Opinion
NO. 2016-CA-001182-ME
05-26-2017
ANGELA LYNN MEADE APPELLANT v. DUANE MEADE, III APPELLEE
BRIEF FOR APPELLANT James F. Greene Madisonville, Kentucky BRIEF FOR APPELLEE Marcus R. Little Madisonville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT, DIVISION II/FAMILY COURT
HONORABLE SUSAN W. MCCLURE, JUDGE
ACTION NO. 14-CI-00736 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Angela Meade appeals from the Hopkins Family Court order amending the custodial arrangement between her and her ex-spouse, Duane Meade, III. After careful review, we affirm.
Although we did not adopt the family court's opinion in this case as our own, we easily could have. The manner in which the family court set forth the statutory elements and then stated the facts in this case that were relevant to each element is welcomed by this Court and highly encouraged.
Following the parties' separation and dissolution, they were exercising joint custody of their three minor children with Angela's serving as the primary residential custodian. After a few months utilizing this arrangement, Angela moved with the children to Elyria, Ohio. After Duane objected to this relocation, the family court held a hearing, pursuant to Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). The family court determined it was in the children's best interest to remain in Hopkins County. Therefore, the family court designated Duane as the children's primary residential custodian.
Elyria, Ohio, is approximately five hundred miles from Hopkins County, Kentucky. Testimony at the hearing established it was a seven to eight hour drive, one-way.
On appeal, Angela argues the family court "committed palpable error" designating Duane as the primary residential custodian. Specifically, she argues that the family court gave improper weight to certain evidence presented at the hearing, and its ultimate determination was not supported by substantial evidence.
"[T]his court will only reverse a [family] court's determination as to visitation [and relocation] if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000) (citing Wilhem v. Wilhem, 504 S.W.2d 699, 700 (Ky. 1974), overruled on other grounds by, Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001)). In reviewing whether the family court's findings are clearly erroneous, the question we must answer is whether those findings are supported by substantial evidence. Moore v. Asente 110 S.W.3d 336, 353-54 (Ky. 2003). "Substantial evidence is 'evidence that a reasonable mind would accept as adequate to support a conclusion' and evidence that, when 'taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of [a reasonable person].'" Id. at 354 (quoting Blankenship v. Lloyd Blankenship Coal Co., Inc., 463 S.W.2d 62, 63-64 (Ky. 1970)).
Angela asserts the family court failed to consider the reason she relocated. In her view, Duane's failure to fully pay the court ordered maintenance and child support left her no other choice but to move in with her family in Elyria. The woman's shelter she was staying in would not allow her to remain there because she had no income and a number of other shelters would not admit her because of the active DVO in place between her and Duane. She stated she applied for any minimum wage job that did not require a high school diploma or GED in the Hopkins County area, but never received an interview.
Angela further testified it was in the children's best interest for her to remain the primary residential custodian because she alleged Duane attempted suicide shortly after their separation. She also testified that she believed Duane suffered from depression and other mental health issues.
At the hearing, Duane and his mother both addressed his alleged suicide attempt and mental health. They both testified that Duane was very upset when Angela left with the children. While they both deny he was attempting to commit suicide on the occasion Angela testified about, he admitted he was consuming alcohol at the time and exclaimed how "he was nothing without his children." This behavior led his mother to call emergency services and he was arrested and charged with disorderly conduct. He was then evaluated by mental health professionals from Pennyroyal Mental Health Center, who found no evidence of mental health issues or suicidal tendencies other than situational depression regarding the parties' divorce and children. Duane stated that this incident was the last time he consumed alcohol.
Next, regarding whether it was in the children's best interest for Duane to be named primary residential custodian, Duane testified to the extensive involvement his family from Hopkins County have had in the children's lives. For most of the children's lives, the parties and their children lived in Duane's parents' home. By contrast, Angela's immediate family, prior to her relocation, had limited contact with the children and had only visited them in Hopkins County on one occasion. Furthermore, the family court heard testimony regarding the quality of the two school districts. The children's school in Hopkins County ranks 120 out of 691 Kentucky elementary schools and was ranked in the 82nd percentile in the state in standardized testing in 2015. On the other hand, the children's school in Elyria ranks 1,402 out of 1,617 Ohio elementary schools and was ranked in the 13th percentile of schools in standardized testing in 2015.
Pursuant to Pennington, in its final order the family court thoroughly discussed each of the "best interest" factors set forth in KRS 403.270. Of particular note to this appeal, the factors enumerated in "e" and "f" of KRS 403.270(2) direct the family court to consider the mental health of all individuals involved and whether there is domestic violence between the parties. The family court, in its well-reasoned final order, found that "there was no evidence from which the court could make a finding regarding [Duane's] mental health diagnosis or compliance," and "[a]lthough there was a general discussion of the occurrence of domestic violence during the parties marriage, there was no evidence of domestic violence occurring subsequent to the entry of the divorce decree and the last order of custody and timesharing."
Kentucky Revised Statute.
In determining that it was in the children's best interest for Duane to be the primary residential custodian, the family court found that: (1) the children have a close relationship with Duane's family, particularly their paternal grandmother; (2) Angela believes that she is only required to consult Duane on "some things" and not in all decisions regarding the children; (3) Angela unilaterally decided to move with the children and this deprived Duane of his daily interaction with the children; (4) the Hopkins County residence provides more overall stability for the children; (5) the children have an extensive support system and have established relationships in Hopkins County, whereas Angela has very little support and the children have had little to no contact with her family in Elyria prior to the relocation; and (6) the school district in Hopkins County was superior to that of Elyria. In light of the facts and circumstances of this case, the family court's decision was supported by substantial evidence.
Furthermore, despite Angela's contention regarding the weight assigned to certain evidence, we are without authority to substitute our judgment for that of the family court. Moore, 110 S.W.3d at 354. Rather, the family court is in the best position to assess credibility and weigh the evidence. Id.; CR 52.01. Accordingly, we affirm the judgment of the Hopkins County Family Court.
Kentucky Rule of Civil Procedure. --------
ALL CONCUR. BRIEF FOR APPELLANT James F. Greene
Madisonville, Kentucky BRIEF FOR APPELLEE Marcus R. Little
Madisonville, Kentucky