T.M. v. AND (2010)

T.F.M. (T.M.) appeals from amended findings of fact and conclusions of law entered by the Kenton Circuit Court in this dispute over parenting time and the mother's place of residence.   The order awarded joint custody of A.J.R. and E.T.R., two boys born in 2006 and 2007, respectively, to T.M. and to S. L.(D.) R., their biological father and mother.   T.M. maintains the court's order deprives him of meaningful involvement with his sons since the court designated S.L.(D.)R. as the primary residential custodian and she resides in Whitsett, North Carolina, with her husband, J.R., while T.M. resides with his wife, K.M., in Cincinnati, Ohio. T.M. suggests S.L.(D.)R. is really a resident of Northern Kentucky because she has numerous contacts to the area and she stayed with her mother in Latonia, (Kenton County) Kentucky, between 2004 and 2007 while commuting from North Carolina to work in a nearby hospital.   T.M. alleges the trial court's amended order is replete with errors, omissions and misstatements and awarding custody based on those flaws was not in the boys' best interests.   Having reviewed the evidence, the briefs and the applicable law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

T.M., a physician, had sexual relations with S.L.(D.)R., a respiratory therapist, in 2005 and 2006 while T.M. was married to a woman named K.M. and while S.L.(D.)R. believed ^Double she was married to a man named J.R. T.M.'s and S.L.(D.)R.'s sexual liaisons occurred in both Cincinnati and Northern Kentucky.   On February 25, 2006, S.L.(D.)R. gave birth to A.J.R. in Kenton County, Kentucky.   Both T.M. and J.R. believed they had fathered A.J.R. On April 10, 2007, S.L.(D.)R. gave birth to her second son, E.T.R., also in Kenton County.   T.M. believed he was E.T.R.'s father.

On May 18, 2007, T.M. petitioned the trial court to determine paternity and award joint custody of the boys.   Specifically, he requested genetic testing of himself, S.L.(D.)R. and the two boys.   If the testing showed T.M. to be the boys' father, he asked the court to award joint custody to himself and S.L.(D.) R. with equal time-sharing.   At a later date, T.M. asked in the alternative that he be awarded sole custody of the boys if S.L.(D.)R. continued living in North Carolina.

S.L.(D.)R. filed a verified response in June 2007 stating she did not oppose genetic testing but she did oppose equal time-sharing.   She also asked that if T.M. was determined to be the father of the boys that child support be awarded and made retroactive to the birth of A.J.R. and E.T.R. Within her response, S.L.(D.)R. acknowledged she and the two boys had lived in Latonia from October 2006 until April of 2007, when they returned to Whitsett, North Carolina.   Subsequent testing revealed T.M. to be the undisputed father of both boys.   Also in June of 2007, the trial court ordered the state registrar to issue new birth certificates for the boys listing T.M. as their father.

Following mediation, T.M. and S.L.(D.)R. executed an agreed order stating they would exercise joint custody over the boys.   The third week of each month, S.L. (D.)R. was to drive the boys from North Carolina to Cincinnati so they could be with T.M. from Wednesday evening until Monday morning.   S.L.(D.)R., who was now unemployed, moved for child support in August of 2007, stating the cost of a one-way trip from North Carolina to Cincinnati was $200.00.

Following a second mediation session in September 2007, it was agreed that T.M. owed a child support arrearage of $13,011.63 ^Double as of August 31, 2007, for which he was to make monthly payments of $500.00.   A child support order entered in April of 2008 stated T.M.'s annual income was $116,997.00 and he was to pay $1,844.00 in monthly child support retroactive to September 1, 2007.   T.M. moved the court to correct the order stating his monthly child support obligation should be only $1,500.00, a fact with which S.L.(D.)R. agreed.   The court acknowledged its mathematical error and entered an amended temporary order for child support requiring T.M. to pay $1,500.00 per month.

On August 7, 2008, the trial court entered a fifteen-page order containing findings of fact and conclusions of law.   Thereafter, T.M. moved for relief under Kentucky Rules of Civil Procedure (CR) 52.02, 52.03, 52.04, 58 and 77.04.   His motion requested specific findings of fact on various statements contained within the August 2008 order.

Those alleged errors were explored during a hearing on November 13, 2008, after which the court entered an amended order in which it found:  S.L.(D.)R. and T.M., though never married to one another, are the biological parents of A.J.R. and E.T.R.;   T.M. and his wife, K.M., live in Cincinnati and have no children together;  S.L.(D.)R. and her husband, J.R., are the parents of a baby girl born in July of 2008;  S.L.(D.)R. and J.R. have resided in North Carolina since 2004 as the result of J.R.'s job transfer;  S.L.(D.)R. stayed with her mother in Latonia while commuting from North Carolina to Kentucky between 2004 and 2007 for employment purposes;  T.M. is a self-employed physician and financially stable;  S.L.(D.)R. does not currently work outside the home, her husband is employed by the Dober Chemical Group in North Carolina;  S.L.(D.)R. and J.R. are financially stable;  and T.M. has admitted the boys “have never wanted for anything during their lives.”

