Opinion
NO. 2016-CA-001275-ME
08-04-2017
SEBASTIAN JOY APPELLANT v. AMANDA JOY APPELLEE
BRIEFS FOR APPELLANT: Rhonda M. Copley Ashland, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE DAVID D. FLATT, SPECIAL JUDGE
ACTION NO. 14-CI-00161 OPINION
AFFIRMING
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BEFORE: ACREE, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Sebastian Joy shares joint legal custody of his two sons with his former wife, Amanda Joy. He challenges an order of the Greenup Circuit Court setting a timesharing schedule with less parenting time than he requested, claiming the trial court applied the wrong standard and abused its discretion in reaching its decision. A motion to alter, amend or vacate the order was denied. Upon review of the briefs, the law and the record, we affirm.
Throughout this litigation, reference has been made to Sebastian's desire for increased "visitation." Occasionally he has mentioned "timesharing." Under Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), use of the term visitation in this context is inaccurate. Sebastian and Amanda agreed to exercise "joint legal custody," but their arrangement is more appropriately termed "shared custody" since "both parents have legal custody that is subject to some limitations delineated by agreement or court order." Id. at 764. Sebastian "does not have 'visitation,' a sole-custody term which is frequently misused in this context, but rather has 'time-sharing (sic),' as he . . . is also a legal custodian." Id. at 764-65.
FACTS
The marriage of Amanda and Sebastian produced twin boys on December 28, 2013. The couple separated in February 2014. Amanda petitioned for dissolution of the marriage a month later. Both parents have flexible work schedules. There is no allegation either parent is unfit. No one has requested a change in custody.
By Settlement Agreement executed June 19, 2014, and incorporated into the Decree of Dissolution entered by the Greenup Circuit Court on June 23, 2014, Amanda and Sebastian share joint legal custody of their sons. Amanda is the primary residential parent. Under the terms of the Agreement—which both parents deemed to be in their children's best interest at the time of execution—Sebastian was permitted to be with the boys every Sunday between 8:00 a.m. and 6:00 p.m., and on Monday and Tuesday between 4:00 p.m. and 8:00 p.m. He was allowed to remove one boy at a time from Amanda's home during daytime hours. He was prohibited from taking the boys out of town until their first birthday. The Agreement also addressed holidays, use of FaceTime, and specified Amanda's mother was the first choice for child care. These conditions were put in place because Sebastian was a first-time father with no child-rearing experience and no family nearby to help him. The Agreement was to be in effect through the twins' first birthday when either parent could seek modification.
The Decree of Dissolution was entered by the Hon. Jeffrey L. Preston, Circuit Judge in Greenup and Lewis Counties, Family Division. When Sebastian moved to modify timesharing, Judge Preston recused because Sebastian is a regular practicing member of the Greenup County Bar. At that point, the Hon. David Flatt, Circuit Judge in Carter, Elliott and Morgan Counties, Family Division, was assigned as Special Judge.
During their first year of life, Sebastian never had the twins overnight and rarely removed both boys from Amanda's home together.
Sebastian's mother lives in India; a sister lives in Bahrain, and another sister lives in Columbus, Georgia. Sebastian testified an aunt helped him with the twins, but gave no details.
On September 4, 2014—before the twins turned one year of age—Sebastian moved for increased parenting time, including a weekly overnight stay; to see the boys together rather than individually; to make up days he had missed with the boys while traveling to Bahrain to visit family; to set a holiday schedule; and to set a time for him to collect his personal belongings from the marital home. Sebastian and Amanda testified at a hearing the following month when the twins were eleven months old. Afterwards, the trial court overruled Sebastian's request to modify timesharing finding:
At the time of this hearing, Sebastian had never cared for both boys overnight alone. There had been only one overnight stay during which an aunt helped him.
the parties' agreement is clear and concise. The parties executed the agreement on June 11, 2014 and represented that the agreement was in the best interest of the parties' children. The Court finds that no change in circumstances exists that would warrant a modification of the timesharing previously agreed upon between the parties.
