently dismissed from the program after this incident on or shortly before June 12, 2013, for refusing to be accountable for his abusive behavior and participate appropriately in group.
Keri filed a motion to alter, amend, or vacate the Harrison Family Court's final judgment on June 21, 2013, to which she attached Mr. Finucane's affidavit. Relevant to this appeal, Keri requested temporary custody of the child and suspension of timesharing based upon Mr. Finucane's affidavit.
Joshua filed a motion to return the child and for make-up timesharing on June 18, 2013, to resume the timesharing as ordered by the Harrison Family Court. The Scott Family Court had entered an emergency protection no contact order between Joshua and the child. Joshua also filed an emergency ex-parte motion for temporary custody on July 5, 2013, citing Keri's failure to follow the orders of the court when it came to timesharing the child, and additionally stated that he was concerned with Keri's mental health and feared she would flee with the child.
On July 3, 2013, the Harrison Family Court addressed the parties' motions. The court overruled Keri's motion to alter, amend, or vacate. The court also ordered (1) no make-up timesharing for Joshua; (2) the parties to get a parenting coordinator in place; (3) the parties to follow the timesharing as ordered; and (4) Joshua to see Adams and Associates for an assessment regarding counseling, anger management, domestic violence, and other issues regarding the divorce with a written report to the court with recommendations for treatment and if further assessment is needed as soon as possible. The court reiterated that the case would be reviewed in September as scheduled in the previous June 12, 2013 order. The court also entered an order on July 5, 2013, in which it overruled Joshua's emergency motion for temporary sole custody and noted that the Scott Family Court EPO was amended to be consistent with the timesharing previously ordered by the Harrison Family Court. Keri appeals the Harrison Family Court's July 3, 2013 order.
STANDARD OF REVIEW
"[T]he change of custody motion or modification of visitation/timesharing must be decided in the sound discretion of the trial court." Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). It is also well settled that an appellate court may set aside a lower court's findings:
only if those findings are clearly erroneous. And, the dispositive question that we must answer, therefore, is whether the trial court's findings of fact are clearly erroneous, i.e., whether or not those 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.Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted). See also CR 52.01; Reichle v. Reichle, 719 S .W.2d 442 (Ky. 1986). We review the trial court's application of the law to those facts de novo. Lindley v. Paducah Bank & Trust, 114 S.W.3d 259, 263 (Ky. App. 2002). The appellate court must be highly deferential to a family court's determination with respect to timesharing and may reverse it only if it constitutes a manifest abuse of discretion. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000).
Kentucky Rules of Civil Procedure.
ANALYSIS
Keri asserts two arguments on appeal. First, she argues that the trial court erred as a matter of law when it failed to consider in its visitation/parenting time decision the evidence of Joshua's domestic violence. Secondly, Keri contends that the trial court abused its discretion when it failed to grant her motion to alter, amend, or vacate its judgment after being presented with the affidavit of the social worker, Mr. Finucane, that Joshua posed a threat to Keri and their child.
Specifically, Keri first argues that the trial court erred when it failed to make the required statutory finding of the effect of the domestic violence on the child and its effect on the child's relationship to both parents pursuant to Kentucky Revised Statutes (KRS) 403.270(3). However, Keri's reliance on KRS 403.270(3)
is misplaced as that statute deals with custodial issues. The parties agreed to joint custody in both mediation agreements, and furthermore, at the hearing, both Keri and Joshua stipulated that the first mediation agreement was binding. The family court, having determined that both parties agreed to joint custody during mediation, considered the testimony and evidence presented in order to determine timesharing between the parties.
Joint custody as a legal concept has several defining characteristics. Both parents have responsibility for and authority over their children at all times. Equal time residing with each parent is not required, but a flexible division of physical custody of the children is necessary. A significant and unique aspect of full joint custody is that both parents possess the rights, privileges, and responsibilities associated with parenting and arePennington v. Marcum, 266 S.W.3d 759, 764 (Ky. 2008). We refer to timesharing throughout this opinion as it applies to joint custody situations. Anderson v. Johnson, 350 S.W.3d 453, 455 (Ky. 2011) (the terms "timesharing" and "visitation" are often used interchangeably and are functionally the same thing, though visitation applies to sole custody situations). Moreover, changing how much time a child spends with each parent does not change the legal nature of the custody agreed to or ordered. Pennington, 266 S.W.3d at 767.
expected to consult and participate equally in the child's upbringing.
While Keri and Joshua agreed that joint custody was appropriate, they could not agree to a timesharing arrangement acceptable to both parties. Prior to the entry of a decree, a court may determine timesharing or visitation pursuant to KRS 403.320, which may be modified whenever it is in the child's best interests to do so. Id. at 765; KRS 403.320(3). Furthermore, KRS 403.320(2) provides that "[i]f domestic violence and abuse, as defined in KRS 403.270, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health."
