Opinion
NO. 2016-CA-001045-ME
05-19-2017
ARLIN BRADLEY SPIVEY APPELLANT v. TOSHA LAVOUGHN SPIVEY APPELLEE
BRIEF FOR APPELLANT: Eric E. Ashley Louisville, Kentucky BRIEF FOR APPELLEE: Jonathan Scott Wilder Hazard, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PERRY CIRCUIT COURT
HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 11-CI-00437 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: Arlin Spivey petitioned the Perry Circuit Court to become his children's primary residential custodian. The circuit court determined that arrangement would not serve his children's best interests and denied the petition. After review, we affirm the circuit court's decision to deny the petition but vacate a portion of the court's order which left the nature of the current timesharing arrangement ambiguous.
I. BACKGROUND
Arlin and Tosha Spivey married and later divorced. Following their divorce, the former couple shared custody of their two minor children. Tosha served as the children's primary residential custodian. Arlin filed a motion to change that arrangement in August 2015. He wanted to be the children's primary residential custodian. Arlin had recently remarried and had ostensibly found gainful employment. Evidently, he felt his household offered the children more stability than their current living situation. The circuit court ordered a hearing on the motion.
Before a domestic relations commissioner (DRC), Arlin testified that Tosha's household was no longer the best environment for the children because, among other things, the children live with Tosha, her boyfriend, and four of Tosha's other children in a three-bedroom apartment. Arlin explained that his new home in Cincinnati afforded the children a better overall lifestyle, with more physical space, better education opportunities, a wider array of extra-curricular activities, and less competition, so to speak, for parental attention.
In response, Tosha presented evidence that the children were doing well in school and had developed a strong, positive relationship with their half-siblings. Tosha also explained that the children had adjusted well to their community, and despite a combined 12 school absences in the last two years, had a respectable school attendance record overall.
After considering this evidence and the DRC's findings in light of the statutory factors provided in Kentucky Revised Statutes (KRS) 403.270(2), the circuit court concluded that it was in the children's bests interests for Tosha to remain the primary residential custodian. However, by incorporating the DRC's findings into the final order, the circuit court also modified the timesharing arrangement to increase Arlin's timesharing "to every weekend, every spring break, every fall break, plus summer vacation with the exception of one (1) week as set forth above so long as every other weekend is financially feasible and doesn't represent undue burden on the children." (emphasis added). This appeal followed.
I. STANDARD OF REVIEW
A trial court's assessment of a child's best interests is reviewed in the following manner: factual findings are reviewed for clear error, and decisions based on those findings are reviewed for an abuse of discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009).
II. DISCUSSION
On appeal, Arlin disputes the circuit court's application of the facts to the statutory best-interest factors listed in KRS 403.270(2). Arlin further asserts that the circuit court erred by conditioning his increased timesharing on its financial feasibility and related "burden" on the children. For the following reasons, the circuit court properly applied the best-interest factors but improperly conditioned the new timesharing arrangement.
Although this seems to be a point of confusion for the parties, a joint custodian desirous of becoming a primary residential custodian seeks a timesharing modification under KRS 403.320, and not a custody modification. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). The timesharing modification must be in child's best interest. KRS 403.320(3). The operative factors for appraising the timesharing modification are provided in KRS 403.270. They include the following:
Kentucky Revised Statutes. --------
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved; [and]
Importantly, the relative weight given to these factors by the trial court receives "a great deal of deference" since "the trial court was in the best position to resolve the conflicting evidence" presented. Frances v. Frances, 266 S.W.3d 754, 758 (Ky. 2008).
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720[.]
Here, the circuit court properly applied the statutory factors in reaching its ultimate conclusion. The circuit court addressed the factors almost in a checklist-like fashion and found that continuing to live with their mother suits the children well enough to serve their best interests. Specifically, after recognizing the parents' obvious difference of opinion as to where the children should live, the circuit court accepted Tosha's testimony that the children wished to stay in her home. The circuit court also determined that the children have a stronger bond with the members of their current household and that they were doing well in their current surroundings based on their existing relationships and academic performance, respectively. Finally, the circuit court noted that neither party has a significant mental health or domestic violence concern. As these findings were supported by substantial evidence, there was no abuse of discretion.
The same cannot be said, however, with respect to Arlin's increased timesharing. By conditioning the timesharing modification both on its financial feasibility and its "burden" on the children, the circuit court set an arbitrary limit on Arlin's parental rights in violation of KRS 403.320. See Drury v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000)(timesharing schedule should allow parents as much involvement as possible under the circumstances). The circuit court did not explain why it placed these conditions on the visitation, nor did it provide any specific guidance as to what circumstances would prevent Arlin from being able to see his children in manner provided by the order. Accordingly, the modification was improper.
In sum, we affirm the Perry Circuit Court's decision as it relates to Tosha remaining the primary residential custodian and vacate the decision as it relates to Arlin's increased timesharing. On this latter issue, we reverse and remand.
ALL CONCUR. BRIEF FOR APPELLANT: Eric E. Ashley
Louisville, Kentucky BRIEF FOR APPELLEE: Jonathan Scott Wilder
Hazard, Kentucky