Opinion
NO. 2012-CA-000435-ME
05-03-2013
SHEILA JANE SPINDLEMAN APPELLANT v. MARK EDWARD SPINDLEMAN APPELLEE
BRIEF FOR APPELLANT: Lisa A. DeRenard Benton, Kentucky BRIEF FOR APPELLEE: Amy R. Roos Murray, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 11-CI-00123
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. CAPERTON, JUDGE: The Appellant, Sheila Jane Spindleman, appeals the February 13, 2010, findings of fact, conclusions, and judgment entered by the Calloway Circuit Court, designating the Appellee, Mark Edward Spindleman, as primary residential custodian, and specifically ordering that he have "sole authority" to make medical, dental, and optometric decisions for the child, and awarding standard visitation to Sheila. The court also ordered that J.P. have no contact of any kind with the child of the parties. On appeal, Sheila argues that the trial court abused its discretion by substituting its notes from a temporary custody hearing as evidence in a final hearing on custody, that its findings relating to J.P. were not based upon substantial evidence, and that it acted arbitrarily in requiring Sheila to undergo two mental health evaluations, while Mark did not have to undergo any. She also appeals the portion of the judgment ordering her to pay monthly support to Mark in the amount of $228.94. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
A friend and alleged paramour of Sheila's.
Sheila and Mark were married on September 23, 1995, and are the parents of a four-year-old minor child, E.S. After separating, reconnecting, and separating again, Sheila filed a domestic violence petition, which was denied following a hearing on March 23, 2011. On that same date, Sheila filed a petition for dissolution of marriage, and also requested primary custody of E.S., as well as various pendent lite motions.
On April 12, 2011, Mark filed a verified response, in which he requested temporary and permanent custody of E.S., as well as a response to Sheila's pendente lite motion, stating in an attached affidavit that he is an able-bodied person, capable of taking care of E.S. Mark further stated that due to Sheila's mental health issues, which were not currently under control, it would be in the best interest of E.S. for Mark to receive custody.
Mark states that from the date of separation until the temporary custody hearing held in May of 2011, he had difficulty receiving any visitation with E.S. A temporary agreed order was entered on March 12, 2011, which granted Mark certain visitation dates, as a result of Sheila not providing Mark with dates and times on which to visit E.S. During the course of the temporary hearing, evidence was presented that Sheila had suffered from mental health issues since the age of 19, that she told several individuals that she was molested as a teenager by J.P., whom she was seeing two to three times a week at the time of the hearing, and that she was investigated by social services due to mental health concerns.
Mark asserts that by contrast, he was described as a loving, caring, and concerned parent. Sheila testified that she had worked in the past, was able-bodied and able to work, and was seeking employment. Following this hearing, Mark and Sheila were granted temporary joint custody, with Mark designated as primary residential custodian. At a later date, the parties realized that this temporary hearing was recorded without audio footage.
Supplemental findings of fact and conclusions of law were entered on May 25, 2011, in which Sheila was ordered to pay child support to Mark in the amount of $230.14. It was also ordered that the parties split work-related daycare expenses, and any uninsured medical bills according to the assigned percentages of 37% by Sheila and 63% by Mark.
In June of 2011, Sheila retained new counsel and filed a motion to vacate the May 25, 2011, ruling, on the grounds that E.S. received monthly Supplemental Security Income (SSI) benefits. Mark filed a response, in which he advised that he had previously testified concerning the SSI income during the hearing, and that Sheila had been provided with the opportunity to cross-examine Mark concerning same, or to present any relevant documentation or evidence pertaining to this issue, but did not. Sheila's motion to vacate was denied on June 9, 2011.
