Opinion
NO. 2015-CA-001861-ME
06-16-2017
E. M. L. APPELLANT v. S. A. L. APPELLEE
BRIEF FOR APPELLANT: E. M. L., Pro Se Owensboro, Kentucky BRIEF FOR APPELLEE: Thomas Vallandingham Owensboro, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOE CASTLEN, JUDGE
ACTION NO. 14-CI-00298 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. COMBS, JUDGE: Appellant, E. M. L. (Father), pro se, appeals from an order of the Daviess Circuit Court awarding Appellee, S. A. L. (Mother), sole custody of the parties' minor child and allowing Father supervised visitation. Finding no error, we affirm.
The parties were married on June 25, 2008. One child was born of the marriage in May 2009. On March 24, 2014, Mother filed a petition for dissolution of marriage and a motion for temporary custody. By Order entered April 15, 2014, the Domestic Relations Commissioner (DRC) recommended joint custody on a temporary basis with Mother to be the residential custodian. On June 9, 2014, Mother filed notice of her intent to move with the child to Ohio County.
On October 12, 2015, following the taking of proof over several dates, the DRC filed a detailed (nineteen-page) report in which she found, inter alia, that it is in the child's best interest to award sole custody to Mother. The DRC explained that:
The evidence in this case is clear that the parties have an extremely contentious relationship. Prior to and during this litigation the parties have participated in numerous unfortunate incidents, numerous domestic violence petitions have been filed, multiple visitation issues have occurred and both parties, at times, have acted inappropriately in the presence of the child. . . . Many hours of testimony were focused on the custody of this child.
Serenity Hulsey, an investigator with the Cabinet for Families and Children, testified that she conducted two investigations relating to the parties.... Both allegations were unsubstantiated against [Mother]. Ms Hulsey substantiated neglect against [Father] after the second investigation.
. . . .
Ms. Hulsey closed her case after the parties separated as the risk of harm from domestic violence was eliminated once the parties no longer resided together. . . .
Ms. Hulsey raised concerns regarding [Father's] erratic behavior which she personally witnessed. . . .
. . . .
After investigating this matter thoroughly, Ms. Hulsey reported that [Mother] was addressing the needs of the child. Ms. Hulsey testified that [Mother] has been diagnosed with depression and anxiety and was taking prescription medications for these problems. Ms. Hulsey has no concerns regarding [Mother's] care of the child.
The DRC also summarized the testimony of the parties' mothers as well as the September 29, 2014, testimony of Shawna Gant, Family Advocate at Hager Preschool. As the DRC noted, the main issue at that time was the parties' separation. Ms. Gant testified that there was a change in the child's behavior when Father was caring for the child; that she was late for school and tired after being with Father; that he came to school to have lunch with the child daily; that she suggested Father not come for lunch daily and that the child was happier when he did not. The DRC also made findings regarding Father's visitation and the parties' conflicting testimony about Father's returning the child on time.
The DRC noted that Father had filed an EPO against Mother in September 2014. Devon Mounts, an investigator with the Cabinet for Families and Children, testified that she did not substantiate any abuse by Mother and that the hospital did not find any physical evidence of abuse.
The DRC made findings regarding the parties' respective living conditions, noting that Mother had filed notice of her intent to relocate to Ohio County to her boyfriend's residence. Mother's boyfriend has been gainfully employed by US Bank for over ten years. He testified that Mother meets the child's needs, and that he has no concerns about Mother's parenting. The DRC found that the boyfriend has a positive relationship with his children and that he was willing to help Mother with her child's needs.
The DRC found that Father has been receiving disability since 2008. He acknowledged having Post Traumatic Stress Disorder, depression, anxiety, and a mild form of bipolar disorder. Father testified that he has another child, L.M., with a different mother; he does not have parental rights to that child. The DRC also found that Father had been involved in litigation in Texas regarding twin boys. He does not visit with them pursuant to court order. According to Father, there is a question whether they are his biological children.
The DRC noted the testimony of Father's sister, J. T., who had concerns about Father's visiting with the child based on an incident which occurred in February 2015 when she was attempting to supervise Father's visitation. While he was holding the child, Father shoved J. T. across the kitchen and slammed her into a storm door. J. T. testified that the child was screaming during these events. According to J. T., the violence continued outside and Father shoved J. T. down on the driveway and kicked her. Criminal charges as a result of that incident were pending against Father at the time of the hearing. The DRC also noted the testimony of Father's girlfriend, Ms. [M], to the effect that J. T. was grabbing Father during that incident and that Father shoved her to get her off him. The DRC noted that although "Ms. [M] was present during this incident she took no steps to remove herself or the child."
In addition, the DRC noted the testimony of J. Wilson, Director of Social Services at Daviess County Schools, regarding school-related issues.
The DRC found that pursuant to a January 26, 2015, restraining order the parties were ordered not to make negative posts on social media -- but that Father's girlfriend had posted a conversation between the parties which she testified could not be seen by the public. The DRC also noted that Father was granted supervised visitation by Order of Temporary Injunction entered January 22, 2015, in which the court found that Father refuses to take the child to school and that he refuses to give the child back to Mother. The court required that all visitation be supervised until further order of court. The order reflects that Father is entitled to visitation every other weekend on Saturday and Sunday for four hours per day; that there will be no overnight visitation; and that Father is not permitted to visit with the child at school during lunchtime. In that same order, the circuit court stated that Father's "conduct towards school officials and [Mother], with respect to the child are [sic] not well-founded and appears to be a paranoia-type reaction to what [Father] improperly perceives."
