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Court of Appeals of Kentucky.


NO. 2010–CA–001983–ME

Decided: January 13, 2012

BEFORE:  CAPERTON, KELLER, AND LAMBERT, JUDGES. BRIEFS FOR APPELLANT:  Stephen C. Sanders Frankfort, Kentucky BRIEF FOR APPELLEE:  Jenny E. Scott Lexington, Kentucky



The Appellant, Pamela Marie Hanson (formerly Torson), appeals the September 3, 2010 findings of fact, conclusions of law, and final order of the Woodford Circuit Court modifying the existing custody order between the parties to name the Appellee, Martin Lamar Torson, as the primary residential custodian of the parties' two children.   Having reviewed the record, the arguments of the parties, and the applicable law, we affirm.

The parties were married for approximately sixteen years prior to their separation on April 14, 2005.   A final decree of dissolution of marriage was entered by the Woodford Circuit Court on March 8, 2006.   The parties have three children, two of whom, G.T., and A.T., are minors.   At the time of their divorce, the parties mediated the issue of custody, coming to an agreement which was adopted by the court.   In that agreement, the parties agreed to a joint custody and equal timesharing arrangement.   On September 18, 2007, as a result of Torson's relocation to Kansas, an agreed joint custody order was entered designating Hanson as the primary residential custodian of the children.

Subsequently, on July 2, 2010, Torson filed a verified motion requesting that the children be allowed to reside primarily with him.   As the basis for that motion, Torson argued that he should be named primary residential custodian for a number of reasons.   These included, but were not limited to:  Hanson's long history of keeping a “filthy” household;  recent flea, mice, and lice infestations in the household;  Hanson's habit of buying name-brand foods for herself but feeding generic poor-quality foods to her children;  continuing and escalating behavioral problems on the part of both children;  worsening grades on the part of G.T.;   recent food-hoarding behaviors exhibited by A.T.;   and an ongoing lack of attention towards the children on the part of Hanson, including frequently leaving them alone in the home until late at night and forcing them to cook their own meals. Double Torson also asserted that since the time of the 2007 custody agreement, Hanson has not maintained her part of the agreement, often unilaterally acting to prevent Torson from seeing the children or cutting their summer visitation short.   Torson asserts that for all of these reasons, he sought to become the primary residential custodian of the children as opposed to Hanson.

In his July 2, 2010 motion for modification of timesharing, Torson sought a modification of timesharing pursuant to Kentucky Revised Statutes (KRS) 403.320, and Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008).   While the court recognized, and repeatedly referred to the motion as one for a modification of timesharing, it nevertheless ultimately applied the more stringent “substantial change in circumstances” standard set forth in KRS 403.340 when making its determination.   As noted, on September 3, 2010, the court entered its findings of fact, conclusions of law, and final order naming Torson as the new primary residential custodian.   It is from that order that Hanson now appeals to this Court.

As her first basis for appeal, Hanson argues that the trial court erred in granting Torson's motion to modify timesharing without a showing of a substantial change of circumstances since the time of the parties' agreed order of September 18, 2007.   Hanson argues that KRS 403.340 provides that a custody decree may only be modified upon a showing of a change in circumstances such that “modification would serve the best interests of the child.”   She argues that the living conditions of which Torson complains have existed for some time, and are in fact the same as the conditions in which the children were living as long ago as 2005 and prior to the time the parties entered into their initial custody agreement. Double ,Double Further, Hanson disputes the court's finding that she failed to include Torson in decision making regarding the children, or that she unilaterally limited Torson's time with them.

Hanson also disputes the applicability of Pennington to this case, asserting that it sets forth a flexible standard for modification of custodial timesharing at the time of relocation of a parent, but does not provide free reign to reopen the matter of residential custody at any time.   She argues that, because Torson raises no issue of care of the children of which he was not aware at the time of the 2007 agreed order, he should thus be precluded from moving for a change in primary residential custodian at this time.   Hanson argues that the holding in Pennington should not supersede the principle of res judicata. Double

As her second basis for appeal, Hanson argues that the trial court's decision is not supported by substantial evidence and is contrary to the best interests of the children.   She asserts that a primary reason for the court's decision was that Hanson “has failed to resolve longstanding mental health issues and as a result have [sic] placed her children at risk of neglect.”   Hanson argues that the record is devoid of any evidence that she suffers from any mental health condition that would affect her ability to care for the children,Double or that her home suffers from mice, flea or lice infestations.   Further, she disputes the Court's finding that the children were not properly fed and that she limits access to their food.   Hanson argues that all of these findings are speculative and not supported by the record, and also disputes the Court's finding—that she has not pursued active employment—as unsupported by the record.   In keeping with this line of argument, Hanson asserts that the court ignored many witnesses Double who testified as to the positive relationship between Hanson and her children, and that the witnesses and evidence upon which the court made its findings were not competent.   Moreover, Hanson argues that all of the findings made by the court were made on the basis of information that was readily available in 2007, and which should have been raised at that time.   Torson disagrees.

In response to Hanson's arguments, Torson notes first that the court should have applied the best interest standard set forth in KRS 403.320 Double and Pennington to his motion to modify timesharing, as opposed to the more stringent standard of “substantial change in circumstances” applicable to motions to modify custody, and set forth in KRS 403.340. Double Nevertheless, Torson argues that the court's application of KRS 403.340 was harmless error since the standard of KRS 403.340 is more stringent than that set forth in KRS 403.320.   Torson also argues that because the appropriate standard was the best interest standard set forth in KRS 403.320, Hanson's arguments concerning his alleged failure to show a “substantial change in circumstance” are moot.

