Opinion
2023-CA-1040-MR
11-22-2024
MEGAN KING APPELLANT v. ALEXIS CRUZ APPELLEE
BRIEF FOR APPELLANT: Darrell A. Cox Covington, Kentucky BRIEF FOR APPELLEE: Michael W. Bouldin Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT HONORABLE TERRI SCHOBORG, JUDGE ACTION NO. 12-J-00396
BRIEF FOR APPELLANT: Darrell A. Cox Covington, Kentucky
BRIEF FOR APPELLEE: Michael W. Bouldin Covington, Kentucky
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
OPINION
CALDWELL, JUDGE
Megan King ("Mother") appeals from the Kenton Family Court's judgment modifying timesharing and ordering that E.L.C. ("Child") switch from a school near Mother's home in Ohio to a private, Catholic school near the home of Alexis Cruz ("Father") in Covington, Kentucky. We affirm.
The Chief Judge of this Court entered an order stating that this case would be treated as a confidential matter, apparently due to this case originating as a juvenile case (a paternity action) in which Father sought joint custody of Child. See Rules of Appellate Procedure ("RAP") 5(B)(2). However, a majority of the Judges in this matter determined the order should not apply as the action is now a case regarding timesharing between the parents and the minor child is not a party and so precedent as set out in Aldava v. Johnson, 686 S.W.3d 205 (Ky. 2024), should prevail and that RAP 5(B)(2) only pertains to juveniles if they are parties to the action as provided for in Kentucky Revised Statute (KRS) 610.340. The authoring Judge would have used the initials of the parties to maintain confidentiality.
FACTS
Child was born to Mother and Father in 2011. Mother and Father were never married to one another. Father filed a paternity action in Kenton Family Court in 2012. He averred that Mother and Child had been living in Kentucky until February 2012, but Mother had recently moved to Ohio.
Though Child resided primarily with Mother in Ohio for many years, apparently no one argued it would be more appropriate to resolve the parties' disputes in Ohio courts rather than Kentucky courts. In any event, the family court clearly had subject matter jurisdiction over this type of case (disputes relating to child custody and parental timesharing). And no one has raised any challenge to the family court exercising jurisdiction over this particular case involving these parties. See generally Nordike v. Nordike, 231 S.W.3d 733, 737-38 (Ky. 2007) (discussing three types of jurisdiction - personal, subject matter and particular case jurisdiction - and noting that subject matter jurisdiction cannot be waived).
A few months later, the family court entered an Agreed Judgment of
Paternity finding Father to be Child's father and establishing a child support obligation. In 2013, it entered an Agreed Order stating that Mother and Father had joint custody of Child with Mother to be the primary residential parent.
The family court entered another agreed order in August 2015. This agreed order stated that once Father had a home of his own with a room for Child, that he would have parenting time on alternate weekends as well as parenting time each Wednesday from 4 PM to 8 PM. It also set forth specific parenting time provisions about holidays, birthdays, and school breaks. And it stated the parties must equally share the costs of day care, unreimbursed medical expenses, and other expenses.
The August 2015 Agreed Order also stated: "That the child will not spend the night with Petitioner [Father] until he has his own home and a bedroom for the child unless by agreement of the parties." (Record on Appeal ("R."), p. 38). Father apparently never moved from his parents' home and Child had overnight visits there - presumably with Mother's implicit agreement - for some time prior to Father filing a motion to modify his timesharing based on the testimony.
The August 2015 Agreed Order also noted that Mother and Child then resided in Brown County, Ohio. It also stated that if Father moved to Brown County, Ohio before Mother moved out of that county, then Child must reside in Brown County, Ohio until she turned 18 and graduated from high school. It also stated that if Mother chose to relocate from Brown County, Ohio before Father moved there, that Mother could move anywhere in Ohio with Child.
In late 2018, Mother filed a verified application for an order for Father to show cause why he should not be held in contempt for failure to pay child support. In April 2019, the family court found Father to be in contempt for failure to pay child support. Following the resolution of contempt proceedings, nothing else was filed in the family court record for about three years.
In April 2022, Father filed a verified motion requesting the appointment of a friend of the court ("FOC") and modification of timesharing. He noted Child was then nearly 11 years old and stated he believed modification of parenting time would be in her best interest. He suggested he should receive additional parenting time in the summer and requested review of the "current parenting schedule, schooling and transportation." (Later court filings indicate he also sought for Child to attend school near his house and to live primarily at his house when school was in session.)