Around the twin's first birthday, late December 2014, the couple reconciled and Sebastian moved back into the marital home. On March 28, 2015, they separated for a final time. Afterwards, Amanda allowed Sebastian more generous visitation than stated in the only Agreement ever presented to and approved by the trial court. She now allowed Sebastian to see the boys in her home—while she was at work—on weekdays between 8:00 a.m. and 5:00 p.m., and every other weekend between 6:00 p.m. Friday and 6:00 p.m. Sunday. Amanda's mother was present during each of Sebastian's unscheduled visits.
After about six months, Amanda considered Sebastian's impromptu visits an intrusion on her privacy and realized he was abusing her generosity. Rather than remaining downstairs in the public areas of the home, he ventured upstairs into her private quarters. On September 3, 2015, she moved the court to establish a timesharing schedule based on the Standard Greenup County Timesharing Guidelines Schedule B with specified exceptions—believing a set schedule would provide stability for her sons and be in their best interest. Her proposal still gave Sebastian more time with the twins than the standard guidelines and included an overnight stay every Tuesday. Amanda's suggested changes dealt mostly with holidays, religion, removal of Amanda's name from the mortgage on Sebastian's law office and destruction of fertilized eggs. Finally, she asked that an acquaintance of Sebastian's—whom she feared—have no contact with the twins.
Friday, September 4, 2015, was a pivotal day for this one-time family. Amanda had planned to leave work early to spend the afternoon with her boys. About two weeks ahead of the planned outing, she notified Sebastian and asked him to leave her home by noon. When Amanda arrived at home, Sebastian—and his mother—were still in Amanda's house. Sebastian refused to leave. Amanda told the boys to say "bye to daddy" and placed the twins in her van. As she attempted to drive away, Sebastian blocked her departure with his vehicle, prompting both Amanda and Sebastian to call police. With police on the scene, Sebastian ultimately left. Police advised Amanda to adhere to the court-approved timesharing schedule; she followed their advice.
That same day, Sebastian moved for an immediate emergency order "granting him visitation with the parties' children over the next two weeks as agreed upon by the parties." As grounds, he claimed Amanda had "reneged on the agreed visitation agreement and [Sebastian's] mother, who is in town for visitation, is being limited in access to the parties' children."
One week after the driveway incident, Sebastian filed an emergency verified motion seeking a temporary injunction claiming he and Amanda had reached a second written agreement—a calendar allowing him to see both boys together—the product of a mediation session with Dr. Andrea Evans. Sebastian posited Amanda had unilaterally chosen to ignore this mediated agreement and was again allowing him to see only one child at a time as provided in the original Agreement. Amanda opposed the motion.
It would come to light that Evans was Sebastian's therapist initially, and then both Sebastian and Amanda met with her. Evans is not a mediator, nor does she mediate domestic relations cases. The "calendar" was part of an unsigned e-mail for which no consideration was given. The trial court directed Sebastian to stop referring to the calendar as a written agreement.
On October 5, 2015, a hearing occurred to address Amanda's motion for the trial court to establish a timesharing schedule and Sebastian's motion for an injunction. The twins were now twenty-one months old.
Amanda opposed the motion for an emergency order allowing family visitation. She testified Sebastian had the twins in his home five weeks—late June through September 4, 2015—from 7:45 a.m. until 5:00 p.m. while his mother visited. During an additional two weeks, Sebastian's mother saw the boys daily in Amanda's home. Amanda believed her proposed timesharing arrangement would eliminate "difficult" negotiations between herself and Sebastian which usually ended with her caving in to his requests.
