Opinion
NO. 2017-CA-001152-ME
04-13-2018
CHRISTOPHER MICHAEL NIBLETT APPELLANT v. ERIN LYNN STEWART APPELLEE
BRIEF FOR APPELLANT: John Corey Morgan Franklin, Kentucky BRIEF FOR APPELLEE: Katina B. Miner Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SIMPSON FAMILY COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 16-CI-00246 OPINION
AFFIRMING
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BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Christopher Michael Niblett has appealed from the rulings of the Simpson Family Court designating his former wife, Erin Lynn Stewart, as the primary residential custodian of their minor child and permitting Erin to relocate with the child to New Hampshire. Finding no error or abuse of discretion, we affirm.
Erin and Christopher were married in June 2009 in Tennessee. One child was born of the marriage in 2010. The parties separated on May 23, 2016, and on September 30, 2016, Erin filed a pro se petition to dissolve the marriage. At that time, she and the child lived in Franklin, Kentucky, and Christopher lived in Tennessee. Erin requested joint custody of the child with Christopher and stated that they had made arrangements regarding custody, support, and visitation, including that she would be the primary residential custodian and Christopher would pay child support. In her financial disclosure document, Erin stated that her house was in foreclosure because she did not have any means to pay the mortgage and Christopher had stopped making payments since he left. A separately filed settlement agreement addressed custody and visitation, setting forth that the parties would have joint custody of the child, designating Erin as the primary residential parent, and setting up a visitation schedule for Christopher:
Father shall have visitation: Every Sunday for 8 hours while mother is at work; holidays as agreed to by the parties.The agreement also addressed maintenance, child support, health insurance, and the tax exemption.
After mother and child move out of state father will have child every other Thanksgiving, Christmas and time ever [sic] summer as agreed to by the parties. Father will be responsible for travel costs for visitations. Father may visit with daughter at anytime [sic] with advance notice to mother.
In October 2016, Christopher filed a response and counterclaim to Erin's petition to dissolve the marriage. He also filed a motion for temporary joint custody and a pendente lite visitation schedule. The family court entered a pendente lite order on November 7, 2016, awarding joint custody, designating Erin as the primary residential parent, and awarding Christopher custodial time of no less than standard visitation, Sundays when Erin was working, and other times they agreed upon. That order was quickly vacated the same day, and after taking testimony from the parties, the court kept visitation as previously ordered, with the proviso that Christopher was to be present with and supervise the child when his girlfriend, Kimberly Taylor, was present. A separate pendente lite order was entered on November 9, 2016, setting forth the temporary arrangements. A final evidentiary hearing was scheduled for early 2017.
A hearing was held on February 10, 2017, during which the parties and Kimberly testified. The court entered interlocutory findings of fact, conclusions of law, and a decree dissolving the marriage on February 27, 2017. The issues of property and debt assignment, custody, visitation, and support were reserved for further adjudication. The court scheduled a hearing on Erin's motion to relocate for late March.
At the March 27, 2017, hearing, the court heard testimony from several witnesses, including both parties, and entered an amended order granting Erin's motion to relocate on April 17, 2017. The family court found that Christopher's biological family lived in Massachusetts, and although he did not have a relationship with them, Erin did. It also found that Erin had "valid and compelling" reasons for relocating, noting that she did not have any "longstanding ties or connections" to Kentucky, was facing foreclosure, and had been experiencing financial struggles since the breakup of the marriage. She had "strong family support and improved job opportunities in New England." The family court went on to find that relocation would be in the child's best interests, although it would impact Christopher's visitation with her. The child was young and, based upon her stage of development, the move would "not be too tumultuous and the child will adjust." Therefore, the court permitted Erin to relocate to New Hampshire with the child. It ordered the parties to negotiate a visitation schedule once Erin and the child had relocated. If that was not successful, the court would do so. The relocation was not to occur until the visitation schedule had been determined, either by agreement or by the court.
The original order had been entered a few days prior.
A final trial was scheduled for May 2017. The parties presented testimony from several witnesses, and the court directed the parties to file memoranda setting forth their respective positions. Erin sought sole custody of the child, while Christopher sought joint custody with the court designating him as the primary residential custodian.