The family court appointed an FOC and Mother filed a response opposing Father's motion for parenting time modification. Mother also filed a supporting affidavit. She stated that Father, his girlfriend, and their four sons were residing with Father's parents and suggested the house was not big enough to accommodate another person. She further asserted that Father "cannot provide the parties' minor child with appropriate living arrangements necessary for a modification such as her own bedroom." She also averred Father had failed to contribute to her day care expenses for Child for the past three years.
In October 2022, the family court entered a written note indicating the parties would be attending mediation. After mediation did not resolve all disputes, the family court scheduled a hearing on Father's motion for timesharing modification.
The family court heard evidence, including the testimony of Mother and Father and his girlfriend and the FOC, and arguments of counsel in hearings conducted in late May and early August 2023. Shortly before the May 2023 hearing, the FOC filed a report with recommendations.
In her report, the FOC noted she reviewed case pleadings, Child's school records, and the report of a guardian ad litem ("GAL") filed in an Ohio divorce action between Mother and her ex-husband regarding custody of their son, Child's half-brother. The FOC also reported interviewing Mother, Father, and Child. The FOC also stated she visited the home where Father and his family lived due to Mother's allegations that Father's home was not clean or spacious enough and/or that Child lacked her own room there.
The FOC noted that Mother opposed any changes to the parenting time schedule, while Father sought modification so that Child would reside primarily in his home and attend a nearby Catholic school. The FOC also noted that Child currently resided primarily with Mother and Mother's younger child from Mother's former marriage. She recognized that the GAL in Mother's divorce case recommended in a report that Mother's child from her former marriage continue to reside primarily with Mother.
The FOC noted Father, his girlfriend, and their four sons lived with Father's parents in a house in Covington located near Father's parents' store and within walking distance of a Catholic school which the school-age sons attended. (Father's sons were all younger than Child.) The FOC noted Mother's concerns that the house where Father and his family lived was not clean or large enough. But based on her home visit, the FOC perceived Father's family home as clean and sufficiently spacious, with Child having a room of her own. (The FOC also testified at a hearing that the four sons of Father and his girlfriend shared a large bedroom with four bunk beds.) The FOC expressed no concerns about either parent's residence.
The FOC noted the parties' other concerns about Child living primarily with the other - including Mother's expressing concerns about Father's ability to provide financially and pay for private school given prior child support arrearages and failure to pay day care expenses. (Father has stated he would pay for Child to attend the private Catholic school near his residence.) The FOC also noted Child was usually a good student, but Child's grades went down for a few months. And the FOC noted that Child had expressed some complaints about Mother and consistently and adamantly expressed a preference to go live with Father and to attend St. Augustine (the Catholic school near Father's home) along with Father's other school-age children.
Ultimately, the FOC concluded Mother and Father were both fit parents who should continue to have joint custody and who should equally share parenting time with Child. However, she noted that the approximately 40-mile distance between the parties' homes made equal parenting time practically impossible during the school year.
The FOC recommended that Father should spend more parenting time with Child than previously scheduled. But the FOC declined to recommend whether Father should become the primary residential parent or whether Child should attend St. Augustine in Covington along with Father's sons. Instead, she called for the family court to conduct an evidentiary hearing and decide these issues in consideration of statutorily required factors.
The FOC found no circumstances which would "automatically trigger the need for" Child to primarily reside with Father instead of Mother. However, the FOC noted there would always be adults at Father's house after school, after previously noting that Child had arrived home after school an hour or two before Mother returned from work some days. The FOC perceived that Father's parents and/or girlfriend were home when Father was at work.
The FOC's report indicated that having adults at home after school and the nearness of St. Augustine to Father's home were factors favoring Child's primarily residing with Father. The FOC also noted Child's expressed preference for going to live at Father's house. And the FOC also expressed concerns about Mother and Child's relationship, noting Child viewed her relationship with Mother as strained and not as easy as her relationship with Father.
During her testimony, the FOC answered questions about her report and made clear that she declined to recommend whether there should be a change in the primary residential parent despite Child's expressed preference to live with Father and Child's stating some logical reasons for her preference. She acknowledged relocation could have some negative effects for Child. And the FOC stated that children were not in charge of deciding such living circumstances and that the decision should be made by the family court, considering required statutory factors.
The FOC specifically discussed the period in which Child's grades fell in her testimony, noting this occurred after Child had spent a summer at Father's house and began expressing her preference to go live with Father and during a period in which the parties' mediation was approaching. She noted that Child denied intentionally doing worse at school for purposes of getting to change schools or her primary residence. She did not perceive that either parent had done anything to bribe, coach, or otherwise influence Child's expressing her wishes about where to live or attend school. The FOC also testified that Child told her she had a loving relationship with both parents and with her half-siblings on both parents' sides, as well as having friends near both homes including a cousin who lived near Father's home.