On June 24, 2011, Sheila filed a motion to reinstate summer visitation, shortly after submitting a mental "self-assessment" completed by Four Rivers Behavioral Health. Mark submitted a response that challenged Sheila's self-assessment, as she had been ordered to complete a mental health evaluation. Mark argued that the report was not a mental health evaluation completed by a licensed psychologist or psychiatrist. He argued that the assessment failed to address the concerns raised at the temporary custody hearing, which included the investigation by social services, Sheila's claims of psychic mind-reading ability and spells; current contact between Sheila and J.P., and Sheila's extensive mental health history. Sheila's motion to reinstate summer visitation was denied on July 11, 2011.
This self-assessment provided that Sheila was seeing Dr. Melissa Jones for depressed mood, and had been prescribed Celexa, Xanax, and Clonopine. It was noted that Sheila's symptoms seemed to meet the criteria for Adjustment Disorder with Anxiety and Depressive Disorder NOS, and recommended that she attend a women's issue group. Sheila declined due to scheduling conflicts.
Testimony from various individuals below indicated that Sheila had made claims to be a "white witch" on more than one occasion.
Testimony and medical records below established that Sheila has undergone treatment for various mental health issues since the age of 19, including for depression, anxiety, and panic attacks, and for which she has taken numerous psychiatric medications, and treated with various medical providers.
Thereafter, in August of 2011, Sheila filed a motion to hold Mark in contempt for failure to do a number of things, including failure to follow the May 13, 2011, recommendation of E.S.'s physician for E.S. to undergo an MRI, failure to confer with Sheila regarding the child's medical care, failure to confer with Sheila regarding the child's education, and failure to follow the recommendation of the child's dentist to send the child to a pediatric dentist due to the child's recent cavities and decay. Mark also moved to hold Sheila in contempt for failure to pay child support as ordered in the temporary order, and failure to comply with family court rules.
Both parties and their counsel agreed to address the aforementioned issues during the course of a three-day trial, held on November 9 and 10, 2011, and February 2, 2012. Neither Mark nor Sheila were held in contempt. As noted, the court ultimately entered its findings of fact, conclusions, and judgment on February 13, 2012. Therein, the court awarded joint custody to the parties, and designated Mark as primary residential custodian. Mark was given sole authority to make medical, dental, and optometric decisions for the child. Concerning child support, the court held that pursuant to KRS 403.211 and KRS 403.212, Sheila was required to pay Mark the sum of $228.94 per month, effective March 1, 2012. The parties were ordered to split all medical expenses for E.S. not otherwise covered by insurance pursuant to their percentage of the combined gross monthly income (Sheila 38%, Mark 63%), and were also ordered to split all work-related and reasonable day care expenses according to the same percentages. It is from those findings, conclusions, and orders that Sheila now appeals to this Court.
The court found that Sheila was unemployed, but imputed to her minimum wage income for forty hours per week, or $1,257.00 gross income per month.
As her first basis for appeal, Sheila argues that the court's failure to account for which parent would be designated as payee for the child's monthly SSI payment was clearly erroneous. In making this argument, Sheila relies upon the unpublished opinion of this Court in Sorrell v. Sorrell, 2009-CA-002268-ME, wherein, this Court construed KRS 403.211(15) by stating that:
KRS 403.211(15) provides that:
A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation. An amount received in excess of the child support obligation shall be credited against a child support arrearage owed by the parent that accrued subsequent to the date of the parental disability, but shall not be applied to an arrearage that accrued prior to the date of disability. The date of disability shall be as determined by the paying agency.
A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation.Sheila asserts that the court erred in not considering the SSI payments received on the child's behalf in any of its calculations or orders, and requests this court to remand for additional findings accordingly.
