Opinion
NO. 2013-CA-000946-ME
03-28-2014
JOSHUA LOUDON APPELLANT v. KAREN SUE LOUDON (NOW LOSEY) APPELLEE
BRIEF FOR APPELLANT: Margaret A. Travis Glasgow, Kentucky BRIEF FOR APPELLEE: W. Ralph Beck Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE W. MITCHELL NANCE, JUDGE
ACTION NO. 10-CI-00655
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. CAPERTON, JUDGE: The Appellant, Joshua Allen Loudon, appeals the May 6 and May 16, 2013 orders of the Barren Circuit Court, declining to name Loudon as primary residential custodian, and allowing Appellee, Karen Sue Loudon Losey to remain as primary residential custodian, and holding Losey in contempt of court. On appeal, Loudon argues that the court erred in denying his motion to be designated as primary residential custodian and asserts that the court's findings were not supported by substantial evidence. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Loudon and Losey had two children born of their marriage, R.E.L. and V.R.L, the first born in 2005 and the second in 2007. The parties filed for dissolution of marriage in 2010. An interlocutory decree of dissolution was entered in April 2010, and a supplemental decree of dissolution, specifically pertaining to custody issues, was entered on September 20, 2011, following a lengthy hearing on those issues on August 12, 2011. At that time, joint custody was awarded and Losey was named as primary residential custodian. Losey initially resided in Barren County but subsequently moved with the children to Millington, Michigan.
Over the course of the next several years, Loudon complained of several matters regarding communication and joint parenting matters. In May of 2012, a verified motion for contempt was filed by Loudon asserting that Losey failed in various ways to comply with the directives of the court regarding custody and arguing that the health, education, and general welfare of the children was in a poor state. Following that motion, the court ultimately entered a June 2012 order finding Losey in contempt of prior orders concerning custody, timesharing, and telephonic contact.
These issues included the children being "too busy" to take Loudon's calls, Losey changing her phone number without telling Loudon, and failing to notify Loudon of health issues regarding the children.
Subsequently, on March 13, 2013, Loudon filed an ex parte emergency motion with the court asserting that on March 10, 2013, he had called Losey's home and, while speaking with one of his daughters, was informed that "Mama is gone." Loudon asserted that he investigated the matter and determined that Losey was gone from the residence, but stated that she would not answer his telephone inquiries or talk to him about the situation. Loudon's motion resulted in an ex parte interim custody order relocating the children to Loudon's home in Barren County until a hearing was conducted. The basis for that order was the court's determination, after further information was gathered, that Losey had moved to Georgia to pursue a new job while the children remained in the custody of their stepfather in Michigan. The children remained in Loudon's care through the time that the hearing below was conducted and the court entered the orders referenced herein.
In this same timeframe, Loudon also filed a March 15, 2013 verified motion to designate himself as primary residential parent as well as another motion for contempt. In that motion, Loudon argued that the mother had left the children in the care of their stepfather without informing him and, further, that he was concerned about the girls not receiving a good education while residing with the mother and that the girls continued to deal with illnesses which Losey failed to keep him informed.
Losey has responded to Loudon's accusations by asserting that she discussed the move to Georgia with Loudon, and that he had agreed that the move would be a good idea, both for her career and ability to provide for the children, and in light of the fact that the job location in Georgia would be closer to Loudon's own residence in Kentucky than their residence in Michigan. Thus, Losey asserts that she pursued the job with Loudon's knowledge and consent, and would not have done so otherwise. Loudon acknowledges that the two discussed the move but asserts that he never agreed to allow Losey to leave the children with her husband while pursuing the job opportunity.
The court conducted an April 16, 2013 hearing, during which it heard testimony from Loudon, Losey, and teachers who taught the parties' children in Michigan. Following the hearing, the court ultimately entered a May 6, 2013 order denying Loudon's motion to modify the designated primary residential parent as well as a May 16, 2013 findings of fact, conclusions of law, and order, finding Losey in contempt. Specifically, the court found that by leaving her children with her husband, David Losey, while Karen moved to Georgia to pursue a better job she was in violation of the supplemental decree entered by the court on September 20, 2011. The court found that Losey failed to give Loudon written notice that she sought to relocate the children in violation of FCR 7, and that she was guilty of indirect criminal contempt.
