Rebecca Josephine Burton v. Nicholas Martin Burton

No. 2011-CA-000573-ME

Published: Opinion Affirming

County: Lyon

Rebecca Burton appeals from an order of Lyon Circuit Court modifying parenting time in favor of Nicholas Burton.

The parties are parents of two children, Liam and Megan.  When they were divorced in 2006, they agreed to joint custody with Rebecca as the primary physical custodian. After the divorce, Rebecca attended school and worked at Dress Barn, and within a few months, she and the children moved in with her boyfriend, James, to which Nicholas voiced no objection.  Immediately after the divorce, Nicholas had limited involvement with the children and Rebecca requested the court to require him to spend more time with the children and assist with childcare while she was in school or working.

In December 2010, Nicholas filed a motion for modification of custody and ex parte relief and alleged the children should be removed from Rebecca’s home because he believed their physical and emotional well-being was at risk.  His numerous complaints included allegations that another adult male had moved into Rebecca’s home, that the children were sent to school unclean, inappropriately dressed and without lunch money, that Megan showed no interest in the children’s school work, and Rebecca failed to provide proper medical, dental and vision care for them.  An ex parte order granted temporary sole custody to Nicholas who immediately removed the children from Rebecca’s care.  On Rebecca’s subsequent ex parte motion, the ex parte order of sole custody was vacated and a hearing was held.

Although James testified that his friend, Jay Harbin, had stayed in their home on several occasions, he had not moved in.  Harbin had a 15 year old drug conviction, however, and the trial court found that exposing the children to a convicted felon was not in their best interest.  James has three older children who visit on weekends, and the kids enjoy sleeping on couches and sleeping bags.  The trial court found this “obviously interrupted” the children’s routine.  Rebecca’s failure to sign Megan’s reading log consistently led the trial court to conclude that she did not read with Megan regularly.  Teachers did not attribute any improvement in Liam’s behavior to anything Nicholas was doing and further testified that the children were clean and appropriately dressed.  Rebecca presented evidence that she provided health and dental care for them.

Rebecca presented evidence that Nicholas was arrested for drunk driving in 2008 while on his way to pick up the children.  An officer responding to a complaint about his reckless driving from a passerby found Nicholas and his car on a stranger’s lawn.  He was unable to stand up, had urinated on his pants, and failed field sobriety tests.  He admitted having taken Ambien but failed to explain the erratic driving.  The trial court found this incident of “little probative value.”

After the hearing, the trial court entered findings of fact and conclusions of law and designated Nicholas as the primary residential parent, to which order Rebecca filed this appeal.

At the outset, the Court of Appeals reiterated the holding in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) that under a request for modification of parenting time, the trial court considers the best interest of the child as set forth in KRS 403.320.

When reviewing a custody decision, the test is whether the trial court’s findings were clearly erroneous or the decision was an abuse of discretion.  Findings of fact are only clearly erroneous when they are manifestly against the weight of the evidence.  The test is not whether the appellate court would have reached a different ruling, but whether the trial court’s ruling was clearly erroneous, whether it applied the current law, or whether it abused its discretion.

In this case, the CA could not say the TC’s findings of fact were clearly erroneous or that it applied incorrect law.  Based on those findings, the trial court decided Nicholas should be the primary residential parent.  The CA held that the trial court was in the best position to judge the credibility of the evidence and would not substitute its judgment on appeal.  Discerning no reversible error with the trial court’s findings of fact and conclusions of law, the Lyon Circuit Court Order was affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

K.H. v. Cabinet for Health & Family Services, Commonwealth of

Kentucky, in the Interest of K.H., NO. 2011-CA-000896-ME

and

K.H. v. Cabinet for Health & Family Services, Commonwealth of

Kentucky, in the Interest of A.B.H., No. 2011-CA-000897-ME

Published:  Opinion Reversing

County: Morgan

K.H. and A.H. are the parents of two children, ABH and KSH.  K.H.’s twelve-year old cousin, AKY, alleged that A.H. had touched her inappropriately and made inappropriate comments of a sexual nature while she was staying at K.H. and A.H.’s house.  The Cabinet and Kentucky State Police concluded, after an investigation, that the allegation was substantiated.