The court further found:  S.L.(D.)R. returned to North Carolina with the boys on April 21, 2007;  T.M. knew S.L.(D.)R. was married and a resident of North Carolina when their relationship commenced;  T.M. “testified that when the relationship ended he knew [S.L.(D.)R.] likely would return to North Carolina to permanently reside there because she had two small children and no income”;  S.L.(D.)R. knew T.M. was married and lived in Ohio when their affair began;  T.M. has engaged in more than five affairs including four during his marriage to K.M.;   T.M.'s medical license was suspended due to an inappropriate sexual relationship with a patient, a fact known to S.L.(D.)R.;   T.M. believed he was A.J.R.'s father but his name did not appear on the child's birth certificate because S.L.(D.)R. was believed by all to be married to J.R.;   T.M. told S.L. (D.)R. he did not want his name on the birth certificate for public reasons;  prior to filing suit for the paternity determination, T.M. contacted A.J.R. just three times and provided only “menial” support for him in an amount far less than he would have been required to pay as court-ordered child support;  T.M.'s name was not listed on E.T.R.'s birth certificate because T.M. refused to sign a paternity affidavit;  T.M. claimed he did not try to establish paternity earlier because he did not know the boys were his although he believed he was A.J.R.'s father and his paternity of E.T.R. was confirmed shortly after that child's birth;  S.L.(D.)R. urged T.M. to be involved in the boys' lives, including attending A.J.R.'s first birthday party, but T.M. declined invitations to do so.   Furthermore, every three weeks, S.L.(D.)R. makes a 1,000-mile roundtrip with the boys to enable T.M. to have parenting time with his sons;  neither boy recovers well from the trip;  T.M. testified S.L.(D.)R. is a good mother;  T.M. and K.M. are loving when the boys are in their care;  the boys knew only S.L.(D.)R. and J.R. as their parents until July 2007 and bonded exclusively with them;  the boys “benefit from consistency, stability, continuity and individualized attention from their mother in North Carolina”;  S.L.(D.)R. has satisfied the boys' needs since birth;  and, the boys have developed a relationship with their stepsister and baby sister in North Carolina.   The court also found K.M. will be the boys' primary caregiver when they are in T.M.'s home as T.M. has testified “he cannot shut down [his medical practice] for long periods of time as it would greatly affect his income.   That is the reason [T.M.] believes [S.L.(D.)R.] should perform all necessary travel”;  and because the parties established their residences before the birth of either boy, the court lacked authority “to control where either party lives or works.”   Finally, the court believed allowing the boys to spend time with both their siblings and their father would be in their best interests.

The court drew a series of legal conclusions stating:  under KRS 403.270, a custody award “is to be made in the best interest of the child considering all relevant factors”;  T.M. and S.L.(D.)R. are to share joint legal custody of the boys with S.L.(D.)R. being designated as the primary residential custodian;  the boys will attend school in North Carolina;  until A.J.R. begins school, T.M. shall have one week of parenting time in Ohio each month;  upon reasonable notice, T.M. may have “other reasonable visitation” with the boys in North Carolina;  once A.J.R. is enrolled in school, the boys will spend the summer with T.M., except for ten days each at the beginning, middle and end of summer break which will be spent with S.L.(D.)R.;   T.M. is to have parenting time with the boys during all school breaks;  all holidays are to be divided between the parents;  expenses and responsibility for travel between North Carolina and Ohio are to be divided evenly between S.L.(D.)R. and T.M.;   J.R. is to provide health insurance for the boys;  T.M.'s child support obligation ^Double is addressed in a separate order entered January 6, 2009;  and the boys' last name shall be changed to “R.-M.”

While the bulk of T.M.'s motion to alter, amend or vacate the court's original findings of fact and conclusions of law was denied, the court did amend some portions of its original order.   It is from the amended order that T.M. appeals.   We affirm.