After hearing the evidence, the family court judge asked the parties some questions. Noting that the law favored both parents getting equal parenting time, the judge inquired whether it might be possible for Child to have equal parenting time with both parties with exchanges occurring halfway between their homes - such as before school in the morning. Father expressed some concerns about practical difficulties in doing so (including work schedules and obtaining transportation) and asked where Child would be going to school. The judge asked both parties if equal parenting time with exchanges halfway between their residences before school could be accomplished if the court ordered that Child attend St. Augustine.
Mother stated it would be practically impossible for her as a single mother to transport Child to a meeting point halfway between the parties' homes on school mornings, since she also needed to make sure that her other child did not miss the bus and got to school on time. Although Father also initially alluded to some practical difficulties with morning exchanges and/or meeting halfway, he said he could make an equal timesharing arrangement work with Child attending St. Augustine.
The family court judge also orally noted that Father admitted to not having consistently exercised his designated Wednesday parenting time yet was requesting additional parenting time and/or becoming the primary residential parent. Father explained that he declined to exercise Wednesday parenting time except on special occasions or school breaks because it was difficult for Child to get ready for bed before her 9 PM bedtime during the school year and Mother expressed frustration even when he dropped Child off at 7:15.
The judge also orally noted that despite Father's assurances that he could afford to pay tuition for Child and her half-siblings to attend private school, that Father had argued financial difficulty in paying for child support and/or day care. Father's counsel suggested that no evidence had been presented on this matter, despite Mother's counsel's arguments that Father failed to pay his share of day care or other expenses.
At the conclusion of the hearing, the judge declined to rule on timesharing modification or school change matters from the bench and elected to take the matter under advisement. She promised to issue a written order soon since the 2023-2024 school year was due to begin shortly.
As promised, the family court issued a written order with findings of fact and conclusions of law shortly thereafter. The family court found that it was in Child's best interest for the parties to have joint custody and to "equally share parenting time" of Child. It found both parents to be fit parents with appropriate homes, but also made factual findings noting that Child had expressed some complaints about her relationship with Mother.
The family court held that Child's wishes to change her residence to live with Father and Child's relationships with her siblings and grandparents in Father's home favored modifying the previous timesharing arrangement. It ordered that Child attend St. Augustine. It also ordered that during the school year Mother would have parenting time from Fridays until the start of school on Mondays and on alternate Wednesdays - with a reverse parenting time arrangement to apply when school was not in session.
Mother filed motions for reconsideration and/or to alter, amend, or vacate. The family court denied these motions in written orders. Mother then filed this appeal, claiming the family court erred in its best interest analysis and in modifying timesharing and ordering Child to attend St. Augustine over Mother's objection. Further facts will be set forth as necessary in our analysis.
ANALYSIS
I. We Do Not Review Solely for Palpable Error but Under Otherwise Applicable Standards Despite Problematic Preservation Statement
The argument portion of Mother's appellant brief begins with a general assertion that all appellate issues were preserved with no specific citations to the record. See RAP 32(A)(4). Father does not contest Mother's statement that she preserved the issues presented in her brief. Despite Mother's somewhat problematic preservation statement, we generously assume that all appellate issues are properly preserved and apply otherwise applicable standards of review rather than reviewing solely for palpable error resulting in manifest injustice.Nonetheless, we discern no reversible error in the family court's judgment.
Mother claims she could not provide specific citations to the record to support her preservation statement because her copy of a recording of the May 2023 hearing only contained a recording of a few minutes of this hearing. However, this Court received a substantially longer recording of the May 2023 hearing in the record on appeal. And Mother does not indicate she took steps to obtain a more complete recording of the May 2023 hearing, nor does she provide a narrative statement of how issues were preserved in the May 2023 hearing. See RAP 25(A).
See Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021) (holding that where an appellant brief lacks a proper preservation statement identifying where in the record an issue was raised to the trial court and thus preserved for review, an appellate court may treat the issue as unpreserved and review the issue solely for palpable error resulting in manifest injustice); Rule of Civil Procedure ("CR") 61.02 (court may unpreserved issue for palpable error resulting in manifest injustice). See also Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Though the cases cited herein predate the adoption of the Rules of Appellate Procedure in 2023, they apply former CR 76.12(4)(c)(v) - which is substantially similar to RAP 32(A)(4) - and their reasoning remains sound.
A. Standard for Modifying Timesharing
Father did not seek a change from joint custody to sole custody.
