Opinion
NO. 2014-CA-001142-ME
06-12-2015
CATHERINE L. NILL APPELLANT v. JEREMY S. SHORTRIDGE APPELLEE
BRIEFS FOR APPELLANT: Catherine L. Nill, pro se Winchester, Kentucky BRIEF FOR APPELLEE: Nanci M. House Winchester, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLARK FAMILY COURT
HONORABLE JEFFREY M. WALSON, JUDGE
ACTION NO. 09-CI-00084
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE: This is an appeal from a June 13, 2013 judgment of the Clark Family Court granting unmarried parents joint custody of their minor child. The family court designated the father as the primary residential parent and provided for the mother to have unsupervised timesharing pursuant to the Kentucky Supreme Court Model Timesharing Guidelines. After reviewing the record, we affirm.
Catherine Nill ("Catherine") and Jeremy Shortridge ("Jeremy") have one child in common, B.A.S. On February 2, 2009, Jeremy filed a Petition for Custody and a Motion for visitation of B.A.S. On October 1, 2009, the parties agreed that Catherine would have custody of B.A.S. with Jeremy having specific visitation set forth in the order. After the entry of this agreed order, the former couple appeared in court on several occasions, often related to matters surrounding B.A.S.
On November 1, 2012, an emergency protective order ("EPO") was entered on behalf of Jeremy and B.A.S. against Catherine. Jeremy had alleged Catherine had on one particular occasion: blocked him from leaving her residence, knocked his phone out of his hand and struck him while he was holding B.A.S. The court then entered a domestic violence order ("DVO") and granted Jeremy temporary sole custody of B.A.S. This order, entered after a hearing on November 15, 2012, still permitted Catherine to have supervised visitation with B.A.S. one hour a week.
On January 4, 2013, after the parties reached a temporary agreement for Catherine to have more timesharing, Jeremy filed an ex parte motion to modify custody and timesharing. The court heard this motion on January 16, 2013. The court determined Jeremy should continue to have temporary sole custody but modified Catherine's visitation in accordance with the Kentucky Supreme Court Model Timesharing Guidelines. The court also informed the parties that they would have a final conclusion to the custody matter by the end of 2013.
On February 22, 2013, Catherine filed a Motion to Reconsider the Temporary Order, which the court entered on February 11, 2013. As grounds for the motion, she stated that Jeremy had been arrested and had new criminal charges pending which could result in a revocation of his previous felony probation/deferred prosecution. The custody case was continued until Jeremy finalized the new criminal charges. Jeremy later pled guilty via an Alford plea on December 2, 2013, to receiving stolen property under $500.00.
While the custody case was pending, the Cabinet for Health and Family Services, Department of Community Based Services ("DCBS"), filed a petition against Catherine alleging abuse of B.A.S. Catherine cooperated with DCBS, worked her case plan and completed all requirements. The abuse petition was dismissed due to Catherine's full cooperation with DCBS.
A final hearing in their custody case was held on March 19, 2014. During the hearing both parties presented testimony. Natasha Tucker, a social worker with DCBS; Carl Moses, B.A.S.'s counselor; Ms. Danielle Keeton, B.A.S.'s teacher; Debbie Wadello, a physical therapist; Sonya Epps, Family Preservation Supervisor; and Theresa Shortridge, Jeremy's mother, all testified as well. Mr. Moses testified that B.A.S. was doing well and that change would not be good for him at this time. Ms. Keeton said B.A.S. was doing well in school and she had no concerns at this time. Ms. Keeton stated that her only contact with Catherine was through e-mail. Ms. Wadello testified she had observed Catherine interacting with B.A.S. and stated she had no concerns about Catherine's parenting. Ms. Epps and Ms. Tucker testified to the parties' cooperation and completion of services with DCBS. Jeremy testified that Catherine had missed some visitation with B.A.S and that in some cases there was no effort to make up those absences. Catherine also testified that she did not have an anger management problem and that she provided no financial support for B.A.S. Catherine was never ordered to provide financial support for B.A.S. Catherine testified as to the different places she had resided over the past few years. Jeremy and his mother both testified that he and B.A.S. have lived at her residence along with Jeremy's father and sister.
After this hearing, the family court concluded that it was best for B.A.S to continue to reside primarily with Jeremy. The family court did not disturb its previous decision to grant the parties joint custody and continued to permit Catherine to visit B.A.S pursuant to the Model Timesharing Guidelines. The family court entered its judgment to this effect on June 13, 2013.
According to the family court, the testimony and evidence presented at the hearing served as the bases of its decision. The family court found that B.A.S was doing well in his current environment. The family court also specifically determined that Catherine's testimony was unreliable because a video of an incident that occurred at a gas station showed she had been untruthful in her previous attempt to obtain a DVO against Jeremy. The family court also noted that Catherine admitted she had missed scheduled visitations with B.A.S.
On appeal, Catherine argues the court's findings were erroneous based on the evidence submitted at the hearing and that Jeremy allegedly provided false testimony vis-à-vis the number of residences he has had. Catherine also asserts the family court improperly found she had an anger management issue and contests the family court's determination that she failed to appear for scheduled visits.
Under Kentucky law, trial court must exercise sound discretion when faced with a motion to change custody or modify visitation. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). On appellate review, "the test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). When the trial court makes a factual finding, it will not be disturbed unless it was clearly erroneous, that is, not supported by substantial evidence. Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003). Additionally, an appellate court will not consider any evidence the trial court did not have the opportunity to examine. Kindred Nursing Centers Ltd. Partnership v. Leffew, 398 S.W.3d 463, 470 (Ky. App. 2013).
Here, Catherine admitted she had missed scheduled visitations with B.A.S. while testifying at the March 19, 2014 hearing. As such, her admission was conclusive and the family court made a proper finding.
Furthermore, the family court stressed that Catherine did not admit to having an anger management issue during the March 19, 2014 hearing. Instead, the family court referenced the incident at the gas station and a previous attempt to obtain a DVO against Jeremy and found Catherine's testimony untrustworthy. Because this past behavior is sufficient evidence to convince a reasonable person that Catherine's testimony was unreliable, the family court made another proper finding.
As for Catherine's argument that Jeremy falsely testified about the number of residences he has had, the record is devoid of any instance where Catherine raised this issue at the trial level. Catherine also did not raise this issue within ten days of the final judgment in any post-judgment motion. As such, this Court will not consider her argument.
Regarding its ultimate decision for Jeremy to remain the primary residential custodian, the family court did not abuse its discretion. The court properly considered Catherine's testimony, the testimony of several individuals familiar with the parties, and B.A.S.'s current environment before ruling that it was in B.A.S.'s best interest for previous custody and visitation arrangements to continue. Accordingly, the family court arrived at a reasonable decision based on adequate grounds. The June 13, 2014 judgment of the Clark County Family Court is therefore AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Catherine L. Nill, pro se
Winchester, Kentucky
BRIEF FOR APPELLEE: Nanci M. House
Winchester, Kentucky