In response to Sheila's arguments, Mark asserts that Sheila fails to acknowledge the undisputed fact that neither parent in this matter has been determined to be disabled by the Social Security Administration, and that neither parent receives Social Security Disability, Supplemental Security Income, or SSD for a child because of a parental disability. Mark asserts that the evidence below clearly indicates that E.S. receives a supplemental security income payment for his own disability, the amount of which greatly fluctuates based upon household income. Mark asserts that the affidavit and motion to vacate to which Sheila refers in her argument is only a temporary order of support, and that the figures delineated in that affidavit refer to amounts received while Mark and Sheila were together, and an amount received by Sheila prior to the court's award of temporary custody and timesharing. Mark argues that in making her arguments, Sheila ignores the Kentucky Child Support Guidelines set forth in KRS 403.212, as well as the opinion rendered in Barker v. Hill, 949 S.W.2d 896, 897 (Ky. App. 1997), wherein the trial court credited the SSI benefits a child received for his own disability against the support ordered for the father to pay to the mother, resulting in an award of no child support. Mark notes that this Court reversed, stating:
However, the child support guidelines in KRS Chapter 403 are presumed to be correct unless rebutted. In this case, the guidelines must be followed unless theBarker at 897.
commissioner finds that they have been rebutted to the extent that their application would be unjust or inappropriate. The court should be mindful, however, that there is nothing inherently unjust or inappropriate about making a father support his child, if he is able to do so, before looking to a government welfare program that is intended to supplement the resources of the needy. Absent a finding supported by substantial evidence on the record that application of the guidelines would be unjust and inappropriate, Tony owes David child support in accordance with the support guidelines in KRS 403.212.
Mark argues that Sheila has failed to present any testimony or evidence to indicate why a deviation should be made from the Kentucky Child Support Guidelines, and that child support was imputed to Sheila on the basis of her income as it was presented to the court. Further, Mark asserts that Sheila only now makes this argument for the first time on appeal, and that she had an obligation to present some type of evidence and argument for a deviation from the Kentucky Child Support Guidelines to the court below, and did not do so.
Concerning this issue, we believe that Sheila's failure to preserve the issue, or to direct our attention to where it may have been preserved, is fatal to her appeal. Our courts have clearly held that a new theory of error cannot be raised for the first time on appeal. Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). Moreover, we believe that the case of Barker v. Hill, 949 S.W.2d 896, 897 (Ky. App. 1997), speaks clearly to this issue. In Barker, as in the case sub judice, the divorced parents had a minor child who received SSI disability income for his own personal disability. There was a dispute between the parents as to whether the benefits received could be credited against a child support obligation. Upon review of the issue, the Court found that:
KRS 403.212 delineates the appropriate amount of child support based on the combined monthly adjusted parental gross income. The child support obligation under KRS 403.212 is presumed to be correct. KRS 403.211(2) provides:
[T]he child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
More specifically, to deviate from the guidelines, KRS 403.211(3) requires:
A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:Barker at 897.
....
(d) The independent financial resources, if any, of the child or children;
In this case the commissioner did not make any finding on the record that the application of the guidelines would be unjust or inappropriate. The commissioner also did not investigate or provide facts that would support a finding that the guidelines, if applied, would be unjust or inappropriate. For instance, we do not know if David is being adequately provided for or if David incurs additional living and medical expenses which require both parental support and government assistance.
Sub judice, had Sheila raised this issue below, and presented evidence, testimony, or argument on this issue, a deviation from the standard Kentucky Child Support Guidelines may have been warranted. As she did not do so, the court appropriately calculated support pursuant to KRS 403.211 and KRS 403.212. Accordingly, we affirm, and turn to Sheila's second basis for appeal.
As her second basis for appeal, Sheila argues that the trial court abused its discretion by designating Mark as primary residential custodian. She bases this argument on the assertions that: (1) The trial court's use of notes of witness testimony from the unrecorded temporary custody hearing as a substitute for evidence at the final hearing was hearsay, not legal evidence of record, and reversible error; (2) The trial court's findings that Sheila was abused as a teen by J.P. was not supported by substantial evidence; (3) The trial court's use of facts and the outcome of the prior domestic violence proceeding without prior notice of intent to use same in the final custody decision was error; and (4) Ordering Sheila to undergo two mental health evaluations and not ordering Mark to undergo any was an abuse of discretion. We expand upon these arguments in turn.