The family court entered its findings of fact, conclusions of law, and supplemental decree on June 5, 2017. After addressing marital property and debts and non-marital interests, the court made extensive findings related to child custody and visitation:
The Court has carefully considered the applicable factors set forth in KRS 403.270(2) relating to the best interest of [the child] and the award of child custody in this matter. The applicable factors are included in subsections (a), (c), (d), and (e) of the statute.
Erin has requested that she be awarded sole custody of [the child.] Christopher desires joint custody with [himself] designated as primary residential custodian.
[The child] appears to enjoy a loving relationship with both Erin and Christopher. Kimberly Taylor's history as a registered sex offender, her mental health issues, and the restriction to supervised visitation with her own teenaged children are all serious concerns since she lives in the home with Christopher and will be having his child in November, 2017.
[The child] appears to be very well adjusted to the home of Erin as primary residential custodian, and has done well while in the Simpson County school system under her care.
Erin, Christopher and [the child] all appear to be in good health, both physically and mentally. As previously noted, the mental of health of Kimberly Taylor is a concern.
Due to the age of [the child,] her wishes have not been considered. There is no history of domestic violence and no defacto [sic] custodian is involved.
Based on the findings of fact hereinabove, the Court determines that the best interest of [the child] will be served by awarding Erin and Christopher joint custody of the child, with Erin designated as primary residential custodian. Until such time as Erin relocates to [New Hampshire], as previously authorized by the Court, Christopher shall have custodial time with [the child] according to the Guidelines under the Local Rules of this Court (copy attached hereto), as well as on Sundays when Erin is working and any other times by mutual agreement.
After Erin and [the child] have relocated to [New Hampshire,] Christopher's custodial time shall be as follows: in odd-numbered years he shall have Christmas school break; he shall have extended custodial time each summer, for two (2) weeks in 2017, from July 1 to July 14, and beginning in 2018, for a total of four (4) weeks, provided there shall be no continuous custodial time longer than two (2) weeks at a time. Any other custodial time may be as mutually agreed to by the parties.
Prior to Erin's relocation to [New Hampshire,] the parties shall exchange [the child] at the McDonald's on North Main Street in Franklin, Kentucky. After relocation, Christopher shall be responsible for the child's transportation to his home for his custodial time, and Erin shall be responsible for her transportation when the child returns to her.
At all times, Christopher shall be present within sight and sound of [the child] whenever Kimberly Taylor is present for his custodial time. Each party will keep all
firearms securely locked when exercising custodial time with [the child.]The court ordered Christopher to pay Erin child support in the amount of $838.36 per month beginning on May 15, 2017, as well as to provide health, dental, and vision insurance for the child. Once Erin relocated, she would not have any childcare costs. Therefore, the court ruled that child support would automatically be reduced to $682.97 per month on the date of relocation. As neither party requested spousal maintenance, none was awarded.
The ruling was amended to change the relocation state from Massachusetts to New Hampshire.
Christopher moved the family court to alter, amend, or vacate its June 5, 2017, order. He specifically sought reconsideration of the order permitting Erin to relocate to New Hampshire, stating that Erin had no income and had to rely on others for support. He asserted that Erin's lack of income, as well as the long distance from him, would not be in the child's best interests. In the alternative, Christopher sought additional visitation with the child, including the full summer, all fall and spring breaks, and more time during Christmas and Thanksgiving, citing a newly enacted statute that was not yet in effect related to equal parenting time. He also requested that the court provide an opportunity for the visitation restrictions regarding Kimberly to be removed in the future and for other family members to be able to supervise the child in Kimberly's presence when he was at work. Erin objected to this motion, noting that she had not obtained a job in New Hampshire because she had not yet moved there and that the court's visitation schedule was within its discretion. She also pointed out that the pending amendments to KRS 403.280 apply to temporary custody orders, not final decrees. Erin stated she would inform Christopher seven days prior to relocation. The court denied Christopher's motion, with the exception of correcting the state to which Erin planned to relocate, by order entered June 23, 2017. A separate order reflecting similar rulings was entered June 26, 2017. This expedited appeal now follows.
This motion included a request to correct an error in the state to which Erin planned to relocate. Erin did not object to this portion of the motion.
By notice filed in July 2017, Erin notified the family court that she had relocated to New Hampshire on July 15, 2017, and had notified Christopher of her intention to do so on June 26, 2017. --------
On appeal, Christopher contends that the trial court abused its discretion in permitting Erin to relocate to New Hampshire and in setting visitation.