At the hearing, the family court heard testimony from several relevant witnesses, and accordingly, made findings regarding what it believed was in the child's best interests. The court found that the child had a strong relationship with his father based on Joshua's testimony and numerous pictures showing the nature of their bond. Also, the court found that the child had not missed any days of school when in Joshua's care, but had missed several days of school when with Keri. The court heard testimony from an administrator at the child's school and his teacher stating that he did very well in the classroom and got along well with the other students and teachers.
The evidence pertaining to the DVO and the Batterer's Intervention Program consisted of Joshua's acknowledgment of the order and his participation in the program. In regards to his testimony, the family court found:
[Joshua]'s attitude and testimony regarding the program he is to attend resulting from the DVO did not set well with this Court. [Joshua] became surly and his testimony was that he had to attend but he did not accept that he could "learn anything" from the program. [Joshua] should adjust his attitude in this matter and take advantage of what he might be able to learn that will keep him from being in this situation again.
Additionally, the family court considered the report submitted shortly before the hearing by Ms. Valerie, the child's counselor he began seeing after the domestic violence petition was filed. The report indicated that the child was doing remarkably well under the circumstances, and stated that "[the child] does not display any symptoms of anxiety related to separating or reunifying with either parent and presents with the same eagerness and interactive personality, regardless of which parent has brought him to the session." The report also made recommendations to both Joshua and Keri to continue to meet the child's needs. The court found the report to be helpful and considered it in making its timesharing determination. After consideration of the evidence presented relevant to the child's best interests and the domestic violence, the family court ordered its timesharing arrangement. Accordingly, based upon the evidence presented at the time of the court's ruling, we cannot say that the court abused its discretion in making this determination.
Next, Keri asserts that the family court abused its discretion in overruling her motion to alter, amend, or vacate its judgment in its July 3, 2013 order because it failed to consider new evidence that came into existence shortly after the May 10, 2013 hearing. The new evidence Keri wanted the court to consider was the affidavit of Mr. Finucane attesting to Joshua's behavior on June 4, 2013, and a letter stating that Joshua had been dismissed from the Batterer's Intervention Program he was ordered to attend by the Scott Family Court.
Keri contends in her brief that her motion was brought pursuant to CR 59.05; however, a CR 59.05 motion cannot be granted on facts that did not exist at trial. Although a trial court may grant a motion to alter, amend, or vacate a judgment if the movant presents newly discovered evidence that was not available at the time of trial, such evidence must be of facts existing at the time of trial. Gullion v. Gullion, 163 S.W.3d 888, 894 (Ky. 2005). The evidence Keri asked the court to consider pertained to events that occurred after the May 10, 2013 hearing, and therefore, it would be inappropriate for the court to consider the affidavit and accompanying letter in granting her motion. Additionally, we point out that if facts have occurred since the trial that justify a change of custody or timesharing, the law provides a method to remedy such a situation in KRS 403.340 and in KRS 403.320. The Harrison Family Court retains jurisdiction over the parties and this case to issue future rulings based on motions properly made before it.
KRS 403.340(2) provides "[n]o motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that: (a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or (b) The custodian appointed under the prior decree has placed the child with a de facto custodian."
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Furthermore, the motion itself, although designated as a verified motion to alter, amend, or vacate by Keri, does not specifically state that it was brought pursuant to CR 59.05, and it does not appear the family court treated it as such. The court granting the divorce retains jurisdiction to revise orders relative to the care and custody of a child if it appears that conditions have changed since the entry of that judgment. Duncan v. Burnett, 292 Ky. 269, 166 S.W.2d 419, 421-22 (1942). Keri's motion requested temporary custody of the child, suspension of timesharing, a protective order for the child, and an order of contempt for Joshua based on events occurring after trial and entry of the original judgment. We view the Harrison Family Court's July 3, 2013 order as a supplementary post-judgment order exercising its continuing jurisdiction in addressing the change in circumstances from the court's original judgment. The Kentucky Supreme Court has "long held in many instances that a trial court has continuing jurisdiction to enter supplementary and ancillary post-judgment orders[.]" Penrod v. Penrod, 489 S.W.2d 524, 527 (Ky. 1972). The only restriction is that "any action taken by the trial court . . . shall in no way modify or change the judgment of the trial court which is being considered upon an appeal then pending." Id.
An order requiring Joshua to seek an assessment regarding counseling, anger management, domestic violence, and other issues regarding the divorce is certainly supplementary to the court's June 12, 2013 final judgment, as well as relevant to the child's interests and welfare. The court's action of ordering Joshua to complete an assessment for his issues without altering the most current custody and timesharing arrangement was in the family court's discretion, having considered the testimony and the credibility of the parties. Accordingly, we find neither error nor abuse of discretion in the court's July 3, 2013 order overruling Keri's motion.
CONCLUSION
For these reasons, the final decree, judgment, and order of the Harrison Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky
BRIEF FOR APPELLEE: Michael Davidson
Lexington, Kentucky