Opinion
NO. 2012-CA-000026-ME
11-02-2012
TODD SCHULKERS APPELLANT v. MARY CARLA SCHULKERS APPELLEE
BRIEFS FOR APPELLANT: C. Ed Massey Erlanger, Kentucky BRIEF FOR APPELLEE: N. Jeffrey Blankenship Florence, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 95-CI-00520
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. ACREE, CHIEF JUDGE: Todd Schulkers (Father) appeals the Kenton Family Court's determination that his twenty-one year old son, Zachary, is disabled and the consequent denial of Father's motion to eliminate his child support obligation to Zachary. We affirm.
I. Background
Mary Schulkers (Mother) and Father divorced in June 1997. Mother was designated the primary residential parent of the parties' four children, and Father paid child support accordingly.
On August 2, 2011, Father filed a motion to modify his child support obligation on the basis that three of the four children had been emancipated. Zachary, the eldest child, graduated from high school in September 2010 at the age of twenty. The parties' twin daughters graduated from high school in May 2011, while the youngest child was still attending high school.
Mother objected to Father's motion to modify child support. Although she conceded that the twins were emancipated, she maintained that Zachary was disabled pursuant to Kentucky Revised Statutes (KRS) 405.020(2) and therefore subject to his parents' custody. She argued Zachary was wholly dependent on his parents for support and unable to acquire or maintain employment or to perform everyday tasks associated with independent living. The basis of her claim was Zachary's previous diagnoses of Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Generalized Anxiety Disorder, and a mood disorder not otherwise specified.
Following an evidentiary hearing, the family court found Zachary was wholly dependent. Father was ordered to continue paying child support for Zachary and the parties' youngest child, though his monthly obligation was reduced to account for the twins' emancipation. Father appealed.
II. Standards of review
Whether a child is disabled for purposes of custody and child support is a question of fact. Nelson v. Nelson, 287 S.W.3d 667, 670 (Ky. App. 2009). Consequently, we are permitted to disturb such a finding only when it is clearly erroneous. Kentucky Rule of Civil Procedure (CR) 52.01. "A factual finding is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person." Crawford v. Crawford, 358 S.W.3d 16, 20 (Ky. App. 2011) (citations omitted).
Proper interpretation and application of a statute is a question of law. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011). A trial court's legal conclusions are entitled to no deference. Id.
III. Discussion
Father challenges the circuit court's finding of fact that Zachary is disabled as contemplated by KRS 405.020(2). He also argues that the order was legally insufficient because there was no explicit finding that Zachary's supposed disabilities predated his graduation from high school. We will address each argument in turn.
a. The family court's factual conclusion that Zachary is wholly dependent due to a mental or physical disability
Father has raised a number of reasons he believes the family court's finding of disability cannot stand. He argues: (1) Zachary's problems are behavioral rather than mental or physical disabilities, and are not subject to KRS 405.020(2); (2) his education and training make him fit for employment; and (3) there is insufficient proof that his conditions are permanent.
Before addressing these specific issues, we will review the evidence in support of the family court's finding that Zachary is disabled.
Zachary's treating medical professional, psychiatric nurse practitioner Virginia Peppers, testified that she believed Zachary was disabled from employment. The bases of her opinion included Zachary's inability to understand or follow directions, a short temper, the tendency to become very easily frustrated, vindictiveness, and failure to take responsibility for his actions. Peppers testified that these behavioral difficulties were severe and frequent and that she had first treated Zachary for ADHD when he was six years old. Based on her treatment of Zachary in more recent years, Peppers observed no improvement in his condition. Despite having a learning disability and operating under an Individualized Educational Plan, as required by the Individuals with Disabilities Education Act, Zachary was able to graduate from high school with a regular diploma. 20 U.S.C. § 1400, et seq.
Mother testified that Zachary suffered from pervasive, sometimes extreme, behavioral problems which interfered with his ability to function normally. According to Mother, Zachary told lies in abundance; he was routinely destructive, sometimes intentionally but often unintentionally; he often stole money from family members; and he had angry and violent outbursts. Mother's testimony suggested that Zachary was simply unable to control his actions. She stated that he had applied for employment on many occasions, but had never been hired. He had been able to achieve graduation from high school only with considerable accommodations and many sessions of summer school.
In his testimony, Father opined that Zachary was not disabled. He claimed Zachary was able to perform such everyday tasks as cooking and mowing the lawn. Father believed Zachary's failure to find employment was due to a lack of effort rather than a lack of ability. He also claimed his son's outbursts were rare and believed Zachary was capable of following directions. It is this evidence which Father believes should have prevented the family court from finding Zachary disabled.