In describing her interaction with the boys, Amanda testified she comes home from work each evening and cares for the twins alone. She feeds them dinner and snacks, puts them to bed, takes care of their medical appointments (which Sebastian usually attends), awakens them each morning, and cares for them on weekends. In contrast, she testified when Sebastian comes to her home to see the boys, Amanda's mother assists him, and when the boys go to his home, he has help from either his own family or Amanda's mother. In describing his role in "bathing, feeding, changing and reading stories and playing and so on [with the boys]," Sebastian testified he fed them, changed diapers, played with them and put them down for naps.
In describing the driveway incident, Sebastian acknowledged Amanda had indicated she would be taking off from work early that Friday to spend the afternoon with the twins. While Friday was not a court-approved day for him to spend with the boys, he planned on doing so because his mother would soon return to India. Sebastian testified he gave Amanda three options:
you can let me have them overnight on Thursday night which is the first option. The second option was you can let me stay there until 5:15 or the third option was that you could let me have them or see them at noon on Labor Day which would make up for those five hours that I was going to miss with them. She chose none of them.Amanda's attorney challenged the completeness of the facts Sebastian had provided the court in his motion for an emergency visitation order.
Q: And did [Amanda] tell you two weeks in advance, look I've been letting your family visit, I've been letting you visit in my home, your mom has been in my home, I want this one afternoon with the boys and I'm going to be off work and I'd like to have the boys and I'd really like for you to leave at noon Sebastian?
A: She told me three days before.
Q: You weren't notified two weeks in advance?
A: She notified me that she was going to take off on the 28th and I said that's fine because I have to take my sister back to the airport and other than that she told me three days before.
Q: Okay so under your theory of what happened you knew three days before?
A: Yes.
Q: You knew that you didn't have a court order?
A: Correct.Later the trial court asked Sebastian, "Let me get this right. You blocked her car in her driveway?" Sebastian replied, "Yes." Still later, Amanda's attorney asked, "Well weren't you at [Amanda's] house on days that weren't your days?" He answered, "Yes I was." In an ironic twist, Amanda's attorney pointed out many of the photos Sebastian had entered into the court record—depicting the boys with his family—were taken on days he alleged Amanda had denied his family access to the twins. Ultimately, Sebastian admitted the boys need consistency.
Q: And when she came home you refused to leave is that right?
A: Yes.
Q: Did you block her vehicle in with your vehicle? (no response)
Q: And nowhere in that motion did you tell the judge that she had been giving your mother visitation and your mother had seen the boys numerous times.
A: If it's not in there I guess not.
Q: And let's talk about your sister. When was your sister in Greenup County wanting to visit with the boys?
A: She was here June 28th until July 9th. We left . . .
Q: Let me stop you. Did she see the boys then? Did you ask for her to see the boys?
A: Yes.
Q: And Amanda allowed her to see the boys? No problems or issues?
A: Sure.
Q: Did you put that anywhere in your emergency motion?
A: I did not.
When proof concluded, the trial court found both parents to be committed and loving and decided joint custody would continue with Amanda as the primary residential parent, but the inability of the parents to cooperate made a 50/50 timeshare impractical. Therefore, the court ordered the parents to follow the Standard Guidelines Schedule B with modifications, giving Sebastian all day Tuesday with the boys, if he was not working, and Tuesday overnight, plus at least four hours on Thursday evening when he did not have the twins for the weekend. The court mentioned Sebastian's desire for he and Amanda to raise the twins together, stating:
[Sebastian said] he wants to raise the kids together. Because the parents are divorced the parents cannot raise the children together, they can both parent and be good parents but parenting together is not going to happen particularly in this case. Divorce causes changes and disruption in kids' lives, it's a fact of life. To believe otherwise is just a fantasy.On the matter of the request for an emergency order of visitation and a temporary injunction, the court found:
there was no emergency, the Court specifically finds it's somewhat deceptive to leave out the pertinent facts that there had been visitation with [Sebastian's] family prior to the time those motions were filed. The motions leave the very clear impression that his family had been denied
such visits or had not gotten to see the kids in a long period of time. I find that omission to be borderline deceptive. The parties have tried to enforce a non-existent mediation agreement which was set forth in the September 11th motion and called a mediation agreement and then another e-mail was introduced today which purports to be another agreement, again unsigned. Reliance on this so called (sic) agreement even to the point of blocking [Amanda's] car in her own driveway is quite amazing to this Court. [Sebastian] as an attorney is well aware of what does and does not constitute an enforceable agreement. As to timesharing none existed. Again the motions for injunctive relief are overruled.On December 11, 2015, the trial court entered a written order explaining its rationale for the timesharing schedule.