These teachers were Samantha Aguirre, who taught R.E.L. in second grade at Kirk Elementary School in Michigan, and Andrea Gasson, who was the teacher for V.R.L. in kindergarten, also at Kirk Elementary. Aguirre testified that R.E.L. was willing and ready to learn. She stated that though she spoke to the parents about a couple of struggles that R.E.L. had educationally, she was very active and focused on learning for the most part. Aguirre described R.E.L. as an average student, who had some difficulty with addition and subtraction. She testified that R.E.L. did fail to turn in some of her assignments, but that the percentage of assignments turned in improved toward the end of the year. She stated that R.E.L. was appropriately dressed, well-groomed, and did not appear neglected. She testified that R.E.L did have respiratory problems, but did not appear to be a sickly child. Gasson testified that V.R.L. was well-dressed and friendly. She stated that though she was a mediocre student at the beginning of the school year, she had improved remarkably by the second marking period. While noting that V.R.L. appeared to have respiratory problems, she noted that younger children often share germs as a lot of kids do. She stated that nothing appeared abnormal about the appearance of V.R.L., and that she appeared to be well-nourished.
Noting that it had previously found Losey guilty of indirect criminal contempt in another order entered on June 11, 2012, the court ordered thirty days of jail time, consecutive to the ten days already assessed against Losey in the June 11, 2012 order. However, the court ordered that the forty days of jail time be suspended for two years on the condition that Losey purge herself of contempt by strictly complying with all orders of the court issued in the supplemental decree of September 20, 2011. It is from these orders that Loudon now appeals to this Court.
In reviewing the arguments of the parties, we note that Kentucky Rules of Civil Procedure (CR) 52.01 provides that findings of fact made by the trial court shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to determine the credibility of the witnesses before it. See CR 52.01. A factual finding is not clearly erroneous if supported by substantial evidence. See Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is that which has sufficient probative value to induce conviction in the mind of a reasonable person when taken alone or in light of all the evidence. Golightly, at 414.
We also note that the trial court has very broad discretion when determining matters pertaining to custody of children. Krug v. Krug, 647 S.W.2d 790 (Ky. 1983). A trial court's custody award, that is, the application of the law to the court's findings of fact, will not be disturbed unless it constitutes an abuse of discretion. See Allen v. Devine, 178 S.W.3d 517, 524 (Ky. App. 2005). A court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004). Whether the trial court properly applied the law to the facts is a question that we review de novo. Allen at 524. We review this matter with these standards in mind.
As his first and only basis for appeal Loudon argues that the trial court's factual findings were clearly erroneous and, that accordingly, its decision was an abuse of discretion. Specifically, Loudon disputes the court's finding that "the mother has made adequate housing, employment, and educational plans and daycare plans for the children while in Georgia." Loudon argues that there was not adequate testimony given during the course of the hearing to support such a finding. Loudon acknowledges that Losey submitted an affidavit which included photographs of where she expected to live, but he argues that she submitted no evidence of a lease or rental agreement. Loudon also argues that the evidence which Losey presented concerning education was inadequate, insofar as she provided no actual information about the schools the children would be attending in Georgia other than to testify that she had made inquiries with the school boards. Loudon asserts that Losey was still uncertain, as of the time of the hearing, as to which school the children would attend. Accordingly, he argues that there was simply insufficient evidence presented to support the court's finding that Losey should be allowed to continue as primary residential custodian.
In response, Losey argues that the findings of the trial court were not clearly erroneous and were supported by substantial evidence. She argues that the trial court properly applied that "best interest of the child" standard in denying Loudon's motion to modify custody, and that the court properly found that the best interests of the children were served by continuing Losey's status as primary residential custodian.
Upon reviewing the record below, and the arguments of the parties, we are compelled to affirm. Below, there is no dispute as to whether the parties should have joint custody, and no party has made an argument to assert that the custody arrangement should be other than joint custody. In reviewing Loudon's disputes with the court's finding and its decision to deny his motion, the arguments made to this court center around the mother's relocation to Georgia. Moreover, there is no dispute that Loudon himself styled his motion as one to designate himself as primary residential custodian.
