Opinion
NO. 2011-CA-001913-MR NO. 2011-CA-001914-MR
05-23-2014
RICHARD L. THACKER APPELLANT/CROSS-APPELLEE v. CHRISTINA THACKER APPELLEE/CROSS-APPELLANT
BRIEFS FOR APPELLANT/ CROSS-APPELLEE: Tracy D. Frye Michael A. Frye Russell, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLANT: Brian Dufresne Christina Thacker Ashland, Kentucky
NOT TO BE PUBLISHED
APPEAL AND CROSS-APPEAL FROM GREENUP CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 06-CI-00674
OPINION
AFFIRMING APPEAL NO. 2011-CA-001913-MR
AND CROSS-APPEAL NO. 2011-CA-001914-MR
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Richard L. Thacker brings Appeal No. 2011-CA-001913-MR from an August 31, 2011, order of the Greenup Circuit Court, Family Court Division, and Christina Thacker brings Cross-Appeal No. 2011-CA-001914-MR from the same order modifying the parties' time-sharing arrangement with their minor daughter, R.T., and denying Christina's motion to hold Richard in contempt for failing to reimburse her for maintenance on her vehicle. We affirm both Appeal No. 2011-CA-001913-MR and Cross-Appeal No. 2011-CA-001914-MR.
The parties were married on March 22, 1997. One child, R.T., was born of the marriage on September 11, 1998. The parties' marriage was dissolved by a decree of dissolution entered in the Greenup Circuit Court, Family Court Division, on March 4, 2009. The family court incorporated the parties' separation agreement into the decree. Relevant to this appeal, the separation agreement provided: "the parties shall have the joint care, custody, and control of their infant daughter and [Christina] shall have physical custody, with [Richard] to have visitation" according to the local guidelines. And, Richard also agreed to be responsible for the maintenance and upkeep of Christina's primary vehicle "so long as the parties' child is still a minor."
On May 16, 2011, Christina filed a request for production of documents seeking a copy of Richard's 2010 federal tax returns, a copy of his payroll checks, and a verification of his income from retirement accounts. Thereafter, Richard filed a motion to modify custody and/or time-sharing. Christina then filed a motion to show cause against Richard for failing to reimburse her for repairs to her vehicle. Christina also filed a motion to compel Richard to produce the aforementioned documents. A hearing was held on all pending motions on August 29, 2011.
By order entered August 31, 2011, the family court did not modify the award of joint custody but did modify the time-sharing arrangement to provide that R.T. would alternate weeks between her parents. In other words, R.T. would spend one week with Christina and the next week with Richard. The family court opined that based upon the circumstances presented, alternating weekly time-sharing would be in R.T.'s best interests. The family court declined to hold Richard in contempt of court for not reimbursing Christina for repairs to her vehicle and terminated Richard's obligation to maintain Christina's vehicle. These appeals follow.
We begin by noting that the Kentucky Supreme Court has held that post-decree motions related to modification of time-sharing in domestic cases are deemed actions tried without a jury. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). Thus, our standard of review is governed by Kentucky Rules of Civil Procedure (CR) 52.01. CR 52.01 provides that the family court's "[f]indings 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." This Court will not disturb those findings unless they are clearly erroneous. Findings of fact are not clearly erroneous if supported by substantial evidence. Ky. State Racing Comm'n v. Fuller,_ 481 S.W.2d 298 (Ky. 1972). Our review proceeds accordingly.
Appeal No. 2011-CA-001913-MR
Richard contends that the family court erred in its modification of the parties' time-sharing arrangement. Richard asserts that he should have been designated the primary residential custodian and that Christina should have been granted only standard visitation.
The modification of time-sharing/visitation is controlled by Kentucky Revised Statutes (KRS) 403.320(3) and provides that a court may modify timesharing "whenever modification would serve the best interests of the child." Thus, a parent seeking to modify must only demonstrate that modification of the timesharing arrangement is in the child's best interests.
In the case sub judice, the family court heard extensive testimony relevant to R.T.'s best interest. The family court heard from several witnesses, including both parties and R.T. The court ultimately concluded that it was in R.T.'s best interest to modify the parties time-sharing arrangement so that R.T. would divide her time equally between both parents. In support thereof, the family court found that Richard resided with his mother and his girlfriend and that R.T. had her own bedroom there. Christina, on the other hand, resided with her boyfriend and his two children. Christina's boyfriend was apparently awaiting trial for possession or trafficking of heroin and was wearing an ankle monitor. The court further found that R.T. wanted to live with her father and that R.T. stated that she got along well with her father's girlfriend.
Considering the evidence presented at the hearing and relied upon by the family court, we cannot conclude that the family court abused its discretion or that its findings of facts were clearly erroneous. The evidence produced was sufficient to support the family court's finding that alternating weeks between
Richard and Christina was in R.T.'s best interest. Therefore, we hold that the family court did not err by modifying the visitation/time-sharing arrangement of the parties to provide for an equal sharing of time with R.T.; thus, the modification will not be disturbed on appeal.
Cross-Appeal No. 2011-CA-001914-MR
Christina argues that the family court's decision to terminate Richard's obligation to pay maintenance and the upkeep on her vehicle was an abuse of discretion. Christina contends the separation agreement specifically provided that Richard would maintain Christina's vehicle "so long as the parties' child is still a minor" and that such term was not unconscionable. Consequently, pursuant to KRS 403.180, Christina maintained the agreement could not be modified, and the court erred by doing so. We disagree.
KRS 403.180 provides in relevant part:
(2) In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
It is well-established that a separation agreement "may later be modified if due to a change in circumstances the agreement has become unconscionable." Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007), citing Peterson v. Peterson, 583 S.W.2d 707 (Ky. App. 1979).
As Christina and Richard now equally share physical custody of R.T., the mandate that Richard continue to maintain Christina's vehicle was rendered unconscionable within the meaning of KRS 403.180(2). Thus, we do not believe the family court erred.
For the foregoing reasons, the order of the Greenup Circuit Court, Family Court Division, is affirmed in Appeal No. 2011-CA-001913-MR and Cross-Appeal No. 2011-CA-001914-MR.
DIXON, JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, DISSENTING: I respectfully dissent. I do understand that deference is given to our trial courts in such matters; however, I believe that the evidence presented compels reversal on the appeal. I would affirm the cross-appeal.
Specifically the facts presented to the trial court were that Christina's boyfriend, who resided in her home, was currently awaiting trial for either trafficking or possession of heroin and wore an ankle monitor as a form of pre-trial release awaiting trial. Indeed, the court expressed its concern in its order with respect to Mr. Bryant residing with Christina. Such concern cannot go unheeded in determining the best interests of the child. See Krug v. Krug, 647 S.W.2d 790 (Ky. 1983) (discussing an unwholesome environment, a parent co-habiting with a convicted felon, and the best interest of the child).
Certainly, anyone charged is innocent until found guilty and we do not want to stigmatize our populace on mere indictment; however, this fact combined with R.T.'s desire to reside with her father, Richard, a fit custodian, does support a determination that the best interest of the child would be served by having R.T. reside with Richard. As such, I would reverse the time-sharing portion of the order and remand this matter for further proceedings. BRIEFS FOR APPELLANT/
CROSS-APPELLEE:
Tracy D. Frye
Michael A. Frye
Russell, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLANT:
Brian Dufresne
Christina Thacker
Ashland, Kentucky