MARCY MITCHELL APPELLANT v. CAREY LOOMIS APPELLEE

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Court of Appeals of Kentucky.

MARCY MITCHELL APPELLANT v. CAREY LOOMIS APPELLEE

NO. 2011–CA–001213–ME

Decided: May 11, 2012

BEFORE:  CLAYTON, MOORE, AND NICKELL, JUDGES. BRIEF FOR APPELLANT:  Adele Burt Brown Lexington, Kentucky BRIEF FOR APPELLEE:  Brandie L. Hall Mount Sterling, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

This is an appeal from a decision of the Menifee Circuit Court in a custody action.   Based upon the following, we reverse and remand this action.

BACKGROUND INFORMATION

Carey Loomis and Marcy Mitchell are the parents of a child (SAL) born February 11, 2003.   Since the birth of SAL, Loomis and Mitchell have shared joint custody of SAL since they entered into an agreed order on August 26, 2003.   The parents also share equal time with SAL. Throughout SAL's life, there have been numerous motions filed by Loomis asserting that Mitchell has failed to cooperate and communicate with him regarding decisions for SAL. One of the issues between Loomis and Mitchell appears to stem from the fact that Mitchell lives in Menifee County while Loomis lives in Rowan County.   Loomis contends that Mitchell does not want SAL to participate in activities based in Rowan County and that she often does not bring him to scheduled events.   Loomis filed a motion on June 30, 2010, after which the trial court ordered that any deviation from SAL's scheduled activities must be put in writing to give advance notice to Loomis as well as documentation filed with the court of a compelling reason for such absence or deviation.

On January 10, 2011, Loomis brought another motion asserting that Mitchell had deviated from the schedule without sufficient notice and that she had taken SAL to Alabama for Thanksgiving without informing Loomis that he would be out of state and without giving him any method by which to contact SAL during the holiday.   As a result of this motion, a hearing was held on February 24, 2011.   After the hearing, the trial court modified the parties' custody of SAL from joint custody to sole custody with Loomis.   Mitchell then made a motion to alter, amend or vacate and asked the court to provide specific findings regarding Kentucky Revised Statutes (KRS) 403.340, however, the trial court denied her motion.   Mitchell then brought this appeal.

STANDARD OF REVIEW

Kentucky Rules of Civil Procedure (CR) 52.01 provides that “[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.”   A judgment is not “clearly erroneous” if it is “supported by substantial evidence.”  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).   Substantial evidence is “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.”  Id. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972).   With this standard in mind, we review the trial court's decision.

DISCUSSION

Mitchell first contends that the trial court erred in failing to consider the statutory factors contained in KRS 403.340(3) and KRS 403.270(2) before modifying the previous custody agreement.   She contends that the court should have made specific findings pursuant to these statutes.  KRS 403.340 provides that a court:

shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child.   When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following:

(a) Whether the custodian agrees to the modification;

(b) Whether the child has been integrated into the family of the petitioner with consent of the custodian;

(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child;

(d) Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health;

(e) Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him;  and

(f) Whether the custodian has placed the child with a de facto custodian.

(4) In determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to:

(a) The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child's best interests;

(b) The mental and physical health of all individuals involved;

(c) Repeated or substantial failure, without good cause as specified in KRS 403.240, of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support;

(d) If domestic violence and abuse, as defined in KRS 403.720, is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents.

KRS 403.270 provides, in relevant part, that:

(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent [.] The court shall consider all relevant factors including:

(a) The wishes of the child's parent or parents, ․ 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;

(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;

In determining that custody should be changed from Mitchell to Loomis, the court held that:

[T]here is a substantial and total inability to communicate between the parties and ․ any communications that do take place are not followed through with in the least or otherwise sabotaged by [Mitchell] to make them ineffectual and thus making joint custody ineffectual[.]

This holding is insufficient for a change of custody.   In Scheer v. Zeigler, 21 S.W.3d 807, 814 (Ky.App.2000), the Court held that:

joint custody is an award of custody which is subject to the custody modification statutes set forth in KRS 403.340 and KRS 403.350 and ․ there is no threshold requirement for modifying joint custody other than such requirements as may be imposed by the statues.  (Footnote omitted).

While KRS 403.340(4)(c) sets forth that custody may be modified based upon “[r]epeated or substantial failure ․ of either parent to observe visitation, ․” it “․ shall not be made solely on the basis of failure to comply with visitation[.]”

In the present case, there was no evidence that the child has been harmed by the constant back and forth between the parents.   In fact, there was testimony by all parties that SAL was very well adjusted.   He did well in school, was not a behavior problem and had good interpersonal relationships with his half-siblings.   The court made no findings about considerations outlined in KRS 403.340 or the specific factors in KRS 403.270.   The evidence set forth at the hearing indicated that both parties were at fault regarding the litigiousness of the custody issues.   We do not believe that the appropriate way to deal with this contrition between the parents is to change custody of the child.   Especially when there is no showing that the child is being harmed.   As stated earlier, there are no disciplinary issues either at school or at home nor are there changes in behavior which would indicate the child was stressed.

For the above stated reasons, we find the trial court erred in changing custody of the child and remand this case to the trial court for reentry of the original custody order.

NICKELL, JUDGE, CONCURS IN RESULT ONLY.

MOORE, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.

MOORE, JUDGE, CONCURRING IN RESULT ONLY. I concur with the majority's decision to reverse but for different reasons.   In my view the trial court did not evaluate the proper considerations for a change in custody pursuant to KRS 403.340 & KRS 403.270.   I would reverse and remand for findings under these statutes.

CLAYTON, JUDGE: