Opinion
NO. 2013-CA-002023-ME
07-11-2014
MICHAEL TRAVIS RUGGLES APPELLANT v. JACCI KISER APPELLEE
BRIEF FOR APPELLANT: Tracy D. Frye Russell, Kentucky BRIEF FOR APPELLEE: Roger W. Hall Ashland, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 11-CI-00730
OPINION
AFFIRMING
BEFORE: LAMBERT, MOORE, AND NICKELL, JUDGES. LAMBERT, JUDGE: Michael Ruggles appeals from the Boyd Circuit Court's order allowing Jacci Kiser to move to another state with the parties' minor child. In addition, Mr. Ruggles appeals the trial court's denial of his request for week-to-week shared parenting time. Finding no error or abuse of discretion, we affirm.
Mr. Ruggles is the biological father of Natalee Drew Ruggles, who was five years of age at the time the trial court's order was entered on November 15, 2013. Ms. Kiser, Appellee, is Natalee's biological mother. Although the parties had a child together, they were never married.
Mr. Ruggles had no physical or financial involvement with Natalee for six to eight months after her birth. Ms. Kiser was Natalee's primary residential parent when the parties were designated as joint custodians. Mr. Ruggles had time-sharing on Tuesdays from 4-8 p.m.; Thursday overnights; Fridays when Ms. Kiser was working; and every other weekend. During the summer time the parties operated under a week on, week off schedule. That time-sharing plan had been in place since December 2011.
At the time of Natalee's birth, Mr. Ruggles was unemployed, and he has been unemployed several times during the past five years. Ms. Kiser graduated from Morehead State University with a degree in chemistry and a minor in integrated science. She then graduated from the University of Kentucky satellite campus for physician's assistant studies at Morehead and got her master's degree. Ms. Kiser's first job as a physician's assistant was at the Southern Ohio Medical Center in Portsmouth, Ohio. She attempted to find work closer to Ashland but that was at a time when King's Daughters Medical Center (KDMC) was laying off employees. She was offered a position at the Cleveland Clinic but turned it down because it was "really far away." She worked for fourteen months and was making $96,300 annually when she was laid off by the hospital due to KDMC putting in a new hospital in Portsmouth. She was able to find a job closer to Ashland with Dr. James McGinnis, who has a family practice in Wheelersburg, Ohio.
Ms. Kiser sent written notice to Mr. Ruggles dated May 11, 2013, advising him that she would be moving in order to obtain employment. In order to work for Dr. James McGinnis, Ms. Kiser had to move into the Wheelersburg area so she could fully support the doctor and be there for the patients in case of emergency.
With Ms. Kiser working in Wheelersburg with Dr. McGinnis, Natalee's school would be one block away from her mother's office and she would not have to be in daycare at all. Ms. Kiser would be working Monday, Tuesday, and Wednesday, half days on Thursday and Friday, and would be on call one Saturday per month.
Mr. Ruggles is a member of the carpenter's union and has worked very little for years. At the hearing on August 15, 2013, Mr. Ruggles confirmed that he had not been employed since his deposition was taken on July 26, 2013, and stated that he might get out of the carpenter's union to try and seek better employment. He further testified that he had been an apprentice for eleven years and that despite the fact that it would only take a couple months to become a journeyman, he had not attempted to finish the process.
Natalee had been enrolled through the Boyd County School system for two years and was set to be enrolled in kindergarten at Summit Elementary. Although the parties shared joint custody of Natalee, at times the parental relationship was strained. This discord came to a head in the spring of 2013 when Ms. Kiser announced that she was planning to relocate because of her job.
On April 22, 2013, Mr. Ruggles filed a motion requesting a modification of timesharing and for a parental fitness evaluation of Ms. Kiser. Before that motion could be heard, on May 15, 2013, Mr. Ruggles filed an emergency motion for relief after receiving a text from Ms. Kiser in which she informed him that she and Natalee were moving to Wheelersburg. On June 7, 2013, the trial court entered an order directing that Ms. Kiser return Natalee to her home in Kentucky and that she be enrolled in Summit Elementary for kindergarten. Thereafter, on July 24, 2013, Mr. Ruggles again filed an emergency motion after Ms. Kiser enrolled Natalee in school in Ohio. On August 8, 2013, Mr. Ruggles again filed yet another motion for immediate verified relief because Ms. Kiser had not enrolled Natalee in Summit Elementary despite the June 7, 2013, order of the trial court ordering her to do so. On August 8, 2013, the court entered an order stating that the child was to be enrolled in Summit Elementary School, where she had been attending, and that Ms. Kiser was to ensure that the child was delivered there during her parenting time. The court set a hearing on the emergency issues for August 15, 2013, before a domestic relations commissioner. Two days prior to that hearing, the trial court entered an order rescinding the August 8, 2013, order that had directed that Ms. Kiser enroll Natalee at Summit Elementary.