With regard to timesharing, the Court finds that it is in the best interest of the parties' minor children to establish a specific timesharing schedule. It is clear to the Court that the agreement [Sebastian] refers to is not an agreement and is not a Court Order. The Court finds that both parties are committed to parenting their children. [Amanda] has been the primary caregiver of the children. Both parties have somewhat flexible work schedules. Pursuant to the parties' Settlement Agreement entered on or about June 23, 2014, the parties agreed to joint legal custody with [Amanda] having primary residential custody of the parties' minor children. It is apparent to the Court that the parties are totally incapable of exercising shared parenting on a 50/50 basis in that they cannot cooperate and cannot get along with one another. The Court heard testimony that most recently [Sebastian] usually spends 1-4 hours per day with the parties' minor children during the day while [Amanda] is working and he has had every other weekend with the children. The Court finds that it would be in the minor children's best interests for [Amanda] to continue to be designated as the primary residential custodian and for [Sebastian] to have specific timesharing with the parties' minor children in accordance with the Greenup County Timesharing Guidelines, Schedule B with the following modifications:
[followed by three pages of specifications].Ten days later, on December 21, 2015, Sebastian moved the trial court to alter, amend or vacate its order claiming the court had used an erroneous standard—reducing the time he may spend with his sons, not because it is the boys' best interests, but because he cannot get along with his former spouse. Amanda opposed the motion.
On January 12, 2016, from the bench, the trial court overruled the motion to alter, amend or vacate the order entered December 11, 2015, and noted the action on the calendar. A written order overruling the motion was finally entered August 1, 2016. Sebastian filed a timely notice of appeal. However, he did not explain whether and how the arguments he alleges on appeal were presented to the trial court and preserved for our review as required by CR 76.12(4)(c)(v). Because he did reference the motion to alter, amend or vacate he filed, we can easily determine the claims were raised below and proceed with review. Counsel should adhere to the rules of appellate practice in the future. Against this backdrop, we consider whether the trial court applied the proper standard in determining Sebastian's request for greater timesharing and whether it abused its discretion in awarding Sebastian less than a 50/50 timeshare.
Kentucky Rules of Civil Procedure.
ANALYSIS
Sebastian correctly states this case is not about custody. He and Amanda agreed to joint legal custody in their original Agreement. There has been no request for change and no change has been ordered by the trial court.
The only question being debated is the amount of time Sebastian should spend with the twins. Under joint legal custody, "[e]qual time residing with each parent is not required, but a flexible division of physical custody of the children is necessary." Id. at 764. Sebastian asked the court to evenly divide parenting time such that he had the boys half of the time and both he and Amanda saw each child every day. Amanda urged use of the standard Greenup County Guidelines, Schedule B, with modifications, which was more generous to Sebastian than the standard guidelines.
No statute explains how to modify a timesharing agreement when parents share custody. Pennington, 266 S.W.3d at 768. However, a trial court may modify timesharing when it is in the best interests of the children to do so. Id.; see also KRS 403.320(3); Kelsay v. Carson, 317 S.W.3d 595, 596 (Ky. App. 2010). There being no definition of the term "best interests," the matter is left to the trial court's discretion. Pennington, at 769.
Kentucky Revised Statutes. --------
Our review is governed by CR 52.01. The trial court's findings of fact will be set aside only if clearly erroneous. We must give due regard to the trial court's assessment of witness credibility. See Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008). The three questions we consider are whether the trial court clearly erred in reaching its findings, applied the correct law, and properly exercised its discretion. Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010).