While the investigation was pending, K.H. signed a Prevention Plan recommended by the Cabinet which provided that she would not leave the children alone with A.H.  After the investigation was complete, however, she refused to sign an Aftercare Plan, which further restricted A.H.’s interactions with his children.

The Cabinet filed petitions alleging that K.H. and A.H. had neglected the children and that K.H.’s refusal to sign the Aftercare Plan exposed the children to a risk of sexual abuse from A.H. and amounted to neglect.  The trial court held an evidentiary hearing and concluded that the children were neglected based on the allegations in the Cabinet’s petition.  The court directed that the children remain in the home, but A.H. could not live in the home or have unsupervised contact with his children and K.H. filed this appeal.

The sole issue on appeal is whether the Cabinet presented sufficient evidence to establish that K.H. has neglected ABH and KSH.  The Cabinet does not allege that the children have been subjected to direct acts of abuse or neglect, but rather K.H.’s refusal to sign the Aftercare Plan amounts to neglect by exposing them to risk of sexual abuse from A.H.

The Court of Appeals noted that while it did not doubt the Cabinet’s good faith and desire to protect the children, it was concerned about the breadth of authority the Cabinet asserts.  There is no allegation that A.H. ever sexually abused his children, and K.H. had no legal obligation to sign the Aftercare Plan.  State intervention between parent and child must be done with utmost caution.

It is insufficient for the Cabinet to show that K.H. would be well-advised to agree to the Aftercare Plan.  The statutory definition requires a finding that K.H. created or allowed to be created a risk of sexual abuse to her children. A “substantiated” allegation is simply an administrative determination and is not binding upon the court and has no preclusive effect in subsequent proceedings.  The risk of harm must be more than a mere theoretical possibility, but rather an actual and reasonable potential for harm.

There is no allegation K.H. has done anything improper in the care of her children.  The Cabinet concedes she is a good and fit mother and the children are well cared for and have never been abused.  At worst, she chose to believe in the innocence of her husband. The trial court’s finding of neglect was clearly erroneous as it applied to K.H., and the orders of the Morgan Family Court finding ABH and KSH to be neglected are reversed insofar as they apply to K.H.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

K.H. v. Cabinet for Health and Family Services, evidence necessary to establish finding of neglect.

Digest to follow.

Crawford v. Crawford

No. 2010-CA-001576-MR

Published: Opinion Affirming in Part, Vacating in Part and Remanding

County: Boyd

Appellant appeals from the order of Boyd Circuit Court confirming the report and supplemental report of the Domestic Relations Commissioner.

The parties were married in 2001 and separated in 2006.  Appellant was sixty-eight years old and retired, and Appellee was sixty-four years old and self-employed.  Appellant moved the circuit court for $1500.00 per month in temporary maintenance, claiming her retirement insurance was $1,272.56 while Appellee received more than $3,000.00 per month from retirement in addition to income from his cabinet shop.  Appellant was granted temporary exclusive possession of the marital residence which she owned at the time of the marriage, and Appellee was ordered to pay the mortgage and utilities.

A bifurcated decree of dissolution was entered June 25, 2008, reserving issues concerning division of property.  After mediation failed, the matter was referred to the DRC for the final hearing which was held on April 22, 2010.  The DRC found that the increase in the mortgage on the marital residence was due to Appellant’s premarital debt and that Appellee had invested his premarital funds to improve the residence and to purchase an adjoining lot on which he constructed a cabinet shop.  The DRC found that Appellant should be responsible for the mortgage and Appellee was awarded the adjoining lot and cabinet shop.

Appellant filed exceptions to the DRC’s report which used the preponderance standard on the property issues when such decisions must be based on clear and convincing evidence.  The circuit court ordered the DRC to provide a supplemental report using the standard of clear and convincing evidence.  When the DRC’s original finding was confirmed in the supplemental report, the circuit court adopted the DRC’s findings and this appeal followed.

After discussing the standard of review set out in Hunter v. Hunter, 127 S.W. 3d, 656 (Ky. App. 2003), the Court of Appeals considered the issues.  Appellant contended that Appellee failed to sufficiently trace the funds used to purchase and build the cabinet shop and the DRC’s and trial court’s reliance on Appellee’s documents was erroneous.  The CA cited Sexton v. Sexton, 125 S.W.3d 258 (Ky.2004) which addressed the classification and division of property and determined that Appellee’s documents failed to adequately trace his contribution of premarital funds to this property.  The trial court’s order adopting the reports of the DRC was vacated and remanded for reclassification of the parties’ property as marital or nonmarital.

Because of the reassessment of the classification of property, the trial court must reconsider the division of marital property and debt as well as Appellant’s request for maintenance and attorney fees.  The trial court’s rejection of Appellant’s claim for reimbursement of medical bills for treatment of injuries sustained during an altercation with Appellee was upheld because she failed to provide documentary proof of her assertion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

A.M.W. v. Cabinet for Health and Family Services

No. 2011-CA-001441-ME

Published: Opinion and Order Dismissing

County:Pike

A.M.W. appealed from an Order terminating the Appellant’s parental rights. The Cabinet for Health and Family Services filed a motion to dismiss the appeal for failure to join the child as a party.

Appellant served a copy of the notice of appeal on the attorney for the Cabinet and the
circuit court judge, but failed to serve a copy on the guardian ad litem. Although the child at issue was included in the style of the notice of appeal, the child’s guardian ad litem was not
provided fair notice of the appeal and the child was not joined as a party.

In an action to terminate parental rights, the child’s interests are not the same as
the interest of the parents or the Cabinet.
When a parent appeals an order terminating parental rights, the child is
a principal focus of the appeal and must be made a party to protect his
interests. The child is a necessary and
indispensable party to an appeal from the termination of parental rights. Failure to join the child requires dismissal of the appeal.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Collett v. Dailey as Guardian of Hazel C. Collett

No. 2010-CA-002115-ME

County: Kenton

Published: Opinion affirming

James Collett, Jr. appealed from a domestic violence order entered August 18, 2010 in Kenton Circuit court, Family Division, finding that he perpetrated acts of domestic violence or abuse against his mother, Hazel C. Collett.

Dailey, as guardian for Hazel C. Collett, filed a domestic violence petition against James alleging verbal abuse, harassment, and interference with Hazel’s caregivers. After an evidentiary hearing, the court found that James had committed acts of domestic violence against Hazel. He was prohibited from contact or communication, directed to remain at least 500 feet away except under supervision, and ordered to vacate the residence he shared with his mother.

James contends on appeal that the family court’s finding of domestic abuse is not supported by a sufficient quantum of evidence.

Evidence presented at the hearing indicated that Hazel was 83 years old and had recently sustained a broken hip and required assisted care. James prevented caregivers from tending to his mother, giving her food and medications, and providing physical support and assistance. He removed night lights and placed throw rugs where Hazel needed to walk, even though she used a walker.

The Trial Court found that James’s actions interfered with Hazel having a secure and uninterrupted life and she was a victim of domestic violence. The Court of Appeals agreed, holding that considering the statutory definition of domestic violence and abuse and the evidence in this particular case, the Trial Court’s findings were not erroneous and the Kenton Circuit Court’s order is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Collett v. Dailey. In a 2-1 opinion DVO was affirmed against adult son who harassed and interfered with fragile, elderly mother's caregivers.

Burton v. Burton, modification of parenting time affirmed.

Digests to follow.