Instead, he simply sought to modify timesharing so that Child would reside primarily with him and attend school near his house. A request by a parent with joint legal custody to change which parent is the primary residential parent but not asking for sole custody is a motion to modify timesharing, not custody. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008).
A family court must resolve such a motion to modify timesharing under KRS 403.320(3), which states visitation may be modified if the court finds modification to be in a child's best interest. Layman v. Bohanon, 599 S.W.3d 423, 430 (Ky. 2020). In determining whether timesharing modification is in a child's best interest, courts must consider several factors, including those listed in KRS 403.270. Childress v. Hart, 592 S.W.3d 314, 317 (Ky. App. 2019).
Not only are family courts required to consider whether timesharing modification is in a child's best interest, family courts also must not restrict or unreasonably reduce a parent's parenting time without making a finding of serious endangerment. Layman, 599 S.W.3d at 430; KRS 403.320(3). But Mother has not argued that the family court restricted or unreasonably reduced her parenting time or that the serious endangerment standard must apply here. Instead, she has simply taken issue with the family court's determination that timesharing modification was in Child's best interest. Layman also notes that KRS 403.320 explicitly governs modification of visitation but that the terms visitation and timesharing are often used interchangeably. 599 S.W.3d at 429. But see Pennington, 266 S.W.3d at 765 (though the terms visitation and timesharing are often used interchangeably, technically visitation is the correct term for sole custody situations and timesharing is the correct term for joint custody situations).
B. Standard for Resolving School Choice Disputes
Similarly, a family court must also resolve joint custodians' disputes over which school a child should attend based on a child's best interest. Young v. Holmes, 295 S.W.3d 144, 146-47 (Ky. App. 2009). More specifically, if one joint custodian wants the child to attend a public school but the other joint custodian desires and accepts financial responsibility for the child to attend a private and religiously affiliated school, the same best interest standard applies. Id. at 147.
This Court held that if the parent seeking for a child to attend a religiously affiliated private school agreed to pay tuition and other costs of attendance, there was no additional requirement to show that public schools could not meet the child's needs. Young, 295 S.W.3d at 147. This Court also stated the parent appealing the order for the child to attend a private religious school did not cite any case law supporting her First Amendment violation argument and did not prove a First Amendment violation. Id. at 146-47. Unlike Young, Mother made no First Amendment argument in her appellate brief, so we do not analyze any potential First Amendment issues.
C. Standards of Review on Appeal
"As to what constitutes the best interest of the child, any factual findings are reviewed under the clearly erroneous standard; any decisions based upon said facts are reviewed under an abuse of discretion standard." Id. at 146 (reviewing family court's resolution of joint custodians' school choice dispute). See also Turner v. Turner, 672 S.W.3d 43, 50-51 (Ky. App. 2023) (reviewing decision to modify timesharing for abuse of discretion with underlying factual findings reviewed for clear error).
Furthermore, in determining if factual findings are clearly erroneous or supported by substantial evidence, we must defer to the family court's assessment of witness credibility and its weighing of the evidence. Layman, 599 S.W.3d at 432; Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003); CR 52.01. However, we review the family court's interpretation and application of statutes and other legal authority de novo - meaning without deference. Turner, 672 S.W.3d at 50; Layman, 599 S.W.3d at 429. See also Lafayette Football Boosters, Inc. v. Commonwealth, 232 S.W.3d 550, 555 (Ky. App. 2007) (questions of application of law reviewed de novo).
In reviewing the family court's judgment under these standards, we do not determine whether we would have made the same decision as the family court - but simply whether the family court issued clearly erroneous factual findings, abused its discretion, or misapplied legal authority. See, e.g., Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (reviewing decision to change primary residential parent).
Though Coffman expressly discusses the change of primary residential parent as modification of custody, the parties at least initially had joint custody and there is no explicit indication that the family court also awarded the new primary residential parent sole custody. 260 S.W.3d at 768. So, perhaps the appellate courts were not reviewing a true modification of custody in Coffman, but simply modification of timesharing. See Pennington, 266 S.W.3d at 767 (rendered a few months after Coffman and stating: "a modification of custody means more than who has physical possession of the child. Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree. This is true whether the parent has sole or joint custody: decision-making is either vested in one parent or in both, and how often the child's physical residence changes or the amount of time spent with each parent does not change this.").
II. No Reversible Error in Family Court's Judgment
A. Family Court Did Not Improperly Base Decision Solely on Child's Wishes and/or Relationships with Family Members Living in Father's Home
Mother argues the family court improperly conducted its best interest analysis. First, she argues the family court improperly based its decision solely based on Child's wishes and Child's relationship with her half-siblings and grandparents living in Father's home without properly considering Child's relationship with her half-sibling who has always resided with her in Mother's home. We disagree.