First we shall review whether the family court committed any error or abused its discretion in designating Erin as the primary residential custodian in conjunction with a joint custody award after having permitted her to relocate to New Hampshire. KRS 403.270 provides the statutory framework a trial court must follow when it makes an initial decision related to child custody:
(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:
See Rice v. Rice, 372 S.W.3d 449, 453 (Ky. App. 2012) ("Custody decisions involving two parents are governed by the best interests of the child standard and the applicable factors set forth in KRS 403.270(2)."); Frances v. Frances, 266 S.W.3d 754, 758 (Ky. 2008) ("Although Appellant did relocate with the child, this case is not about the typical relocation questions of whether the relocation warrants a change of custody or of timesharing. Since this was the actual custody determination, the trial court had a clear directive to make its decision based on the best interests standard set forth in KRS 403.270.").(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[.]
An appellate court may set aside a lower court's findings made pursuant to Kentucky Rules of Civil Procedure (CR) 52.01 "only if those findings are clearly erroneous." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). In order to determine whether findings of fact are clearly erroneous, the reviewing court must decide whether the findings are supported by substantial evidence:
"[S]ubstantial evidence" is "[e]vidence 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 reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted). "[W]ith regard to custody matters, 'the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion.'" Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010), citing Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974); Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982).
Christopher confines his argument for reversal to Erin's lack of income or employment in New Hampshire and to the need to move the child from a place to which she was adjusted. In support, he cites to Agnich v. Tyler, 520 S.W.3d 394 (Ky. App. 2017). That case, however, involves a motion to modify timesharing pursuant to KRS 403.320(3), as custody had already been established.
The family court properly considered the factors set forth in KRS 403.270(2), including the wishes of both parents; the child's interactions and relationships with her parents and any other individuals who might significantly affect her best interests; the child's adjustment to her home, school, and community; and the mental and physical health of the involved individuals. The court expressed concerns about Kimberly's mental health and her previous status as a registered sex offender. It specifically found:
Christopher lives with Kimberly Taylor in Westmoreland, Tennessee and they are expecting their first child in November, 2017. They have lived together since June or July of 2016. Kimberly acknowledged that she was a registered sex offender until the end of 2013 and that she is permitted supervised visitation only with her own children, ages 15 and 16. Kimberly also acknowledged that by a mental health evaluation she was diagnosed as bi-polar with borderline personality disorder. Counseling was recommended and she went for only 6 months, and has had no counseling or therapy for the past 3 years.Christopher did not mention the family court's concerns regarding Kimberly in his brief.
Having reviewed the multiple hearings and the family court's findings, we hold that the decision to designate Erin as the primary residential custodian was supported by substantial evidence of record and did not constitute an abuse of discretion. The court carefully considered the circumstances surrounding the designation of a primary residential custodian in conjunction with its earlier decision to permit Erin to relocate to New Hampshire. Factors included in this consideration were the pending foreclosure on Erin's house in Kentucky, her lack of support in or ties to Kentucky, the presence of support and family in New Hampshire and Massachusetts, the availability of housing in New Hampshire, Kimberly's presence in Christopher's home, Christopher's work schedule, and the child's young age. Therefore, we affirm the family court's custody determination to designate Erin as the primary residential custodian.
Next we shall consider Christopher's argument that the family court abused its discretion in setting the visitation schedule. He had requested longer periods of visitation during summer break and all school breaks due to the distance between him and Erin, which would cause his visitations to be more infrequent. KRS 403.320(1) addresses visitation and provides:
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."[M]atters involving visitation rights are held to be peculiarly within the discretion of the trial court." Drury v. Drury, 32 S.W.3d 521, 526 (Ky. App. 2000).
Again, the court carefully considered the testimony presented at the hearings and the parties' unique circumstances in crafting a visitation schedule. The court applied the court's local guidelines for custodial time until Erin had relocated, then provided for a split in school breaks depending on the year and multiple weeks of visitation in the summer. The court did not preclude the parties from agreeing upon other custodial time for Christopher. We find no abuse of discretion in the family court's reasonable visitation schedule that was to take effect upon Erin's relocation to New Hampshire and therefore affirm that ruling.
For the foregoing reasons, the judgments of the Simpson Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John Corey Morgan
Franklin, Kentucky BRIEF FOR APPELLEE: Katina B. Miner
Bowling Green, Kentucky