The DRC explained that:
KRS[] 403.270 provides that the court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to
each parent. . . . In this case the child has been involved in numerous incidents between the parents. The evidence presented to the Commissioner reveals that [Father] and [his] mother have spoken negatively about [Mother] in the presence of the child. [Father] has displayed violent and erratic behavior. [Father] has attempted to manipulate the professionals in this matter. [Father's] testimony at times was argumentative and evasive. The child has been affected by [Father's] behavior in this matter.
[Mother] has not acted appropriately on occasion. The testimony and evidence presented shows that both parties taunt the other party. The Commissioner has no doubt that the child loves both parents. However, neither party fosters a positive relationship with the other parent. [Father's] girlfriend does not appear to assist in fostering a positive relationship as she took no action to remove the child following an altercation between the parties. In addition, [Father's] girlfriend is posting conversations to social media claiming that such posts are private. While the Court instructed the parties not to make derogatory posts to social media, having [Father's] girlfriend make the posts was an attempt to evade the Court's clear intent.
At the present time, the child appears to have stability with [Mother]. There have been no substantiated charges against [Mother]. The Cabinet worker voiced no concerns regarding [Mother's] ability to care for the child. Allegations of abuse were investigated and unsubstantiated.
Both parties have refused to positively communicate with the other party. Both parties placed the child in counseling without the other parties' knowledge or agreement. [Father] has changed the child's school without [Mother's] knowledge. There was no testimony by any counselor relating to the current mental wellbeing of the child. There was no evidence that the child has not adjusted to residing with her mother. [Father] has exercised supervised limited visitations since January 2015.
The Commissioner has considered all relevant factors, all evidence presented, the numerous witnesses who have testified and numerous pleadings filed relating to these parties. Based on the foregoing and after careful consideration of the evidence, the Commissioner finds that granting joint custody is not in the child's best interests. The parties have great animosity towards the other. [Father's] family and significant other have animosity toward [Mother]. The parties have engaged in numerous disagreements regarding visitations. The parties have committed acts of domestic violence toward the other party. The Commissioner finds that there is evidence that [Father] and his family talk negatively about [Mother] in the presence of the child. [Father] committed acts of violence against his sister in the presence of the child. The Commissioner finds that it is in the child's best interest to award [Mother] sole care, custody and control of [child]. The child shall continue to reside with [Mother].
Kentucky Revised Statutes.
The DRC found that Father shall continue to have supervised visitations with the child, every other weekend on Saturday and Sunday for four hours. The DRC explained that "[i]n accordance with KRS 403.320, a parent not granted custody is entitled to reasonable visitation with the child unless such visitations 'would endanger seriously the child's physical, mental, moral or emotional health.'" Further, that "[t]he evidence in this case is clear that [Father's] behavior as set forth in this report endangers seriously the child's physical, mental, moral, and emotional health." The DRC noted that Father contends he has a bond with the child and noted that the child loves Father -- but that those facts alone do not change the reality of Father's behavior.
On October 15, 2015, Father filed exceptions to the DRC's report, including, inter alia, that it failed to consider all relevant factors in KRS 403.270; that the findings regarding custody were not supported by substantial evidence; and that there was no competent evidence that visitation by Father would seriously endanger the child's physical, mental, or emotional health. Mother also filed exceptions and responded to Father's exceptions.
Following a hearing on November 15, 2015, the Circuit Court overruled all exceptions by Order entered November 20, 2015, and adopted the DRC's recommended findings and orders as orders of the court. The court stated, "There was a considerable body of evidence on which to base the Commissioner's Recommendation for supervised visitation and the visitation will continue as such until [Father] presents evidence to the contrary."
On December 4, 2015, Father filed Notice of Appeal to this Court. On December 15, 2015, the Circuit Court entered a Decree of Dissolution confirming and incorporating by reference the DRC's October 12, 2015, Report and the Circuit Court's November 20, 2015, Order. On January 13, 2015, Father filed an Amended Notice of Appeal to include the December 15, 2015, Decree of Dissolution among the orders from which he appealed.
Father's argument on appeal consists of two single-spaced pages inserted after a disjointed statement of facts and is inserted as a post-script following his Conclusion in his brief. Essentially, he contends that the trial court failed to make sufficient findings of fact, that the findings are not supported by substantial evidence, and that the award of sole custody to Mother is not in the child's best interests. We disagree.
CR 52.01 provides our standard of review as follows:
Kentucky Rules of Civil Procedure. --------
Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court.As this Court explained in B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005) (footnotes omitted):
Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court's decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.
In the case before us, the DRC properly considered the relevant statutory factors and made detailed findings supported by the evidence in concluding that it is in the child's best interest to award Mother sole custody. Indeed, nine pages of the DRC's Report are devoted to the issue of child custody alone. We find no error.
To the extent that Father intended to appeal the trial court's decision regarding visitation (and that is not entirely clear from his Brief), we also affirm. "An appellate court will only reverse a trial court's decision regarding visitation if this determination constitutes a manifest abuse of discretion or was clearly erroneous in light of the facts and circumstances of the case." Ryan v. Ryan, 473 S.W.3d 637, 639 (Ky. App. 2015). Again, we find no error.
The November 20, 2015, Order of the Daviess Circuit Court adopting the recommended findings and orders of the DRC and the December 15, 2015, Decree of Dissolution are hereby affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: E. M. L., Pro Se
Owensboro, Kentucky BRIEF FOR APPELLEE: Thomas Vallandingham
Owensboro, Kentucky