STEVENSON D. COMBS v. TINA G. COMBSAnnotate this Case
October 17, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
STEVENSON D. COMBS
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 95-CI-0115
TINA G. COMBS
* * * * * *
DYCHE, GUIDUGLI, and MILLER, JUDGES.
Stevenson D. Combs appeals an April 30, 1996,
order of the Pulaski Circuit Court granting custody of the
parties' two children to his former wife, appellee, Tina Combs.
The parties married in February 1991 and separated in
In February 1995, Stevenson filed for divorce and
requested custody of the couple's two daughters Talana, born
October 5, 1991, and Siarra, born May 31, 1993.
At the same
time, the parties filed a Separation Agreement and Property
Rights Settlement that stated, inter alia, the parties desired to
share joint legal custody of the two children with actual
physical custody given to Tina and liberal visitation rights
allowed for Stevenson.
The children resided with Tina until
April 1995, when Stevenson filed an ex parte motion for temporary
physical custody of the children.
This motion was initiated
because of an incident that occurred on April 15, 1995.
date, the truck driven by Stevenson, containing the two children
and his present girlfriend, ran off the road after the vehicle
being driven by Tina stopped in the roadway.
a small cut, but no one else was hurt.
On April 21, 1995, the
circuit court granted the motion and awarded Stevenson temporary
physical custody of the children.
On May 11, 1995, Tina filed a
motion seeking temporary custody and care of the children.
the interim, the Pulaski County Grand Jury indicted Tina on four
counts of wanton endangerment related to the automobile accident
in April 1995.
In July 1995, the Domestic Relations Commissioner
recommended deferring a decision on the custody of the children
until the criminal charges against Tina had been resolved.
August 1995, Tina again moved for temporary custody.
On August 24, 1995, the circuit court conducted a
hearing on the divorce and the issue of custody.
At the hearing,
both parties testified about the April 15, 1995, incident and
they reached agreement on all the issues involved in the divorce
except for child custody.
On September 26, 1995, the circuit
court entered a Decree of Dissolution adopting the February 1995
settlement agreement, but reserved ruling on custody of the
On February 10, 1996, Tina filed another motion for
change of physical custody.
On April 30, 1996, the circuit court
issued an order granting custody of the children to Tina with
reasonable visitation for Stevenson.
Stevenson to pay child support.
The court also ordered
Subsequently, Stevenson filed a
Motion to Alter, Amend or Vacate the custody order pursuant to
Rule of Civil Procedure (CR) 59, which included a request for a
specific visitation order.
On May 24, 1996, the circuit court
issued an order specifying extensive visitation for Stevenson.
On June 11, 1996, Tina filed a Motion to Alter, Amend or Vacate
the May 24th visitation order and requesting a standard
On August 5, 1996, the circuit court denied
the CR 59 motions of both parties.
This appeal followed.
Stevenson challenges the circuit court's granting of
custody of the children to Tina on several grounds.
Stevenson contends that the trial court erred by determining the
custody issue before final resolution of the criminal charges
Second, he argues the circuit court's order should
be overturned because the trial judge failed to make sufficient
findings of fact under CR 52.01 and Kentucky Revised Statute
Third, Stevenson claims the circuit court erred
by awarding sole custody to Tina where she had not specifically
requested sole custody.
As a general rule, a trial court has broad discretion
in determining the best interest of children when awarding child
Krug v. Krug, Ky., 647 S.W.2d 790, 793 (1983).
reviewing a child custody determination, the standard of review
is whether the factual findings of the trial court are clearly
Reichle v. Reichle, Ky., 719 S.W.2d 442, 444 (1986);
Basham v. Wilkins, Ky. App., 851 S.W.2d 491, 493 (1993).
Findings of fact are clearly erroneous if they are manifestly
against the weight of the evidence or not supported by
Wells v. Wells, Ky., 412 S.W.2d 568, 571
(1967); Poe v. Poe, Ky. App., 711 S.W.2d 849, 852 (1986).
addition, a trial court's decision on an award of custody should
not be disturbed absent an abuse of discretion.