First, Sheila asserts that the trial court abused its discretion by using notes of witness testimony from the unrecorded temporary custody hearing as a substitute for evidence at the final hearing. Sheila asserts that a party has a constitutional right to hear all of the evidence offered in a child custody case, and that if the record of such interview must be made so that the parties can subsequently argue the accuracy of the statements and facts given in the interview. Sheila argues that sub judice, she was not afforded such an opportunity even though it was a hearing that was held and not an in camera interview, there were various witnesses who testified at the temporary hearing, whose interviews were not recorded, because the hearing ultimately had no audio. Sheila argues that in using its notes from the temporary hearing, the family court was relying upon hearsay, and that the exception set forth in KRE 804(b)(1) does not apply, because there was no reasonable way that she could have prepared. Sheila asserts that the court below often seemed confused or uncertain as to what the notes from the temporary hearing indicated, and that the notes were therefore not an accurate record. Sheila argues that this ultimately deprived her of the opportunity to have a fair hearing, and was a violation of her due process rights under the Fourteenth Amendment.
KRE 804(b)(1) provides that: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
As her second basis for asserting that the trial court abused its discretion by naming Mark primary residential custodian, Sheila argues that its finding that she was abused by J.P. as a teen was not supported by substantial evidence. Sheila asserts that in making the finding that J.P. sexually abused her, and in ordering that Sheila not have contact with the child when J.P. was around, the court relied upon the unrecorded testimony of Angela Wood given during the temporary custody hearing. Sheila asserts that there was no corroborating evidence to support the finding that J.P. had sexually abused her, nor were the parties engaged in an extramarital affair. Sheila asserts that in fact, she repeatedly denied that J.P. was the person who sexually abused her, and that another individual was in fact the individual who had done so.
As her third basis for asserting that the trial court abused its discretion in naming Mark as primary residential custodian, Sheila argues that the court's use of facts and outcome of the prior domestic violence proceeding without prior notice of intent to use same in the final custody decision was in error. Concerning the prior allegations of domestic violence, Sheila notes that no finding of abuse was made, and that the domestic violence petition was dismissed. She asserts that the dismissed petition had nothing to do with the issues of custody, visitation, and support at issues between the parties. Sheila argues that even assuming the court correctly considered what was presented at the domestic violence hearing, KRE 201(e) requires a court to give the parties notice of its intention to take judicial notice and to allow an opportunity to be heard concerning same. Sheila argues that the court did not comply with this rule, and that accordingly the judgment should be reversed.
As her final basis for arguing that the trial court abused its discretion in naming Mark as primary residential custodian, Sheila argues that the court's decision to order her to undergo two mental health evaluations while Mark was not ordered to undergo any was an abuse of discretion. Sheila asserts that it was never disputed that she had mental health issues which were controlled by medication, but notes that Mark's mental health records indicate that he presented with "psychosis," "emotional disturbance," and "disturbed thinking," in addition to anxiety and depression shortly before the divorce was filed, for which he was prescribed three different medications, including Paxil, Abilify, and Sertriline, which he ultimately stopped taking on his own. She also notes indications in Mark's medical records concerning "anger," and "violent outbursts," and asserts that the court should have erred on the side of caution by ordering both parties to undergo mental health evaluations. Sheila asserts that in not doing so, the court acted arbitrarily and without due consideration for the best interest of the child.