In reviewing this matter, we refer to Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), we note that it stands for the proposition that when a custody decree is being entered for the first time, as was the case sub judice, the court is to base its decision upon the factors set forth in KRS 403.270. Certainly, a court would normally be required to conduct an analysis pursuant to this provision in the course of determining which sort of custody was appropriate. Sub judice, however, the parties were in agreement that joint custody was the best arrangement for themselves and for their children. Thus, the matter of dispute centered not on which form of custody was appropriate, but rather on which parent would be the primary residential custodian and at which times each parent would have the children.
KRS 403.270 provides as follows: (1) (a) As used in this chapter and KRS 405.020, unless the context requires otherwise, "de facto custodian" means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period. (b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020. (2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including: (a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody; (b) The wishes of the child as to his custodian; (c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests; (d) The child's adjustment to his home, school, and community; (e) The mental and physical health of all individuals involved; (f) Information, records, and evidence of domestic violence as defined in KRS 403.720; (g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian; (h) The intent of the parent or parents in placing the child with a de facto custodian; and (i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school. (3) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents. (4) The abandonment of the family residence by a custodial party shall not be considered where said party was physically harmed or was seriously threatened with physical harm by his or her spouse, when such harm or threat of harm was causally related to the abandonment. (5) The court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interest of the child. (6) If the court grants custody to a de facto custodian, the de facto custodian shall have legal custody under the laws of the Commonwealth.
Pennington clearly indicates that this is a timesharing determination, not a determination affecting the nature of custody itself. Sub judice, the parties themselves determined the nature of the custody—choosing joint custody over sole custody with visitation. Accordingly, it was for the court to review the evidence and make a determination as to which parent was in a better position to be the primary residential custodian and which timesharing arrangement would best suit the parties. As our Supreme Court stated in Pennington:
If the only interest of the opposing party is to object to relocating the child, but not to alter joint decision-making, then he is seeking to have the existing visitation/timesharing arrangement changed, and need only establish that it is in the child's best interests not to relocate, which would thereby change the existing visitation/timesharing situation.Pennington at 769.
Pennington is clear that "If it is only timesharing/visitation for which modification is sought, then KRS 403.320[] either applies directly or may be construed to do so." The court below applied this best interest standard, and in doing so determined that it was in the best interest of the children to continue to reside with the mother since they had always done so. Our review of the record indicates that this was a finding supported by substantial evidence. Accordingly, we decline to disturb it upon appeal.
KRS 403.320 provides that: (1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child. (2) If domestic violence and abuse, as defined in KRS 403.720, 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. (3) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health. (4) (a) Except as provided in paragraph (b) of this subsection, any court-ordered modification of a child visitation decree, based in whole or in part on: 1. The active duty of a parent or a de facto custodian as a regular member of the United States Armed Forces deployed outside the United States; or 2. Any federal active duty of a parent or a de facto custodian as a member of a state National Guard or a Reserve component; shall be temporary and shall revert back to the previous child visitation decree at the end of the deployment outside the United States or the federal active duty, as appropriate. (b) A parent or de facto custodian identified in paragraph (a) of this subsection may consent to a modification of a child visitation decree that continues past the end of the deployment outside the United States or the federal active duty, as appropriate. (5) Under circumstances where the court finds, by clear and convincing evidence, it is in the best interest of the child, any relative, by blood or affinity, that was previously granted temporary custody pursuant to the provisions of KRS 620.090 may be granted reasonable noncustodial parental visitation rights by a Circuit Court or Family Court as an intervenor or by original action. Once the relative has been granted visitation pursuant to this subsection, those rights shall not be adversely affected by the termination of custodial or parental rights of an individual who has permanent custody of the child unless the court determines that termination of the visitation rights are in the best interests of the child. The action shall be brought in the county in which the temporary or permanent custody order was entered or where the child resides.
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In light of the foregoing, this Court is of the opinion that the court below properly applied the best interest standard of the children in denying Loudon's motion to be designated as primary residential parent. The record is clear that the court considered evidence from numerous sources in making its determination, and the court clearly enumerated the factors that it considered and relied upon in its order.
Wherefore, for the foregoing reasons, we hereby affirm the May 6 and May 16, 2013 orders of the Barren Circuit Court, the Honorable W. Mitchell Nance, presiding.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret A. Travis
Glasgow, Kentucky
BRIEF FOR APPELLEE: W. Ralph Beck
Bowling Green, Kentucky