In the order portion of its judgment, the family court held that Child's wishes to live with Father and Child's relationship with her half-siblings and grandparents living in Father's home were factors favoring granting Father's motion to modify timesharing. And the family court did not explicitly mention Child's half-sibling who lived with her at Mother's home in the order portion of its judgment. However, in its findings of fact, the family court noted Mother had custody of her other child, found that Child enjoyed time with both parents, and did not find any substantial complaints with either parent's home or parenting abilities. So, though the family court may not have explicitly discussed Child's relationship with her half-sibling on Mother's side in its written judgment, the family court was aware that Child had a half-sibling living in Mother's home. And its findings that Child enjoyed time with Mother and there were no substantial complaints with Mother or her home indicate some consideration of the relationships between those living in Mother's home (including Child's halfbrother on Mother's side).
And though the family court found that Child enjoyed time with Mother and Father and other family members and expressed no substantial concerns with either party's home or parenting abilities, we cannot say its ruling on Father's motion for timesharing modification was based solely on Child's wishes or her relationship with other family members in Father's home. Though not expressly mentioned in the order portion of the written judgment, the family court made factual findings indicating that Child's wishes and her relationship with other family members in Father's home were not the sole basis of its decision.
Despite finding Mother to be a fit parent with an appropriate home and being aware of Child's half-sibling's presence in Mother's home, the family court also found that Child reported an easier relationship with Father and a more strained relationship with Mother. And in addition to noting Child expressed a preference to live with Father to the FOC, the family court found that:
The child conveyed multiple incidents to the FOC that evidenced her contention that her mother does not listen to her; is more concerned with her paramour than with her; involves the child in adult matters, including the progression of the lawsuit; appears to be less flexible toward her when the child exercises time with her father or seeks to extend her time with him.
Certainly, reasonable people might have different interpretations of what Child told the FOC or how to weigh evidence about Child's expressed wishes and complaints against evidence of other factors - such as Child having primarily lived with Mother and her half-sibling at Mother's home in Ohio and having attended school there. But again, we must defer to the family court's assessments of witness credibility and its weighing of the evidence. See Layman, 599 S.W.3d at 432; Moore, 110 S.W.3d at 354. And based on our review of the record (including hearing testimony), the family court's factual findings are supported by substantial evidence and not clearly erroneous.
The parties have not brought to our attention any evidence of concerns with the quality of the school Child attended in Ohio or its suitability for Child's needs nor did the family court issue factual findings about any concerns with the Ohio school.
In sum, we do not accept Mother's argument that the family court solely based its decision on Child's wishes or relationships with Father's family members. Instead, the family court's judgment indicates that Child's expressions about problems in her relationship with Mother was also a factor in its decision and its factual findings about such matters were supported by substantial evidence. Nor do we discern any abuse of discretion or misapplication of the law in the family court's considering such complaints (along with Child's expressed wishes and her relationships with family members in Father's home) in determining Child's best interest. After all, a child's wishes and a child's relationships with her parents, siblings and others who affect the child's best interests are appropriate factors for consideration in determining the child's best interest. See KRS 403.270(2)(b)-(c).
B. No Reversible Error in Family Court's Decision Despite Inherent Challenges of Being a Primary Residential Parent and the Lack of Finding of Instability or Being an Unfit Parent
Mother suggests the family court placed undue emphasis on Child's wishes and failed to consider the realities of Mother having been responsible for not only being the primary residential parent but also the primary disciplinary parent in the past. She asserts Child may have enjoyed a more lenient schedule and later bedtime when staying with Father when school was not in session and suggests that it is improper to determine best interests based on which parents' house seemed to be a more fun environment to Child. But Mother does not cite to any specific evidence of leniency on Father's part.
Mother also asserts that as Child approaches her teenage years, she may experience adolescent difficulties and be expected to have conflicts with her mother. She argues that the family court should have taken such realities into account when considering why Child started expressing the desire to live primarily with Father rather than Mother. But Mother does not cite to the record to show where she raised this argument to the family court. And in any event, the family court found no substantial concerns with Mother's parenting abilities despite noting Child's complaints of conflict - suggesting an implicit recognition that some conflict is to be expected in parent/child relationships, perhaps especially in adolescence.
Mother also argues that Kentucky precedent indicates that changing a child's school district and primary residence is rarely ordered except if a parent has an unstable lifestyle. See Baize v. Peak, 524 S.W.3d 30, 32 (Ky. App. 2017) (in affirming family court's decision that father would be the primary residential parent despite Mother's assertion Child had always lived with her, finding the decision to be supported by evidence of the mother's having changed residences every few months with the child attending four different schools in four different counties and even one different state during one school year).