Location and control appear to be the main points of contention in this highly charged battle over parenting time and where the boys will live.   T.M. asserts S.L.(D.)R. resides in Northern Kentucky because she has familial and work connections to the area;  S.L.(D.)R. maintains she is a resident of Whitsett, North Carolina, where she and J.R. have leased a condominium since J.R. was transferred there by his employer in 2004.   T.M. wants S.L.(D.)R. and her family to move to Northern Kentucky so he can be near his young sons.   S.L.(D.) R. opposes relocation which means T.M. is separated from his sons by five hundred miles.   Because of his medical practice, T.M. claims he cannot spend hours on the road to be with his boys.   Instead, the boys must be brought to his home in Cincinnati where his wife, K.M. is the primary caregiver.   It is an understatement to say the physical distance between T.M.'s and S.L.(D.)R.'s homes has resulted in rancor about time-sharing, holidays, school, pediatricians, and gas bills.   More than once the trial court has questioned whether the parties can agree about anything.   The court has also commented on how much time and money has been devoted to minutiae when that money could fund the boys' college education.   As an example, T.M. took issue with the trial court's statement that T.M. would have parenting time with his boys for one week of each month and specified the week would commence at 6:00 p.m. on Monday and end the following Monday at 8:00 a.m. T.M. argued this was only six and one-half days rather than a full seven days.   We appreciate completeness and attention to detail, but arguing about every minor point is tiresome and dilutes the question at the heart of this appeal-what is in the best interests of two small boys.

On appeal, T.M. advances seven arguments:  (1) the amended findings of fact are final and appealable despite the absence of finality language as required by CR 54.02; ^Double (2) the trial court erred in finding T.M. was legally obligated to claim paternity and nurture two boys born to S.L.(D.)R. when all believed her to be married to J.R.;  (3) the court erroneously found S.L.(D.)R. and J.R. to have been North Carolina residents since 2004;  (4) the court erred in refusing to require S.L.(D.)R. to produce documents pertaining to her husband's business travel;  (5) the court erroneously applied KRS 403.270 by failing to consider all relevant statutory factors in awarding custody;  (6) the court based its custody award on outdated legal precedents and social standards;  and (7) the court imposed a custody arrangement that is not in the best interests of the boys.   Before addressing the merits of any claim, we are compelled to note that T.M.'s brief does not comply with CR 76.12(4)(c)(v), which states in relevant part that the brief for appellant shall “contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.”  Id.

In arguments one, two, three, four and seven, T.M. occasionally cites to findings of fact made by the trial court, portions of the written record, trial exhibits, and the video record.   However, he does not tell us whether and how he identified alleged errors to the trial court or urged the court to reach a different result.   We deem that failure a fatal flaw in T.M.'s request for review of those five claims.

T.M. made a meager attempt to comply with CR 76.12 in arguments five and six.   For those two allegations, he did cite to a point in the record-his CR 52.02 motion-at which he alleges the errors were preserved.   We have read the motion, but rather than persuasively stating grounds on which the trial court could reach a different result, the motion demands an explanation from the court of its actions and inaction.   The tenor of such a motion does not preserve an argument for appellate review.   As a court of review, we consider only those matters on which the trial court has had an opportunity to speak.  Commonwealth, Department of Highways v. Williams, 317 S.W.2d 482, 484 (Ky.1958).   That did not happen in this case, and it is not our task to practice a case for a litigant by surmising the argument T.M. would have made.

While S.L.(D.)R. does not argue noncompliance with CR 76.12, as a result of T.M.'s failure to adhere to the rule, we would be well within our authority to deny review.  Elwell v. Stone, 799 S.W.2d 46 (Ky.1990).   In the alternative, we could review the unpreserved allegations of error for manifest injustice instead of considering them on the merits.  Id.;  CR 61.02.   However, T.M. has not requested manifest injustice review.

Were this a concise record, we might be inclined to search for preservation on T.M.'s behalf, as we have done on occasion in other appeals.   However, the record in this case is not small.   It spans five videotapes and one CD, as well as four volumes of written record and numerous exhibits.   We will not meticulously review a record of this magnitude to do the job assigned by the rules and caselaw to appellate counsel.   Furthermore, because T.M. tried to follow the rule in arguments five and six, we must conclude he was aware of the requirement and assume his failure to heed CR 76.12 for the other five arguments means they were not preserved and therefore are not properly before us.   In light of the breadth of the record, and the teaching of Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976), which prevents us from allowing T.M. to “feed one can of worms to the trial judge and another to” us, we will address only issues five and six of this appeal.

LEGAL ANALYSIS

We begin with a general statement about the applicable standard of review.   In custody matters tried without a jury, 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;  Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.2002).   A factual finding supported by substantial evidence is not clearly erroneous.   Id. at 782.  “Substantial evidence” is “evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people.”  Id. When there is conflicting testimony, “we may not substitute our decision for the judgment of the trial court.”  R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky.App.1998).

Once a trial court has made the required findings of fact, it must then apply the law to those facts.   In this case, we will not disturb the trial court's award of joint custody unless we determine it constitutes an abuse of discretion.  Sherfey, 74 S.W.3d at 782-83.   Trial courts are vested with broad discretion in matters concerning custody and visitation.   See Futrell v. Futrell, 346 S.W.2d 39 (Ky.1961);  Drury v. Drury, 32 S.W.3d 521, 525 (Ky.App.2000).  “Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.”  Sherfey, 74 S.W.3d at 783.   While “[t]he exercise of discretion must be legally sound,” Id., in reviewing the decision of the circuit court, the test is not whether we, as an appellate court, would have decided the question differently, but whether the trial court's findings were clearly erroneous or constituted an abuse of discretion.  Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982).