Dudgeon, Ky., 458 S.W.2d 159, 160 (1970); Cherry v. Cherry, Ky.,
634 S.W.2d 423, 425 (1982).
In the case sub judice, the circuit court made the
following specific factual findings:
1) the allegations in the
criminal charges against Tina did not render her unfit; 2) at the
time of the order, Stevenson was not employed, he was receiving
AFDC benefits and he was living in public housing.
argues that the circuit court erred by rendering a decision on
the custody issue prior to final resolution of the criminal
charges against Tina.
However, Stevenson has not cited any
authority in support of this position.
The circuit court
conducted a hearing on this issue and heard testimony from
adult witnesses to the April 1995 incident.
The circuit court
noted that the settlement agreement between the parties would
have allowed Tina to retain physical "custody" of the children.
The court had sufficient evidence to assess whether the criminal
allegations against Tina affected the best interests
consideration for determining child custody.
We believe the
circuit court did not err by refusing to delay the custody
dispute until resolution of the criminal proceedings against
Stevenson also argues the trial court committed
reversible error for failing to make sufficient specific findings
of fact in accordance with CR 52.01 and KRS 403.270.
points out that CR 52.01 applies in child custody cases and
requires the trial court to find facts on issues raised in the
pleadings or which are mandated to be considered by statute.
Stafford v. Stafford, Ky. App., 618 S.W.2d 578, 580 (1981),
overruled on other grounds by Largent v. Largent, Ky., 643 S.W.2d
As the court stated in McFarland v. McFarland, Ky.
App., 804 S.W.2d 17, 18 (1991), "In child custody cases, the
trial court must consider all relevant factors including those
specifically enumerated in KRS 403.270(1) in determining the
'best interest of the child'.
In doing so, it is mandatory that
facts be so found specifically."
(Emphasis in original).
This obligation, however, does not dictate a reversal
of the trial court's order in this case.
Under CR 52.04, "a
final judgment shall not be reversed or remanded because of the
failure of the trial court to make a finding of fact on an issue
essential to the judgment unless such failure is brought to the
attention of the trial court by written request for a finding on
that issue or by a motion pursuant to Rule 52.02."
A review of
the record shows that Stevenson did not request more specific or
additional findings of fact by the trial court on the factors
enumerated in KRS 403.270.
Any failure of the trial court to
make adequate findings of fact was not brought to its attention
as required by CR 52.04, and therefore any deficiency was waived.
See Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982); Holland v.
Holland, Ky. App., 679 S.W.2d 835, 836 (1984)(father waived
argument on whether findings were sufficient to award custody to
non-parent by failing to request findings on issue of parental
The appellate court may look to the entire record to
determine whether the factual findings are clearly erroneous or
the trial judge abused its discretion.
Cherry, 634 S.W.2d at
As the trial court noted, the parties originally agreed
that Tina would have physical custody of the children.
addition, the record indicates that Tina was the primary
caregiver during the marriage.
The trial court transferred care
of the children to Stevenson after he filed an ex parte motion
for temporary custody based on the April 15, 1995 vehicular
After hearing evidence on the incident, the trial
court found that it did not render Tina unfit.
custody is appropriate where the parents are able to cooperate,
which is defined as a "willingness to rationally participate in
decisions affecting the upbringing of the child."
S.W.2d at 769.
In this case, Stevenson and Tina have heatedly
disputed custody, visitation, and child support.
pursued criminal prosecution of Tina involving the vehicular
As the court in Squires reaffirmed, the trial court
possesses broad discretion in determing whether joint or sole
custody would be in the best interest of the children.
The trial court is in the best position to evaluate the
testimony and weigh the evidence, so an appellate court should
not substitute its own opinion for that of the trial court.
Reichle, 719 S.W.2d at 444.
Based on the entire record, we
cannot say the trial court abused its discretion in awarding sole
custody to Tina.
Stevenson's final argument is that the trial court
erred by awarding sole custody because Tina never specifically
requested sole custody.
A review of the record reveals that Tina
filed two motions seeking care, custody and control of the
Moreover, KRS 403.270(1)(a) states that the trial
court should consider the wishes of the parents, but the trial
judge certainly is free to choose between sole or joint custody
based on the best interests of the children.
There is no
statutory or policy preference for joint custody.
Squires, Ky., 854 S.W.2d 765 (1993).
See Squires v.
Thus, this challenge to the
trial court's order is without merit.
For the above-stated reasons, we affirm the order of
the Pulaski Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David C. Teater
Charles J. McEnroe