Opinion
NO. 2013-CA-001785-ME
05-30-2014
DAVID B. SEAY APPELLANT v. KIMBERLY D. SEAY APPELLEE
BRIEF FOR APPELLANT: Tammy C. Skeens Pikeville, Kentucky BRIEF FOR APPELLEE: Jennifer Burke Elliott Prestonsburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 12-CI-00161
OPINION
AFFIRMING
BEFORE: JONES, STUMBO, THOMPSON, JUDGES. JONES, JUDGE: This appeal requires us to consider whether the Floyd Family Court ("family court") properly considered and denied a motion for modification of a child custody order in relation to allegations of possible drug use in the primary residential custodian's home. For the reasons set forth below, we affirm the Floyd Family Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Appellant David B. Seay ("Father") and the Appellee Kimberly Seay ("Mother") were married on September 10, 2005. During their marriage, the parties had one child, Minor Daughter, born January 15, 2006. The parties separated on or about December 17, 2009. On February 13, 2012, the parties entered into a Joint Dissolution of Marriage Agreement ("Agreement") wherein they agreed to joint custody of Minor Daughter with Mother to be designated as the primary residential custodian and Father "to have not less than standard visitation according to the standard visitation schedule and all other visitation as the parties may agree." The family court entered Findings of Fact, Conclusions of Law and Decree for Dissolution of Marriage, which incorporated the Agreement by reference, on April 10, 2012.
At the time the parties entered into the Agreement, Mother was residing in South Carolina and Father was residing in Kentucky. In accordance with the Agreement, Minor Daughter resided primarily in South Carolina with Mother. Minor Daughter attended school in South Carolina. While in South Carolina, Mother and Minor Daughter eventually came to live with Mother's boyfriend, David Davita ("Boyfriend").
Minor Daughter visited Father in Kentucky during the summer and over spring and winter school breaks. While in Kentucky, Minor Daughter lived with Father, Father's new wife, Lora Seay ("Stepmother"), and Seay's daughter.
On April 29, 2013, after Minor Daughter's spring break visit with Father in Kentucky, Father filed a Motion to Modify Parental Timesharing and Motion for Temporary Custody Pending Hearing in the family court. Father filed an affidavit in support of his motions averring that several different instances over the preceding months had led him to believe that Mother was not properly caring for Minor Daughter: 1) Mother sent Minor Daughter to Father for Christmas visitation without underwear or socks; 2) Mother set up a Facebook account for Minor Daughter, but blocked Father, Stepmother, and Minor Daughter's paternal grandmother from having access to it; 3) Minor Daughter arrived for spring break visitation very dirty and with body odor; 4) Minor Daughter had several unexcused absences from school; and 5) the prepaid card that Father supplied to Mother for child support had been used to purchase several items from Ali Baba, a "head shop," that sells, among other things, synthetic marijuana, and drug paraphernalia. Father also averred that Minor Daughter had reported to him things that caused him concern: 1) Mother and Boyfriend were "sick" and "asleep" much of the time and relied on their dogs to watch Minor Daughter; 2) Minor Daughter did not have anyone to play with her; 3) there were bugs crawling on the walls and floors of Mother's home; 4) Mother and Boyfriend "always" fought over money in front of Minor Daughter; 5) Minor Daughter goes to the Ali Baba store with Mother; and 5) Minor Daughter stated numerous times that she wanted to live with Father not Mother.
A head shop is defined as "[a] retail establishment that sells items intended for use with illegal drugs." Black's Law Dictionary 737 (8th Ed.2004).
Mother responded to Father's motion arguing that it should be dismissed as procedurally deficient because it was accompanied by only one affidavit in violation of Kentucky Revised Statutes (KRS) 403.340 and because Father failed to demonstrate an "extreme change of circumstances" had occurred since April 2012 when the family court entered the initial custody agreement.
In response to Father's motions, the family court set a hearing for August 29, 2013, and appointed a Guardian ad litem ("Guardian") for Minor Daughter. On July 3, 2013, the Guardian filed his initial report with the family court.
Minor Daughter was on summer break and visiting Father in Kentucky at the time of the report and related interviews.
