Opinion
NO. 2014-CA-000223-ME
01-16-2015
ERIC ANDREW PEREZ APPELLANT v. CRISTINA DELEON ACOSTA APPELLEE
BRIEF FOR APPELLANT: Eric Andrew Perez, pro se Wesley Chapel, Florida NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JASON S. FLEMING, JUDGE
ACTION NO. 13-CI-01077
OPINION
AFFIRMING
BEFORE: DIXON, MAZE AND TAYLOR, JUDGES. DIXON, JUDGE: Eric Andrew Perez appeals from an order of the Christian Circuit Court denying his petition to modify visitation. Finding no error, we affirm.
Eric and Cristina Deleon Acosta were married in January 2006, and they divorced in 2012. Prior to their divorce, they resided in Watertown, New York. In May 2011, Cristina was granted an order of protection, which prohibited Eric from having contact with her or their daughter. Eric subsequently violated the protective order, resulting in criminal charges. Eric pled guilty to first-degree criminal contempt and received a sentence of eighteen months to three years in prison. On April 13, 2012, the family court of Jefferson County, New York, entered an order that granted sole custody of the parties' daughter to Cristina and ordered Eric not to have any visitation or contact with the child. Cristiana eventually relocated with the child to Christian County, Kentucky.
In September 2013, Eric filed a petition to modify visitation in Christian Circuit Court, which accepted jurisdiction of the matter from the family court in New York. The circuit court held an evidentiary hearing on the petition, and Eric testified by telephone. Eric asserted that Cristina had kept the child from him and that he was entitled to visitation as the biological father. Cristina testified regarding the reasons she believed contact with Eric was not in the child's best interest. After hearing the testimony and considering numerous documents filed by the parties, the court denied Eric's petition to modify visitation.
Eric, pro se, now appeals the order of the Christian Circuit Court. Although Eric's appellate brief is hard to follow, his primary arguments challenge the sufficiency of the evidence relied on by the court to support its finding that visitation was not in the child's best interest. After carefully reviewing the allegations raised by Eric, we conclude they are without merit.
Pursuant to KRS 403.320(3), "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child." On review, we will not disturb the trial court's factual findings unless they were clearly erroneous, and we are mindful of the lower court's opportunity to assess witness credibility. Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010).
In this case, the Christian Circuit Court accepted jurisdiction of the New York judgment that granted sole custody to Cristina and denied Eric any visitation with his daughter. "When visitation has already been denied, the standard for modification is not serious endangerment; rather, the best interest[] of the child[] governs." McNeeley v. McNeeley, 45 S.W.3d 876, 878 (Ky. App. 2001). In concluding visitation was not in the child's best interest, the court stated, in relevant part:
[T]he Court finds that it has been 2 ½ years since the father has had any contact with the child. The Court finds that since that time the child seems to have been thriving. The Court finds that the child's actions of waking up at night with nightmares, refusing to sleep alone, and appearing in fear is consistent with the mother's testimony that the child is fearful of the father. [The] Court finds that the child has been forced to be home schooled due to these reactions. The child is in counseling, and the Court does not wish to interfere with that counseling.
Moreover, the Court is concerned with the mental health of the father based on his testimony that he has a previous diagnosis of PTSD and borderline personality disorder and is not taking any medication. The Court has not seen any psychological records to show that the
father has mental health stability at this time. The Court also found the mother to be credible that the father may have bipolar disorder and/or schizophrenia.
The documents which have been submitted support the fact that the father has no insight into the issues and blames everyone for his actions other than himself. For example, his Affidavit in Support of Motion for Visitation is full of allegations of why everyone, including the New York courts, the Jefferson County Sheriff's Department, the mother, and his attorney in New York are at fault for him not being able to see his daughter. There is not one statement in the document in which he takes any responsibility for his own actions which he pled guilty to. The Court believes that the anger in the tone of his voice at times during the hearing, and especially the anger in many of the pleadings which he filed, shows that he is emotionally unstable and he is potentially a danger to the child an especially the mother.
Although Eric challenges the sufficiency of the evidence, it is apparent from our review that substantial evidence supported the court's conclusion that modifying visitation was not in the child's best interest. The court found Cristina to be a more credible witness than Eric. The court heard testimony and reviewed documents regarding Eric's prior mental health issues and history of domestic violence. We are satisfied the court considered all of the evidence and applied the relevant statutory factors to conclude that it was not in the child's best interest to modify visitation. We find no error in the circuit court's decision to deny Eric's motion to modify visitation.
For the reasons stated herein, the judgment of the Christian Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Eric Andrew Perez, pro se
Wesley Chapel, Florida
NO BRIEF FOR APPELLEE