In response to the various arguments made by Sheila concerning whether the court abused its discretion in naming Mark primary residential custodian, Mark asserts that the trial court's order was supported by the substantial weight of the evidence, serves the best interest of the minor child, and should not be reversed. While Mark acknowledges that the audio recording equipment malfunctioned during the temporary hearing, he asserts that the trial court cured this defect by scheduling a twelve-hour hearing to occur over a two-day period on November 9 and 10, 2011, to allow sufficient time to address all of Sheila and Mark's issues. Mark notes that during the course of the trial, the testimony of approximately 18 witnesses was presented, and that almost all of the witnesses who testified at the temporary hearing were called to testify during the course of the final hearing. Mark also notes that during the course of the hearing on November 9, 2011, the trial court stated its intention to read its notes into the record, and did so. At the request of Sheila's counsel, the court scheduled a third day of testimony to allow for one witness, Angela Wood, who was not available for the November 2011, dates due to scheduling and time constraints. The court indicated that it might subpoena Wood for an additional trial date, and indeed, Sheila's counsel stated on the record that if Wood's testimony was needed, she would subpoena Wood to appear on a date to be scheduled in the future. Mark notes that on several occasions, the court indicated its amenability to Wood being subpoenaed, should Sheila's counsel so choose. Mark notes that Sheila ultimately did not subpoena Wood to testify a second time below.
These witnesses included Andrea Nelson, Jennifer Polo, Nancy Paschall, Sheila Spindleman, Kathy Kerr, Wanda Spindleman, Davalene Fulks, and Mark Spindleman. The parties also stipulated to the testimony of the two day-care workers, Sara Girth, and Linda Kilpatrick. The only witness not available to testify at trial was Angela Wood.
Mark notes that on November 19, 2011, the court stated, "Here's what I am going to do. I'm going to read my notes from that hearing that I took, I know you weren't prepared to do it that way, but I'll give you, if you want to call these people in to re-question them I'll give you extra time to do that, but I don't see any sense in going through putting on what I've already heard and I have notes from, but if you would like to call them to contest any of this I will give you time to do that. You can subpoena them, have them come in. But this is my understanding of what they testified to in open court, with both attorneys, that I'm going to sue as part of my consideration for the final hearing." (VR 2, 11/09/11, 3:45:56-3:46:26); and again, "If you want to contest it, I'll give you time to call that person ... tell me tomorrow whether you want to subpoena these people and I'll give you extra time ..." (VR 2, 3:49:02-3:49:36); and again on November 10, 2011, stating, "I read my notes from the temporary hearing, I had several hours of testimony of several different witnesses but no audio but I did take notes with in regard to some of the things they testified to and have read what my notes reflect and I am giving you all an opportunity to rebut that or call witnesses if you need to."
Further, Mark asserts that the statements made at the temporary hearing and recorded via the notes of the court were consistent and were duplicated by at least three witnesses at the temporary hearing who testified at the trial of this matter on February 2, 2012. Thus, Mark asserts that by holding three full days full of testimony and by hearing the arguments of the parties on the issues, the court cured the audio defect which occurred during the temporary hearing.
Mark asserts that these witnesses were himself, Kathy Kerr, and Wanda Spindleman, who cumulatively testified to the fact that Sheila had told them she had mind-reading abilities, used spells, and actively had contact with J.P., whom Sheila stated had molested her as a teenager.
Alternatively, Mark argues that even if the court were to find that the trial court made an error in relying upon its notes concerning Wood's testimony, this error alone does not support a finding of abuse of discretion in light of the substantial weight of the other evidence presented during the course of the trial.
Concerning the court's findings regarding J.P., Mark argues that they were supported by substantial evidence. Mark notes that the trial court specifically found that, "Sheila was molested as a teenager and has told several individuals throughout the years that the individual who molested her was J.P." Sheila denies that J.P. molested her, and now sees J.P. two to three times a week. Mark asserts that he never intended to prove that Sheila was abused as a teenager by J.P., but rather to submit evidence that Sheila told several individuals that this was the case. Mark asserts that witnesses testified to this fact on the record during the temporary hearing, and again at the trial of this matter. Additionally, Mark asserts that the court had a duty, pursuant to KRS 403.270(2)(e) to consider "any other person who may significantly affect the child's best interest," and notes that despite the temporary court order which directed that the child not be in the presence of J.P. at any time, Sheila allowed E.S. to do so in violation of the order. Thus, Mark argues that the court was within its discretion to find as it did, and that its findings were supported by substantial evidence.