The trial court set a timesharing schedule—because Sebastian and Amanda could not agree among themselves—based on the Greenup County Guidelines, Schedule B. The court's schedule closely mirrors the amount of time Sebastian had most recently spent with his sons and includes the overnight weekly stay Sebastian requested. The trial court awarded Sebastian some—but not all—of his demands—a risk of leaving important decisions to someone else.
In his brief, Sebastian states he "requested a shared timesharing schedule permitting him the same freedom that he had from December 29, 2014 through September 2015." While he considered that schedule workable, Amanda clearly did not, as evidenced by her request for a different schedule. Sebastian believed his constant stopping by Amanda's home to see the boys after the couple's final separation worked well. And apparently it did—for him. But Amanda testified it became "uncomfortable"—especially after Sebastian prevented her from leaving her own driveway with the boys—and "unfeasible"—words Sebastian ignores.
In his motion to alter, amend or vacate, Sebastian took the trial court to task for finding he and Amanda "cannot get along, nor can they cooperate with each other," declaring those words to be "a clearly erroneous finding made by the court." We are baffled by such a strong pronouncement. Sebastian has failed to demonstrate, or even allege, he and Amanda can get along, and their inability to work things out on their own is evident from the record which is replete with motions and hearings to resolve issues the parties could not resolve themselves.
Sebastian quibbles with the trial court allowing Amanda to have the boys portions of Thanksgiving and Christmas, although his phrasing suggests he will see neither child on either day. We remind Sebastian of his testimony during the hearing on November 14, 2014:
Q. Now are you asking that you get some specific time dealing with the major holidays?Sebastian claims the court's order directs "EVERY thanksgiving (sic) and EVERY Christmas holiday be spend (sic) with [Amanda]." In reality, under the court's schedule, Sebastian has the boys Christmas Eve until 9:00 p.m. Amanda then has the twins most of Christmas Day, but Sebastian "shall have them from 8 am until 11 am on Christmas Day." As for Thanksgiving, Amanda has them that day—which Sebastian admits he does not celebrate—but once the boys begin school, Sebastian will have the boys "half of the Thanksgiving Break."
I don't have any problem with her having the children during the holidays because her family, like I said I have no family here. My closest family, I have two sisters, one of them lives in Bahrain which is, you know, a seventeen hour flight away from here and another one lives in Columbus, Georgia. Those are my two closest family. We don't celebrate Thanksgiving, her family does. I have no problem with her having that entire Thanksgiving break.
Sebastian erroneously suggests the trial court should have considered the nine factors listed in KRS 403.270(2). That statute pertains to custody, which he acknowledges is not being debated in this appeal. KRS 403.320(3) is the only applicable statute and modification of timesharing turns entirely on the best interests of the children.
Based on the children's best interests, the trial court chose a schedule closely mirroring the most recent amount of time Sebastian had spent with the boys. Furthermore, it based its decision on Guidelines adopted for Greenup County and approved by the Supreme Court of Kentucky in 2005. Sebastian did not receive his entire wish list, but that in no way means his parenting time has been restricted.
Lastly, we do not deem the trial court's finding of a total lack of parental cooperation to be the basis for its division of parenting time. Lack of cooperation is simply an indisputable fact of Sebastian's broken relationship with Amanda.
Amanda requested a schedule. Even Sebastian ultimately admitted the twins need consistency. The trial court concluded a specific timesharing schedule would afford the children needed consistency and be in their best interests. After scouring the record, particularly the challenged order, we have no grounds to conclude the trial court applied the wrong standard or in any way abused its considerable discretion. To the contrary, the judge patiently listened to lengthy testimony and rendered a decision consistent with the proof and the law. Discerning neither error nor abuse of discretion, we AFFIRM the order of the Greenup Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Rhonda M. Copley
Ashland, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye
Russell, Kentucky