The Guardian's report indicated that Minor Daughter reported to him that: 1) she resided with Mother and Boyfriend in South Carolina and that they had moved five or six times over an unspecified period of time, which Minor Daughter did not like; 2) Minor Daughter liked school and had attended the same school throughout the moves; 3) Minor Daughter did not have a bed in South Carolina and slept on a couch, which she hated; and 4) Mother and Boyfriend spank Minor Daughter, which hurts "real bad" and Boyfriend yells at her. However, Minor Daughter's answers regarding the Ali Baba store were most concerning to the Guardian. His reports states:
I asked [Minor Daughter] if she had ever shopped at a place called Ali Baba's in South Carolina and she advised me that she had. I inquired as to whether or not this was a toy store in order to obtain her response and she replied, "No it's a place where people buy things to smoke when they really don't smoke. Mom has a pink pipe she smokes out of and Dad [Boyfriend] smokes from Mom's pink pipe, too. Sometimes they get these gram things and put them in their pipes. I've watched them. Mommy sometimes chokes when she sucks it in. Eww, it smells really funny. They get milligrams sometimes. They get the grams and milligrams at Ali Baba's, but they didn't get the pink pipe there."The Guardian concluded his report as follows:
I believe that [Minor Daughter] was completely honest and forthright with me about all portions of our discussion. I am very disturbed and concerned about her explicit description of the pink pipe, the grams, the milligrams and all other parts of that conversation. It would appear by her innocent discussion with me that she has witnessed some type of drug being smoke in the pink pipe, however, I have no idea as to the extent of this. Also [Minor Daughter] appears to not have an appropriate place to sleep in South Carolina and she has moved several times which does not appear to be a stable environment, based upon her description. As such the undersigned attorney, in order to appropriately protect [Minor Daughter] and her best interest, believes that this Court should explore this possible drug issue and that [Minor Daughter] should not be returned to South Carolina pending a thorough evaluation of this matter.
After the Guardian's report was issued, Father filed a Motion for Temporary Custody Pending Hearing, asking the family court to order Minor Daughter not be returned to South Carolina until the August 29, 2013, hearing. In support of his motion, Father filed an affidavit parroting the Guardian's report.
On July 16, 2013, the family court took up Father's emergency motion. Mother argued again that neither the initial motion nor the emergency motion was properly supported and, therefore, the family court should dismiss both without a hearing. The family court deferred ruling on the affidavit issue and set a hearing for July 31, 2013.
The next day, July 17, 2013, the Guardian interviewed Mother at his office in Kentucky. Mother denied owning a pink pipe and denied ever using drugs. Mother explained that she and Minor Daughter resided with Boyfriend and had moved because their lease expired. She stated that Minor Daughter only slept on a couch temporarily while they were waiting for a bed to be delivered. Mother admitted to having shopped at the Ali Baba store in the past. She indicated that the main part of the store carried a variety of clothes, purses and jewelry, but was a head shop in the back. She denied purchasing any items from the head shop portion of the store. Mother also submitted to a drug screening test on July 16, 2013, which came back negative.
The Guardian interviewed Father on July 18, 2013. Father gave the Guardian documentation associated with the prepaid card he supplied Mother for child support. The documentation showed that the card was used to make several purchases from the Ali Baba store, but it did not reveal what items were purchased.
The Guardian conducted a second interview with Minor Daughter on July 29, 2013. During this interview, Minor Daughter expressed that she wanted to return to South Carolina.
The Guardian submitted a second report to the family court on July 31, 2013, summarizing his interviews with Mother and Father and his second interview with Minor Daughter. He concluded his report as follows:
The undersigned attorney is now of the opinion, after meeting and interviewing all parties, that there may have been some type of use of marijuana in the past by [Mother], however, she has denied said drug use and [Father and Minor Daughter] have both made statements indicating that if there was any type of drug use, it was quite awhile ago. Also, I have reviewed the purchases made available to me in regard to Ali Baba's Store and these show that purchases were made, however, there is no indication as to exactly what was purchased, therefore, I cannot determine whether these were improper or not. I am not as concerned as I previously was being that there is no testimony regarding any type of recent drug use and [Mother] had a clean drug screen at the date of the last hearing.
Prior to the hearing Father submitted a second affidavit, from Stepmother, in support of his motions. Stepmother's affidavit also parroted the Guardian's first report.
On July 31, 2013, the family court held the hearing as scheduled. Father, Mother, Minor Daughter, and Guardian testified. Their testimony was consistent with their prior interviews. At the hearing, Mother also renewed her motion to dismiss due to the lack of a sufficient number of supporting affidavits.
On August 2, 2013, the family court entered the order that is the subject of this appeal. The family court first determined that despite Mother's objections, the parties were properly before the Court. The family court then denied Father's emergency motion after concluding: "[T]here is simply no evidence before the Court, at this time, that would rise to the level of proving the minor child is at a serious risk of endangerment which is the standard put forth by KRS 403.340."