Specifically, Mark refers to himself, Wanda Spindleman, and Kathy Kerr.
Concerning the court's use of information from the previous domestic violence proceeding, Mark argues that this is clearly allowed by Kentucky law, and specifically by KRS 403.270(2)(f), which provides that, "Information, records, and evidence of domestic violence as defined in KRS 403.720" is a relevant factor before the trial court in a determination of custody. Moreover, Mark asserts that Sheila, through her own testimony, presented this issue at trial, and that her own previous statements were used as prior inconsistent statements for impeachment purposes pursuant to KRE 801A(a)(1), and for the purpose of evaluating the credibility of the witness. Mark asserts that the facts concerning the alleged assault were testified to in court before a judge, with both parties and their counsel present, in a hearing during which cross-examination of the witnesses occurred. Thus, he asserts that the evidence was properly submitted.
Finally, concerning Sheila's argument that the court abused its discretion by failing to order Mark to undergo a psychological evaluation, Mark argues that Sheila's mental health has always been at issue, and specifically notes her long-term mental health history, her documented issues in caring for E.S. as a newborn, and the prior involvement of social services. Further, Mark notes that Sheila never requested that he undergo a mental health evaluation during the course of the litigation below, and indeed, did not raise the issue until the final day of trial, after obtaining Mark's medical records. Accordingly, Mark asserts that the court did not abuse its discretion by not ordering that he undergo a mental health evaluation.
In addressing the issue of whether the court abused its discretion in naming Mark as primary residential custodian, we note that this Court reviews the trial court's factual findings for clear error. Reichle v. Reichle, 719 S.W.2d 442 (Ky. App. 1986). The court's findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. CR 52.01. A factual finding is not clearly erroneous if it is supported by substantial evidence. Id. Substantial evidence is that which is of substance and relevant consequence sufficient enough to induce conviction in the minds of reasonable people. Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002)(overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). Concerning custody determinations in particular, we will not disturb the ruling of the trial court absent an abuse of discretion. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). A family court abuses its discretion only when it issues a ruling which is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Aesthetics in Jewelry, Inc. v. Brown, ex. rel. coexecutors, 339 S.W.3d 489, 496 (Ky. App. 2011).
Certainly, KRS 403.270(5) authorizes the trial court to grant joint custody if and when that designation is in the child's best interest. Further, KRS 403.270(2) requires a trial court to determine custody in accordance with the child's best interest, giving equal consideration to each parent. Trial courts are vested with broad discretion in matters concerning custody and visitation. See Futrell v. Futrell, 346 S.W.2d 39 (Ky. App. 1961); Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000).
In reviewing this matter pursuant to those standards, we cannot find that the court abused its discretion in naming Mark as the primary residential custodian of E.S. A review of the record reveals that the court conducted an extensive three-day hearing in this matter, in which it heard from numerous witnesses, and reviewed ample evidence submitted by both parties. The judgment that it ultimately entered on February 13, 2012, was based upon numerous factual findings, all of which the court based upon the evidence and testimony submitted, and upon its determination as to the credibility of same. These findings were well within the court's discretion, and were not clearly erroneous. Accordingly, we are compelled to affirm.
In affirming, we briefly address various arguments raised by Sheila, beginning with her assertion that the trial court's use of notes of witness testimony from the unrecorded temporary custody hearing as a substitute for evidence at the final hearing was hearsay, not legal evidence of record, and reversible error. Upon review, we are in agreement with Mark that the court took adequate action to remedy the difficulties caused by the defective audio equipment during the course of the temporary hearing.
In addressing this issue, we turn first to CR 75.13, which provides that:
(1)In the event no stenographic or electronic record of the evidence or proceedings at a hearing or trial was made or, if so, cannot be transcribed or are not clearly understandable from the tape or recording, the appellant may prepare a narrative statement thereof from the best available means, including his/her recollection, for use instead of a transcript or for use as a supplement to or in lieu of an insufficient electronic recording. This statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service upon him/her. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval, and as settled and approved shall be included in the record on appeal.