We disagree. On the basis of Mother's evidence, the family court was justified in finding Zachary disabled. This evidence showed a pattern of behavioral and psychological impediments to Zachary's ever being able to provide and care for himself. Although Father presented evidence that Zachary is not entirely incapacitated, it is insufficient to warrant reversal because Mother presented adequate evidence to support the conclusion the family court reached that Zachary was wholly dependent. By arguing the contrary, Father is merely asking this Court to reweigh the evidence and to find his evidence more persuasive. That is not our function. Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010) (citing Bickel v. Bickel, 95 S.W.3d 925, 928 (Ky.App.2002)). Where the evidence would permit a reasonable person to reach the same conclusion as the family court, we cannot reverse, and that is precisely what happened in this case. We will nevertheless return to the specific concerns Father has raised on appeal.
Father protests that KRS 405.020(2) permits a parent continued custody of children who have reached the age of majority only when their disability is "physical or mental[.]" He claims Zachary's problems are behavioral, and therefore neither physical nor mental. This position is incorrect.
Behavioral problems can be manifestations of diagnosed mental disorders. The evidence in this case is that Zachary's behavioral problems stem from mental disability: the record reflects he suffered from learning disabilities, inability to regulate anger and frustration, problems with memory, inability to follow directions, and lack of impulse control. These disorders are mental in their nature in that their origins are psychological.
Our understanding of the proper application of KRS 405.020(2) is supported by Black's Law Dictionary's definition of mental illness:
1. A disorder in thought or mood so substantial that it impairs judgment, behavior, perceptions of reality, or the ability to cope with the ordinary demands of life. 2. Mental disease that is severe enough to necessitate care and treatment for the afflicted person's own welfare or the welfare of others in the community.(9th ed. 2009) (emphasis added). Mother's evidence was sufficient to permit a finding of mental disability in accordance with this definition.
Father also believes Zachary's education and training make him fit for employment, and that he is not disabled on that basis. He argues that Zachary's achievement of a high school diploma and brief period holding a Certified Nurse Assistant license is evidence Zachary is able to find gainful employment.
Acquiring a high school diploma or other certification is not itself sufficient to mandate a finding that the child is not wholly dependent. See, e.g., Nelson, 287 S.W.3d 667. The evidence was that Zachary was able to graduate only because his school provided substantial assistance and altered the requirements. Zachary has never had a job despite his education and licensure. There was testimony that he is effectively unemployable due to a history of lying and stealing and the inability to follow directions or control his anger. A person's education and training, while important factors in the family court's determination, are not dispositive of employability or independence.
In Nelson, supra, this Court affirmed an order of the family court finding the parties' child wholly dependent despite the fact that she was able to maintain part-time employment.
Father next argues a finding of dependence was unwarranted because there was no evidence Zachary's problems are permanent. KRS 405.020(2). We disagree. Mother first noticed his problems when Zachary was very young, and he was diagnosed with ADHD at age six. The history and pattern of difficulties have pervaded his life. His treating medical health professional found no improvement in Zachary's condition. The evidence was sufficient to justify a finding that Zachary's disabilities are permanent.
b. Legal sufficiency of the ruling
Finally, Father contends we should not affirm the family court's order because it lacks a finding regarding whether Zachary's disability predated his emancipation. As Mother notes, however, Father failed to present this alleged deficiency to the family court, and so he has waived the right to contest it.
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rue 52.02.CR 52.04. Father has not even represented that he preserved this issue, as required by CR 76.12(4)(c)(v), and our review of the record indicates that he has not. We will not reverse under these circumstances.
The family court did make extensive findings of fact in support of its order; Father objects only to the failure to state specifically whether Zachary's disability predated his attainment of majority, a matter Father argues is implicit in the requirements of KRS 405.020(2), rather than an explicit prerequisite to continued custody.
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IV. Conclusion
Father has raised no issue of fact or law which warrants disturbing the family court's finding that Zachary is wholly dependent for purposes of KRS 405.020(2) and ordering that Father continue paying child support for his care. We affirm.
MOORE, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS AND FILES SEPARATE OPINION.
KELLER, JUDGE, CONCURRING: I concur with the majority's opinion. However, I write separately to briefly address the sufficiency of the family court's ruling. As noted by the majority, Father failed to move the family court for a specific finding that Zachary's disability predated his emancipation. I agree with the majority that, absent that motion, we are foreclosed from directly addressing the issue. However, I note that there is sufficient evidence of substance in the record that would have supported a finding by the family court that Zachary's disability predated his emancipation. Therefore, even if Father had properly preserved the issue, I would have voted to affirm. BRIEFS FOR APPELLANT: C. Ed Massey
Erlanger, Kentucky
BRIEF FOR APPELLEE: N. Jeffrey Blankenship
Florence, Kentucky