Nevertheless, the family court expressed concern about the potential drug use and housing in South Carolina. Accordingly, the court ordered: 1) Mother to "make immediate contact with the South Carolina office of social services and request a home evaluation be conducted within 30 days"; 2) Mother to submit to three random drug tests to be performed within the next 60 days; and 3) "that no purchase using child support money shall be made at Ali Baba's or any other head shop." The Court further warned Mother that failure to comply with these terms could result in her being held in contempt of court.
The record indicates that Social Carolina officials conducted a home visit and filed a corresponding report on August 13, 2013, expressing no concerns about Minor Daughter's living environment or care.
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Father filed a motion seeking reconsideration of the court's August 2, 2013, order. The family court denied the motion on September 4, 2013.
This appeal followed.
II. STANDARD OF REVIEW
The standard of review for matters of child custody and support is one of clear error/abuse of discretion. "The test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)).
A judgment is not "clearly erroneous" if it is "supported by substantial evidence." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id. Our Supreme Court has defined "abuse of discretion" as a court's acting arbitrarily, unreasonably, unfairly, or in a manner "unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
III. ANALYSIS
As a primary matter, Mother argues in her brief that the family court erred in refusing to dismiss this matter on the pleadings. She contends that the family court did not have jurisdiction to conduct a hearing because Father failed to comply with KRS 403.340 by submitting two affidavits in support of his original motions.
In Masters v. Masters, 415 S.W.3d 621 (Ky. 2013), the Kentucky Supreme Court recently rejected this very argument. The Court held that a party's failure to comply with the affidavit requirement, while potentially raising a point of error, did not divest the family court of subject matter jurisdiction. See id. at 624 ("And so, while it may be argued that Shane's motion, filed within two years of the final custody order, lacked the requisite number of affidavits, it cannot be said that the Madison Family Court lacked subject matter jurisdiction over the controversy.") Thus, it is without dispute that the family court had subject matter jurisdiction.
Of course, this does not mean that the family court's rulings denying Mother's motions to dismiss were correct. Id. ("The failure to comply with the statute simply gives the aggrieved party the opportunity for relief based upon the court's improper exercise of its judicial power."). The trial court concluded that Father had remedied the alleged deficiency prior to the hearing. Mother has not presented us with any persuasive authority nor have we located any suggesting the trial court incorrectly allowed Father to remedy the deficiency by submitting an additional affidavit after he filed the motion, but before the hearing on it.
Additionally, Mother did not file a notice of cross-appeal asserting that the trial court erred as a matter of law in failing to dismiss Father's motion on the pleadings. As such, we decline to fully address this alleged error as it was not properly preserved and presented for our review. See Brown v. Barkley, 628 S.W.2d 616, 619 (Ky. 1982).
We now turn to the trial court's substantive decision on Father's motion. Father was seeking modification of a custody order less than two years after it was entered by the family court. KRS 403.340 provides:
(2) No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:
(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional
health; or (b) The custodian appointed under the prior decree has placed the child with a de facto custodian.
Like the family court, we are deeply concerned about Minor Daughter's descriptions of possible drug use by Mother and Boyfriend while Minor Daughter was in Mother's custody. However, after further investigation, the family court was not able to conclude from the evidence that any drug use had taken place in the recent past or was presently occurring in the home. As the statute makes clear, a motion to modify custody made less than two years after its date must demonstrate that the child's "present environment" poses a serious risk. Mother's drug screen was conducted in mid-July, just a few weeks before the hearing was negative. Additionally, there was no evidence that Minor Daughter was in any serious mental, physical, moral or emotional danger at the time of the hearing. The family court after having considered all the testimony and evidence, including the Guardian's recommendations, concluded that returning Minor Daughter to Mother's custody in South Carolina for the start of the school year did not pose a serious threat to Minor Daughter's present well being. Nevertheless, the family court took appropriate and commendable action to ensure an appropriate home environment existed by directing a home study and random drug tests for Mother. Having carefully reviewed the record, we do not believe that the family court abused its discretion in denying Father's emergency motion. We find no error in the family court's orders.
IV. CONCLUSION
For the reasons set forth above, we affirm the Floyd Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Tammy C. Skeens
Pikeville, Kentucky
BRIEF FOR APPELLEE: Jennifer Burke Elliott
Prestonsburg, Kentucky