(2) By agreement of the parties a narrative statement of all or any part of the evidence or other proceedings at a hearing or trial may be substituted for or used in lieu of a stenographic transcript or an electronic recording.
While Sheila could certainly have availed herself of the remedy provided by our civil rules, she did not choose to do so. As this Court previously held in Harper v. Commonwealth, 371 S.W.3d 763 (Ky. App. 2011):
A litigant must follow the procedure of supplying a narrative statement, in the event of a deficiency, in order for a reviewing court to determine whether he has been prejudiced. Id. If a party does not avail himself of that remedy, the result is that "he arrives in this court without a record of what he claims to have been the evidence."Harper at 768. (Internal citations omitted).
Sheila did not choose to avail herself of the remedy provided in CR 75.13. Instead, the court heard, over the course of three days, testimony from almost all witnesses who testified during the temporary hearing. Moreover, the court indicated its willingness to allow Sheila to subpoena Wood to testify, if she so chose. Again, Sheila chose not to do so.
In light of these factors, we believe the court made the appropriate determination to rely upon its notes insofar as Wood's testimony was concerned, and we affirm. Alternatively, in light of the fact that the testimony which the court attributed to Wood was also confirmed by the testimony of other individuals who were available during the course of the final hearing, we are persuaded that error, even if it had occurred, was harmless.
Concerning Sheila's claim that the trial court's finding that she was abused as a teen by J.P. was not supported by substantial evidence, again, we disagree. A review of the record indicates that various witnesses testified as to Sheila's previous allegations in their presence that J.P. had molested her as a teenager. While Sheila argues that the court erred in relying upon Wood's testimony in reaching this conclusion, we note that Wood was not the only individual to have testified concerning J.P. We believe the court was within its discretion to rely upon the evidence and testimony submitted in finding as it did, and to judge the credibility of the witnesses before it. Accordingly, we affirm.
Sheila also claimed that the trial court's use of facts and the outcome of the prior domestic violence proceeding without prior notice of intent to use same in the final custody decision was error. Again, we disagree. Clearly, KRS 403.270(2)(f) provides that information, records, and evidence of domestic violence as defined in KRS 403.720 may be considered by the court in determining custody. Moreover, Sheila, through her own testimony, presented this issue at trial and her own previous statements were used as prior inconsistent statements for impeachment purposes pursuant to KRE 801A(a)(1), and for the purpose of evaluating the credibility of the witness. Finally, as noted by Mark in his arguments to this Court, the facts concerning the alleged assault were testified to in court before a judge, with both parties and their counsel present, in a hearing during which cross-examination of the witnesses occurred. We affirm.
KRS 403.270(1) provides that: "Domestic violence and abuse" means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple;
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Finally, we address Sheila's argument that the court erred in ordering that she undergo two mental health evaluations while not ordering Mark to undergo any. Having reviewed the record, we do not find the court's decision in this regard to be in error. Clearly, the evidence and testimony presented below indicated that Sheila has an extensive mental health history, dating back at least 19 years, which is well-documented, and for which she takes several medications. By contrast, there was no evidence presented concerning Mark's mental health until the last day of trial, on February 2, 2012, at which time, evidence during the time of the parties' divorce. Pursuant to KRS 403.290(2), it was within the discretion of the court to seek the advice of professional personnel, and this court is unaware of any statutory provision or precedent mandating the court to order a mental health evaluation for both parties, simply because it believes it to be merited for one.
Wherefore, for the foregoing reasons, we hereby affirm the February 13, 2012, findings of fact, conclusions, and judgment of the Calloway Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Lisa A. DeRenard
Benton, Kentucky
BRIEF FOR APPELLEE: Amy R. Roos
Murray, Kentucky