Alternatively, Torson argues that even if the more stringent standard set forth in KRS 403.340 were applicable, he provided ample evidence to satisfy the substantial change burden set forth therein.   He argues that, contrary to Hanson's portrayal of the testimony, he has sufficiently demonstrated a substantial change in circumstances since the time of the September 18, 2007 agreed order.   He argues that most of the testimony offered by his witnesses was focused on the current living conditions of the children, and their current relationship with their mother. Double

In reviewing the arguments of the parties, we note that Kentucky Rules of Civil Procedure (CR) 52.01 provides that findings of fact made by the trial court shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to determine the credibility of the witnesses before it.   See CR 52.01.   A factual finding is not clearly erroneous if supported by substantial evidence.   See Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).   Substantial evidence is that which has sufficient probative value to induce conviction in the mind of a reasonable person when taken alone or in light of all the evidence.   Golightly at 414.   We also note that the trial court has very broad discretion when determining matters pertaining to custody of children.  Krug v. Krug, 647 S.W.2d 790 (Ky.1983).   A trial court's custody award, that is, the application of the law to the court's findings of fact, will not be disturbed unless it constitutes an abuse of discretion.   See Allen v. Devine, 178 S.W.3d 517, 524 (Ky.App.2005).   A court abuses its discretion when its decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.   Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky.2004).   Whether the trial court properly applied the law to the facts is a question that we review de novo.   Allen at 524.   We review this matter with these standards in mind.

Having reviewed the applicable legal authorities, including the recent holding of our Kentucky Supreme Court in Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008), we are in agreement with Torson's assertion that the court's determination in this matter should have been governed by KRS 403.320.   In any event, we note that Torson's motion to modify timesharing was filed more than two years after the entry of the initial custody decree and, accordingly, even under KRS 403.340, a best interest standard would apply as opposed to the more serious endangerment standard set forth in KRS 403.340(2) and (4).   Thus, we find the issue as to whether KRS 403.340 or 403.320 is applicable to be a distinction without difference sub judice.

Having so stated, we nevertheless believe that KRS 403.320 is the applicable provision to the matter sub judice.   Pursuant to their separation agreement, the parties had joint custody of G.T. and A.T., and agreed to significant child timesharing.   Under that arrangement, Hanson was the children's primary residential custodian, a designation which Torson subsequently sought for himself by petition to the court below.

As the parties acknowledge, motions may be made to modify visitation pursuant to KRS 403.320 or to modify custody pursuant to KRS 403.340.   Pennington at 767.   This Court must determine what is being asked for by deciding whether a party seeks to modify the legal nature of the child's custody or simply how much time a child spends with each parent.  Id. When the issue is merely deciding how much time a child spends with each parent, timesharing—and not custody—is the issue.  Id. at 768 (a parent who is not seeking a change in joint custody but only where a child will reside needs to file a motion for modification of timesharing).   The latter is the case in this instance.

Having concluded that Torson's motion was in fact a motion to modify timesharing and not a motion to modify custody, we believe the best interest standard set forth in KRS 403.320 to have been the appropriate inquiry in this matter, as opposed to the serious endangerment standard provided in KRS 403.340(2) and utilized by the court in this instance.   Necessarily, KRS 403.320 requires a consideration of whether modification would serve the “best interests” of the child, which is certainly a less stringent standard than the standard of serious endangerment set forth in KRS 403.340(3).

Sub judice, despite recognizing that Torson's motion was one to modify timesharing and not custody, the court applied the more stringent endangerment standard set forth in KRS 403.340, as opposed to the best interest standard set forth in KRS 403.320.   Nevertheless, we are in agreement with Torson that this action on the part of the court was harmless error both because (1) the motion was made more than two years after the decree and (2) the motion was made pursuant to KRS 403.320, resulting in the application of a standard more stringent than necessary for the findings of the trial court.   Accordingly, we are in agreement with Torson that he needed only to have established that the change in primary residential custodian was in the best interests of the children and not that there had been a “substantial change in circumstances” since the time of the last custody agreement.   Having reviewed the evidence of record, we believe that Torson sufficiently and amply met this burden of proof.

Hanson correctly argues that some of the conditions and circumstances of which Torson complains were present at the time he agreed to allow her to remain primary residential custodian in 2007;  however, other evidence clearly establishes an ongoing and escalating pattern of behavior as well as new circumstances which have developed since that time. Double Care must be taken not to confuse issues and the evidence introduced in support of the issues.   Certainly, re-litigation would be questionable if the same evidence were introduced on the same issues at a later time;  but revisiting an issue in the light of new evidence in child custody cases, as was done in the case below, is certainly proper.   Accordingly, we find no error in the court's determination that it was in the best interest of G.T. and A.T. to reside with their father.

Further, having reviewed Pennington, we are not in agreement with Hanson's assertion that Torson should be barred from seeking a change in primary residential custodian under principles of res judicata, or that Pennington is otherwise inapplicable in this instance simply because Torson agreed to allow Hanson to remain as primary residential custodian in 2007.   As previously set forth herein, we believe that it was within the discretion of the circuit court to review the evidence before it and to determine its credibility or lack thereof.   Clearly, the court was of the opinion that the evidence before it, which included testimony concerning events occurring after 2007 and into the present, established that it was in the best interest of the children to reside primarily with their father.   We see no reason to disturb that determination on appeal and cannot find that same was clearly erroneous.

Wherefore, for the foregoing reasons, we hereby affirm the September 3, 2010 findings of fact, conclusions of law, and final order of the Woodford Circuit Court.