The first argument we address is whether the trial court considered all the relevant statutory factors mentioned in KRS 403.270 and thereafter imposed a custody arrangement that was in the best interests of the boys.   The relevant statutory factors to be considered when awarding custody include the wishes of both the parents and the child;  the child's “interaction and interrelationship” with parents, siblings, and anyone else who “may significantly affect [his] best interests”;  “[t]he child's adjustment to his home, school, and community”;  and the health, both mental and physical, of all individuals involved.

The trial court's amended order demonstrates it was aware of and considered all the relevant statutory factors.   Specifically, the record establishes:  T.M. requested (and received) joint custody of the boys;  T.M. wanted S.L.(D.) R. to move from North Carolina to the Cincinnati area so T.M. would have greater access to his sons;  S.L.(D.)R. and her husband had been North Carolina residents since 2004, before the boys were born, and the court was without authority to order S.L.(D.)R. to move;  because of their extreme youth, the desires of the boys were not a significant factor in the custody determination;  until 2007, S.L.(D.)R. and J.R. were the only parents the boys had known and the quartet had bonded with one another as a family unit;  the boys have developed relationships with their older stepsister and with their younger sister born in 2008;  while not reflected in the court's amended order, the only health issue worth mentioning was J.R.'s bout with basal cell carcinoma for which even T.M. acknowledged J.R. had received appropriate treatment;  T.M. has made much about his busy schedule as a physician and as a result, the court recognized it was T.M.'s wife who would be the primary caregiver when the boys were in Ohio;  T.M. created the impression he and K.M. were actively participating in marriage counseling, but K.M. revealed they had not received counseling since January of 2008;  and finally, based upon a wealth of financial records, the court found that while S.L.(D.)R. was not currently working outside the home, she and J.R. were financially stable.

To prevail on this issue, T.M. need not convince us the trial court should, or even could, have reached a different conclusion.   Instead, he must convince us the trial court's award of joint custody was not supported by substantial evidence.   That will be a difficult task since T.M. does not argue the trial court's decision was unsupported by substantial evidence, only that there was proof supporting the award of another custody arrangement.   As stated earlier, it matters not that we may have ruled differently;  our only relevant inquiry is whether the trial court committed clear error or abused its discretion by reaching a decision that is unsupported by the record.  Cherry, 634 S.W.2d at 425.   Based upon the record presented to us, we are unwilling to hold that the trial court committed clear error or abused its discretion.

The second argument we address is an attack on five conclusions drawn by the trial court in which it stated a general legal principle supported by one or two case citations.   T.M.'s motion asked the court to make “specific and additional findings” explaining why a series of cases, some cited by the court and some not, did or did not apply to the circumstances presented by his case.   The better practice would have been for T.M. to state his analysis of how the cases applied or did not apply, thereby giving the trial court the benefit of his arguments, but he did not do so.

On appeal, T.M. argues the cases relied upon by the trial court are of no value today because they were decided thirty-eight to fifty-two years ago, they pertain to the tender years doctrine,^Double and they are factually distinct from his case.   We have read and considered each of the five cited cases.   They are not the most recent or the best statement of current family law, but none has been specifically overruled.   Further, while the cases reflect a prior preference in the law for very young children to be placed in the custody of the mother unless she was shown to be unfit, none of the cases was cited by the trial court for that specific principle.   The cases also stand for the proposition that the welfare of the child is of tantamount importance in any custody determination, Donoho v. Donoho, 357 S.W.2d 665 (Ky.1962), and harm can flow when a child is uprooted from familiar people and surroundings.  Somerville v. Somerville, 306 S.W.2d 301, 303 (Ky.1957).   Those principles remain valid today.   While the trial court could have cited more recent cases in support of its decision, we cannot say it committed clear error or abused its discretion by citing older cases.   After all, Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 176-77, 2 L.Ed. 60 (1803), was decided more than two centuries ago, but it remains good law today.   Furthermore, the trial court's amended order cited Hazel v. Wells, 918 S.W.2d 742 (Ky.App.1996), and Fenwick v. Fenwick, 114 S.W.2d 767 (Ky.2003), which are of more recent vintage.

T.M. argues the trial court should have followed a 2008 unpublished case instead of the published cases it cited.   While the unpublished case may have yielded a result that was more to T.M.'s liking, CR 76.28(4)(c) directs in part, “[o]pinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state[.]”  Thus, we cannot say the trial court erred in failing to reach a result achieved in an unpublished opinion.

For the foregoing reasons, the amended findings of fact and conclusions of law entered by the Kenton Circuit Court are affirmed.

ALL CONCUR.

NICKELL, JUDGE: