Opinion
NO. 2012-CA-001753-ME
06-14-2013
MELINDA KAY RHODES (NOW SIZEMORE) APPELLANT v. GLENN ERIC RHODES APPELLEE
BRIEF FOR APPELLANT: William R. Erwin Danville, Kentucky BRIEF FOR APPELLEE: Meredith A. Booth Lebanon, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DAN KELLY, JUDGE
ACTION NO. 12-CI-00176
OPINION
AFFIRMING
BEFORE: COMBS, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Melinda Kay Sizemore has appealed from the Marion Circuit Court's denial of her motion to modify custody and timesharing in relation to the minor son she and Glenn Eric Rhodes adopted while married. After a careful review, we affirm.
Sizemore and Rhodes were divorced in 2009. Rhodes was granted sole custody of the parties' adopted minor son pursuant to the dissolution decree. Rhodes and the child relocated from Clay County, Kentucky, to Marion County, Kentucky, following the divorce. On November 15, 2010, the Clay Circuit Court entered an order requiring a psychological evaluation of the child to determine and assess potential mental health issues arising from the move. On May 11, 2012, Sizemore petitioned the trial court to modify the custody arrangement based on the results of the mental health evaluation. The matter was transferred to the Marion Circuit Court by order entered on May 24, 2012.
On August 3, 2012, a full evidentiary hearing was conducted. The court took testimony from the child's kindergarten teacher; a school counselor; Sizemore's private investigator; Dr. Prathiba Ram, a psychiatrist who performed the court-ordered evaluation of the child; Rhodes; and Sizemore. Following the hearing, the trial court determined Sizemore had not produced sufficient proof of a change in circumstances to justify a modification of custody pursuant to the mandates of KRS 403.340. It denied her motion and subsequently denied her motion to alter, amend or vacate. This appeal followed.
Kentucky Revised Statutes.
Sizemore raises two allegations of error in seeking reversal. First, she argues the trial court erred in refusing to permit Dr. Ram to testify regarding the results of Rhodes's psychiatric evaluation and diagnosis. Next, she contends the trial court failed to consider all of the evidence and prejudged the case without affording a full hearing. We have reviewed the record and disagree with Sizemore's contentions.
First, Sizemore alleges the trial court abused its discretion in refusing to admit the results of Rhodes's psychiatric evaluation and in not permitting Dr. Ram to comment on the same. 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) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
The Clay Circuit Court ordered a psychiatric evaluation of the child, not of the parents. Dr. Ram took it upon herself to evaluate Rhodes and Sizemore and prepare reports detailing her findings. While KRS 403.340 permits a trial court to take the mental health of the parents into account when determining whether to modify a custody arrangement, pursuant to KRS 403.290(3) it is wholly within the trial court's discretion to seek the advice of professionals.
This Court is unaware of any statutory provision or precedent mandating the trial court to order a mental health evaluation or accept one prepared by a professional solely on her own volition. Thus, we cannot conclude the trial court's exclusion of Dr. Ram's report constituted an abuse of discretion, nor was it improper to exclude testimony regarding findings contained in the report.
Next, Sizemore argues the trial court improperly prejudged the matter and did not afford her a full hearing, thereby violating her right to due process. She bases her allegation on the trial court's announcement of its decision immediately following Rhodes's testimony but before she testified. Although the trial court did permit Sizemore to testify, its decision did not change. Thus, she alleges she was not permitted to fully present her case in chief prior to the trial court's decision being made. A careful review of the record indicates Sizemore's contention is without merit.
Following several hours of testimony, the trial court called counsel to the bench for a conference. During that conference, the trial court stated that during a break, Sizemore's counsel, Hon. James Avritt, Jr., had indicated his desire to call Rhodes to testify and had suggested that if, at the end of the examination, the trial court determined Sizemore had not met her burden of proof the hearing would conclude without calling Sizemore to testify. Avritt had assumed responsibility for Sizemore's representation following transfer of the case to Marion Circuit Court. Both parties accepted the suggestion and Rhodes was examined for approximately one hour.
At the conclusion of Rhodes's testimony, the trial court concluded Sizemore had failed to meet her burden of proof. Thus, pursuant to the aforementioned understanding suggested by Sizemore's attorney of record, Avritt, the trial court began to announce its findings.
At this point in the hearing, Hon. Debra Lambert interrupted the trial court to indicate Sizemore wanted to testify. Lambert had represented Sizemore while the action was pending in Clay Circuit Court, but had not entered an appearance on Sizemore's behalf in the Marion Circuit Court. Even so, Lambert was present at counsel table when testimony began, and remained there throughout the hearing. Lambert stated her belief that the trial court had misunderstood Avritt. She contended his intention was to have merely concluded his examination of Rhodes, not to have closed Sizemore's case in chief.
Avritt contradicted Lambert's statements. He reaffirmed to the trial court his belief that Sizemore's testimony would be mostly cumulative of testimony already given by Dr. Ram and that her testimony would not assist in the presentation of the case.
After some discussion, the trial court permitted Sizemore to testify. The trial court was unpersuaded by this additional testimony and again ruled Sizemore had not carried her burden of proof.
Sizemore argues the trial court's actions deprived her of the right to due process. We disagree.
Trials are not static and do not occur in a vacuum; they are fluid and ever-changing. In a strategic decision made in the heat of trial, Sizemore's counsel —Avritt—asked the trial court to allow examination of Rhodes out of turn and agreed that, if after Rhodes's examination was concluded, the trial court did not believe Sizemore had met her threshold burden of proof, he would rest and the hearing would be concluded. The trial court allowed counsel latitude and granted the request. Sizemore's counsel stated he believed this course of action would be sufficient to permit the case to go forward. However, the trial court was not persuaded by the testimony offered by Rhodes.
When it became apparent the trial court was about to enter an adverse ruling, Sizemore was dissatisfied and, through Lambert, requested that the trial court reconsider its decision to terminate the hearing and permit her to testify. Again, Sizemore got what she asked for—the trial court reconsidered and permitted her to testify. Unfortunately for Sizemore, her testimony was mainly cumulative and did not change the trial court's determination that she had failed to meet her burden of showing a change in circumstances in the custodian sufficient to justify a custody modification.
Still dissatisfied with the trial court's ruling, Sizemore continues to cry "Foul" and urges reversal, albeit without citation to legal authority. We are convinced none exists. The simple fact that Sizemore is dissatisfied with the trial court's decision does not make that decision wrong nor equate to reversible error. Sizemore was given every opportunity to present her case. Avritt indicated he had put on the best possible case given the facts he had with which to work. In short, Sizemore was unhappy with some of the court's rulings following counsel's strategic choices. She requested relief and was granted reconsideration. She cannot now be heard to complain simply because the trial court remained unconvinced by her testimony and ruled against her.
For the foregoing reasons and having discerned no errors in the proceedings, the judgment of the Marion Circuit Court is affirmed.
MAZE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: William R. Erwin
Danville, Kentucky
BRIEF FOR APPELLEE: Meredith A. Booth
Lebanon, Kentucky