Mother also cites an unpublished opinion from this Court, which we elect not to discuss as unpublished Kentucky appellate decisions are not binding. RAP 41(A). For future reference, we remind Mother's counsel that one must explicitly note that such unpublished Kentucky appellate decisions are not binding authority when citing such unpublished opinions in appellate briefs. RAP 41(A)(4). We further note Mother's attorney has recently been ordered to pay a $1,000 fine for repeatedly failing to comply with appellate briefing rules in several appeals. J.P.T. v. Cabinet for Health and Family Services, 689 S.W.3d 149, 155 (Ky. App. 2024). We also note that the appellee brief contains no specific citations to the record. See RAP 32(A)(3) (requiring specific citations to the record in appellant's statement of the case); RAP 32(B)(3) (stating the same requirements for appellant's statement of the case apply to the appellee's counterstatement of the case). Father's attorney also has a prior history of failing to fully comply with appellate briefing rules such as those requiring specific citations to the record. See Rabe v. Abney, No. 2019-CA-1250-ME, 2021 WL 1703608, at *1 (Ky. App. Apr. 30, 2021) (unpublished); Valencia v. Sherrill, No. 2018-CA-001636-ME, 2019 WL 4387381, at *3 (Ky. App. Sep. 13, 2019) (unpublished); Waller v. Waller, No. 2007-CA-002283-MR, 2009 WL 2192332, at *1 (Ky. App. Jul. 24, 2009) (unpublished). Though we elect not to impose sanctions for this appeal, we direct both parties' counsel to the basic appellate practice handbook and briefing checklists at our court website, https://www.kycourts.gov/Courts/Court-of-Appeals/Pages/default.aspx (last visited Jul. 25, 2024).
As Mother points out, neither the family court nor anyone else in this case has suggested that Mother was an unfit parent or had an unstable lifestyle. But despite Mother being a fit parent with a stable lifestyle, Mother has cited no authority which indicates being a fit parent with a stable lifestyle precludes a family court from determining it was in a child's best interest to modify timesharing to spend more time with the other parent. And even if a family court should not determine best interests or make its timesharing modification decision based solely on a child's expressed wishes, it is appropriate for a family court to consider a child's wishes (as well as the wishes of the parents) along with other factors. See generally Childress, 592 S.W.3d at 317 (best interests to be determined based on factors including those stated in KRS 403.270).
KRS 403.270(2) lists several factors for consideration in determining a child's best interest including the adults' motivations, a child's relationships with parents and siblings and others affecting best interests, a child's adjustment and connections to community, and the mental and physical health of all individuals involved in determining best interests.
Factors relating to domestic violence and de facto custodians are also appropriately considered in determining a child's best interests pursuant to KRS 403.270(2). But the family court found there were no allegations about domestic violence or de facto custodians and neither party has challenged its findings in these regards.
The family court found there were no mental or physical health concerns about Child or her parent and no concerns with either parent's parenting abilities or home. It also found Child was well-adjusted and enjoyed her time with both parents and their families.
While fortunately Child would have a stable and loving home regardless of whether she lived primarily with Mother or Father, we are aware of no binding authority precluding modification of timesharing to permit more time with the other parent simply because a parent is fit and has a stable home. Instead, the family court was required to, and did, consider applicable factors listed in KRS 403.270(2) in determining Child's best interest - including the wishes of both Child and her parents and evidence about Child's relationships with her parents and other family members.
The family court also specifically stated it could not find that Father was motivated by financial considerations despite prior litigation over child support or childcare expenses. And the family court made no findings that either parent was motivated by anything other than love or a desire to spend time with Child.
Perhaps, as Mother suggests, some courts are typically reluctant to order that a child move or change schools especially when a child has been living in and attending school at the same place for quite a while. But we are aware of no binding authority that prohibits modifying timesharing or resolving a dispute between joint custodians in favor of a child changing schools when doing so is in a child's best interest despite a lack of parental unfitness or instability.
In fact, our Supreme Court reversed the Court of Appeals and reinstated a family court decision which determined that changing the primary residential parent to the father was in the children's best interest - despite the parents living in different counties about an hour apart and despite the dissent's noting evidence that the children had been doing well in school in the community where they lived with their mother and that the mother was a good parent. See Coffman, 260 S.W.3d at 771 (Cunningham, J., dissenting).