At the hearing on August 15th, Mr. Ruggles inquired as to what had transpired that had caused the court to grant his requested relief and then rescind that relief five days later without any motion having been filed by Ms. Kiser or any hearing having taken place before the court. The domestic relations commissioner stated, "I'm not sure I have a complete answer for you." The commissioner then conducted a hearing on the emergency issue regarding where Natalee would be attending school and determined that Natalee should attend school at Summit Elementary until further order of the court.
On September 10, 2013, Mr. Ruggles's motion for change in timesharing came on for a hearing before the commissioner. At that time, Mr. Ruggles requested that the proposed move to Ohio not be allowed, and regardless of the decision related to the relocation, that he be awarded week-to-week shared parenting time with Natalee. A hearing was held on September 10, 2013, and the commissioner issued an order and recommendation to the trial court on September 26, 2013. Exceptions to that order and recommendation were filed by Ms. Kiser. The trial court granted a hearing on November 8, 2013, to consider the objections, and at that time there was an agreement by the parties for the court to conduct a de novo examination of the transcript and review the pleadings. The court entered an order dated November 15, 2013, denying Mr. Ruggles's motion for modification of custody or modification of parenting time to include shared parenting and further ruled that Ms. Kiser could live in Wheelersburg, Ohio, with her daughter and could enroll Natalee in school there. The trial court further ordered the parties to establish a pick up and drop off location halfway between their residences and ordered Mr. Ruggles to become current on his child support. This appeal now follows.
In determining whether a child should be permitted to move out of state, a family court should resolve the issue according to the child's best interests. See N.B. v. C.H., 351 S.W.3d 214, 222 (Ky. App. 2011). We note that in Mr. Ruggles's recitation of his arguments there is a continuing reference describing the court's order as an award of custody; however Mr. Ruggles did not petition the court to change custody from joint to sole, but instead was requesting equal parenting time on a week-to-week shared basis.
In Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008), the Kentucky Supreme Court stated:
[I]f the only interest of the opposing party is to object to relocating the child, but not to alter joint decision-making, then he is seeking to have the existing visitation/timesharing arrangement changed, and need only establish that it is in the child's best interest not to relocate, which would thereby change the existing visitation/timesharing situation.With that in mind, Mr. Ruggles argues that it was not in Natalee's best interests to move to Ohio with her mother. Mr. Ruggles cites to the factors found in Kentucky Revised Statutes (KRS) 403.270, which govern a court's initial custody determination, and argues that the court in this case did not follow the enumerated factors and instead based its decision upon its apparent disdain that Mr. Ruggles had not bettered himself to the court's satisfaction by obtaining more lucrative employment.
Ms. Kiser responds that Pennington is not directly applicable in the instant case because it does not set out any guidelines to consider when there is a possible relocation by a custodial parent. Ms. Kiser argues that there is nothing in that case that compels the trial court to give Mr. Ruggles equal parenting time when he is already getting more time than is set out under the local guidelines. Ms. Kiser notes that her move to Ohio would not amount to a diminution of Mr. Ruggles's visiting privileges with Natalee. Ms. Kiser notes that the Court in Pennington did confirm that the circuit court has complete discretion regarding the use of the commissioner's report and that the trial court has the right to reevaluate the evidence and reach a different conclusion from the commissioner. Id. at 771. The court cited CR 53.06(2) and concluded that a trial court may adopt the commissioner's report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions. Id. In the instant case, Ms. Kiser argues that the trial court read the transcript of the hearing before the commissioner and conducted a de novo review.
We agree with Ms. Kiser that in the instant case the court conducted a de novo review of the commissioner's hearing and report per the parties' agreement, which it was entitled to do under Pennington. Furthermore, we agree that the proposed move to Ohio did not alter Mr. Ruggles's parenting time with Natalee, and thus a change in parenting time was not warranted by the move. Mr. Ruggles was to continue to see his daughter as much as when she resided in Boyd County, Kentucky. Ms. Kiser was not requesting a change in time-sharing, but was instead requesting permission to move thirty-five miles away for work.
Mr. Ruggles argues that a move to Ohio was not in Natalee's best interests and that the trial court abused its discretion in this regard. Mr. Ruggles argues that the trial court erred when it weighed the mental and physical health of all the involved individuals, which he argues would have weighed in favor of an award of shared parenting to Mr. Ruggles and prevention of the relocation.
Mr. Ruggles argues that the observations by his expert, Dr. Bobby Miller, did not determine that he had any psychological or parenting abnormalities that would prevent shared parenting time. However, he argues that Ms. Kiser had a history of depression and anxiety and that she admitted to having taken Prozac, Xanax, Ambien, Paxil, Lexapro, and Cymbalta, and treating with a psychiatrist from 2009 to 2011.
Ms. Kiser responds that during the time period from 2009 to 2011, the first two years of Natalee's life, she was scrambling around to care for herself and her daughter and was getting an education and seeking employment. She admitted to taking prescription medications during this time period. However, she also points out that Mr. Ruggles admitted to taking Zoloft on the days that he testified at the August and September hearings, which would seem to be more relevant than her prescription medication use several years ago. A review of the record by this Court indicates that neither party have been adversely affected by prescription medications, and thus the trial court's lack of consideration on this issue does not amount to an abuse of discretion.
Mr. Ruggles also argues that the trial court ignored the portions of the report that indicated that Ms. Kiser and Mr. Ruggles had a heated text message exchange as further support that the trial court did not properly consider Dr. Miller's report. A review of the record indicates that there is nothing in Dr. Miller's report that would compel the trial court to either prohibit Ms. Kiser from moving to Wheelersburg, or to change the status of Ms. Kiser as the primary residential custodian to shared parenting. Thus, we are not persuaded by Mr. Ruggles's arguments to the contrary.
Mr. Ruggles testified about a number of relatives of his who resided in Boyd County, Kentucky, as evidence that the trial court should not permit Ms. Kiser to move. However, testimony about the relationships between those relatives and Natalee was not provided to the court, and thus the trial court could place little emphasis on this evidence, as it supports neither Mr. Ruggles's position that Natalee should not be able to move nor Ms. Kiser's position that she should.
Mr. Ruggles also argues that the evidence regarding Natalee's adjustment to her home, school, and community did not support the court's ruling. A review of the record indicates that the trial court considered the fact that Natalee will not have to be in daycare at her new home, as her school is close to her mother's new office. Furthermore, the evidence was that Natalee will get to spend a great deal of time with her primary caretaker, Ms. Kiser. There was no evidence that Natalee will be greatly harmed by starting kindergarten for a couple of weeks at Summit Elementary and then relocating to a school in Wheelersburg, Ohio.
Mr. Ruggles next argues that the trial court improperly considered his unemployment as the only basis for allowing Ms. Kiser to relocate. Mr. Ruggles essentially argues that this was the only factor the court actually considered when making its decision. However, the record indicates otherwise, and we agree with Ms. Kiser that the court considered the fact that Ms. Kiser has been Natalee's primary caretaker her entire life. We also agree that when determining what is in the best interest of the child, the court has a duty to assess issues having to do with each parent's responsibility for themselves and for their children. Mr. Ruggles is an individual who works sporadically and has done nothing to obtain additional education or qualifications to become employed or to become better employed. Furthermore, he has never been current on his child support. We agree with Ms. Kiser that the issue is not about which party makes more money or who has the most money, but rather the issue is whether Mr. Ruggles's lack of ambition to get a job, to pay his child support, and to do what is necessary to take care of his family reflects upon his ability and intent to take care of Natalee. We agree with Ms. Kiser that it was appropriate for the trial court to consider Mr. Ruggles's past behaviors in caring for Natalee and in providing support for her when considering whether it is in her best interest to remain primarily with Ms. Kiser and move to Ohio.
Mr. Ruggles also points out that Ms. Kiser testified that the move was a convenience for her and that as Natalee's primary custodian, she needed to be close to her. Mr. Ruggles seems to argue that the trial court simply allowed Natalee to move with her mother as a convenience to Ms. Kiser. We again disagree. The record reflects that it will be an advantage to Natalee that she does not have to attend daycare and is close to her mother's place of employment. Furthermore, the record also indicates that Ms. Kiser's employer, a physician, testified that the job necessitates that Ms. Kiser live close by so that she can attend to patients in emergency situations when he cannot be there and also so that she could attend to patients to help him out. His testimony reflected that Ms. Kiser's living close by was a requirement of the job, not a mere convenience. Thus, Mr. Ruggles's argument in this regard is not persuasive.
A review of the record indicates that the trial court did not abuse its discretion in allowing Ms. Kiser to remain the primary residential custodian and move thirty-five miles away to Wheelersburg, Ohio, for employment reasons and in denying Mr. Ruggles's request for shared week-to-week parenting time. We find no error and therefore affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Tracy D. Frye
Russell, Kentucky
BRIEF FOR APPELLEE: Roger W. Hall
Ashland, Kentucky