Though perhaps some may share Mother's qualms about the family court's decision, the question is not whether we would make the same decision. We may not substitute our judgment for that of the family court, so we must affirm where the family court's factual findings are not clearly erroneous and it did not misapply the law or abuse its discretion. See id. at 770 (majority opinion by then-C.J. Lambert). Here, the family court applied the relevant law regarding best interests and its findings and conclusions are based on substantial evidence.
Discerning no reason to reverse based on best interest considerations, we next address Mother's arguments about the August 2015 Agreed Order.
C. Timesharing Modification and School Change Was Not Precluded by 2015 Agreed Order
Mother's appellant brief states she has never moved out of Brown County, Ohio. So, she suggests that the family court's ruling that Child attend St. Augustine in Covington, Kentucky contravened the parties' 2015 Agreed Order. However, as the family court judge orally noted, Mother testified more than once that she and Child had moved out of Brown County, Ohio to Clermont County, Ohio a couple of years before the family court heard the evidence. And in response to the family court's questioning at the end of the hearing, Mother clarified that Child had been attending public school in Clermont County, Ohio for about two and a half years before the hearing.
The fact that Mother's brief states that Mother and Child had never moved out of Brown County, Ohio despite Mother's testifying to having moved to Clermont County, Ohio is concerning. We remind Mother's counsel of his CR 11 duty to review court documents which he has signed to make sure that they are "well grounded in fact ...." See also Rules of the Supreme Court ("SCR") 3.130 (3.3) (1) (providing that a lawyer "shall not knowingly . . . make a false statement of fact or law to a tribunal"). Though we presume the error was not intentional and we do not elect to impose sanctions, we expect attorneys to take care not to misstate facts in documents filed with courts.
Because Mother and Child no longer resided in Brown County, Ohio during these timesharing modification proceedings and Father had never moved there, the August 2015 Agreed Order did not require that Child live in or attend school in Brown County, Ohio. After all, the 2015 Agreed Order stated in pertinent part: "If Petitioner [Father] moves to Brown County Ohio, before Respondent [Mother] moves out of said county, the child's residence shall remain in Brown County, Ohio until she turns 18 and graduates high school." Mother had moved to another county in Ohio (Clermont) without Father ever having moved to Brown County, Ohio making the quoted provision inapplicable.
The 2015 Agreed Order also stated that if Mother moved out of Brown County, Ohio before Father moved there, that Mother "may move anywhere within the state of Ohio with the parties' child." (R., p. 40). Mother stated at trial she believed she was required to continue to reside in Ohio with Child under this agreed order. But while there was nothing improper in Mother moving to another county in Ohio, the provision requiring Child to stay in Brown County, Ohio until graduating from high school did not apply because Mother and Child moved out of Brown County Ohio and Father did not move there.
So regardless of authority encouraging parties to resolve timesharing matters through agreement or any stray oral remarks by the family court judge indicating the parties' agreement was overreaching or void, the 2015 Agreed Order did not prohibit any change in where Child lived or went to school under the facts here. In short, there was no violation of the August 2015 Agreed Order.
See Brannock v. Brannock, 598 S.W.3d 91, 98 (Ky. App. 2019) ("[A]ny agreement between parties to a divorce which avoids the adversarial judicial process is to be encouraged."). While the present case does not arise from a divorce proceeding, we certainly agree that encouraging parties to resolve parental timesharing disputes by agreement is to be encouraged.
Based on our review of the hearing, the family court judge did not state the August 2015 Agreed Order was totally overreaching or void. Instead, she pointed out that the court retained its jurisdiction to modify timesharing or custodial matters and that any attempt to remove the court's jurisdiction to rule on such matters by an agreed order simply could not succeed.
D. No Reversible Error in Modifying Timesharing Despite FOC Declining to Recommend Whether Child's School or Primary Residence Should Change and FOC Not Visiting Mother's Home and Despite Father's Admission that Mother Was Not a Bad Parent
Mother points out the FOC did not recommend Child changing her school or primary residence. But more accurately, the FOC declined to recommend whether Child's school or primary residence should change. And despite Mother asserting in her brief that the FOC testified relocation would have a negative effect on Child, the FOC simply stated that relocation could have some negative effects on Child.
The FOC deferred to the family court to resolve these issues about timesharing modification and school choice after an evidentiary hearing. But Mother cites no authority requiring that the FOC's declining to make a recommendation and deferring to the family court's judgment would prevent the family court from modifying timesharing or changing Child's school if the family court found such changes to be in Child's best interest.
Mother also points out the FOC did not visit Mother's home. But Mother cites to no authority holding such a home visit to be required and Mother does not indicate that she requested for the FOC to visit her home. Further, the FOC testified to not perceiving a need to visit Mother's home since Father had not alleged that Mother's home was inappropriate or that Mother was a bad parent. In fact, Father admitted Mother was not a bad parent in his testimony. Again, Mother cites no authority prohibiting the family court from considering timesharing modification if in Child's best interest in the absence of evidence of bad parenting or an inappropriate home.
E. Father's Admitted Lack of Consistent Exercise of Wednesday Parenting Time Under Prior Arrangement Did Not Make Family Court's Modifying Timesharing for Him to Have More Parenting Time Reversible Error
Mother also points to Father's admitting that he did not consistently exercise his Wednesday parenting time but only used it for special occasions. We further note the family court judge directly asked Father about why he should get more parenting time when he did not consistently exercise his Wednesday weeknight parenting time under the prior arrangement. But Father explained he declined to exercise his Wednesday parenting time except for occasional special occasions because it made it difficult for Child to get ready for bed on time on school nights and spurred conflict with Mother.
Although not expressly discussed in the family court's written judgment, perhaps the family court perceived Father's explanation as reflecting mature judgment or focusing on Child's best interest. But even if the explanation is not accepted or generously construed, given the totality of the evidence presented and the factual findings supported by substantial evidence which the family court made, the family court did not abuse its discretion in determining modification to be in Child's best interest despite Father's admission that he did not consistently exercise his Wednesday parenting time.
Nor can we accept Mother's argument that certain factual findings made by the family court were clearly erroneous and resulted in reversible error.
F. No Reversible Error in Family Court's Factual Findings about Father's Driving Ability or His Relationship with his Girlfriend
Next, Mother argues the family court's decision was based on clearly erroneous factual findings especially about Father's driving ability and his relationship with his girlfriend. We disagree.
Mother contends that Father is unable to legally drive because he lacks a driver's license. However, Father and his girlfriend testified he had a learner's permit so he could drive with a licensed driver in the car. Mother suggests Father frequently violates the law by driving without a license and contends the family court ignored testimony in finding Father does not drive a car.
But Father and his girlfriend testified that Father lacked a driver's license but had a learner's permit so he could only drive with another licensed driver present. And Mother misconstrues Father's girlfriend's testimony as suggesting Father violated the law, pointing to the girlfriend's testimony that she was not comfortable letting Father drive to Ohio with the children in the car. More specifically, Father's girlfriend testified that Father had a driver's permit, yet she was uncomfortable with Father driving the children long distances such as into Ohio - presumably even with her or another licensed driver in the car-due to his limited driving experience.
Based on our review of the portion of the videorecording cited by Mother, Mother failed to accurately cite to any testimony that Father drove a car in violation of the law. Mother has not directed our attention to any testimony directly asserting that Father drove a car illegally.
As for any error in the family court's finding that Father did not drive at all, this finding does not affect the validity of its decision. Regardless of whether or why Father might not drive in some or any situations, the family court found that St. Augustine was within walking distance of Father's home and that adults were always available at his home when the children arrived there after school. The family court indicated these factors favored Child's attending St. Augustine and these findings are supported by substantial evidence. Any error in the family court's finding Father did not drive at all was harmless as it did not affect the parties' substantial rights. CR 61.01.
Similarly, any error in the family court's finding that Father and his girlfriend had been together for twelve years - despite Father's girlfriend's testimony that she and Father split up for a few months several years before the hearing - does not affect substantial rights and is harmless. CR 61.01.
G. No Due Process Violation in Family Court Ordering that Child Attend St. Augustine Despite Mother's Argument This Was Prohibited Under August 2015 Agreed Order
Lastly, Mother contends in her appellant brief that her due process rights were violated by the family court's ordering that Child attend St. Augustine. She argues that parents have due process rights to make decisions about the custody and care of their children, citing, e.g., Meinders v. Middleton, 572 S.W.3d 52, 57 (Ky. App. 2019). She contends the August 2015 Agreed Order sets forth a decision agreed to by both parents concerning where Child was to go to school.
Mother argues the family court's ruling that Child would attend St. Augustine violates her due process rights because, in her view, it violates the parties' agreed decision as stated in the August 2015 Agreed Order. However, as previously discussed, this August 2015 Agreed Order did not prohibit any change in Child's primary residence or school since Mother and Child had already moved away from Brown County, Ohio and Father had never moved there. The agreed order only provided for Child to continue to live in Brown County, Ohio through high school graduation if Mother and Child had not moved away from Brown County, Ohio before Father moved there. There was no violation of the agreed order and no due process violation.
Further arguments raised in the parties' briefs have been determined to lack merit or relevancy to our resolution of this appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM.
MCNEILL, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION.