SHERRY A. CROW v. RODNEY B. CROW

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RENDERED: February 5, 1999; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-002137-MR SHERRY A. CROW APPELLANT APPEAL FROM HARDIN CIRCUIT COURT HONORABLE T. STEVEN BLAND, JUDGE ACTION NO. 95-CI-00576 v. RODNEY B. CROW APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: DYCHE, JOHNSON, AND KNOPF, JUDGES. JOHNSON, JUDGE: Sherry A. Crow (Sherry) appeals from an order of the Hardin Circuit Court entered on July 29, 1997, that changed the primary physical residence of her children from her residence to her former husband’s. Sherry argues on appeal (1) that the trial court’s factual findings are clearly erroneous; (2) that the trial court failed to properly consider all relevant factors set forth in Kentucky Revised Statutes (KRS) 403.270(1); and (3) that the trial court erred in not considering certain evidence. Having reviewed the record and applicable law, we affirm. Sherry and the appellee, Rodney B. Crow (Rodney) were married in 1986. divorced in 1995. They had a girl in 1988, a boy in 1993, and The parties reached an agreement as to joint custody of their children, which was approved by the circuit court. Pursuant to their joint custody arrangement, the children’s primary physical residence was with Sherry. Sherry and a man named Dale Legel (Legel) married and continued to live in Hardin County. Rodney, who is a Chief Warrant Officer in the U.S. Army, was assigned to Fayetteville, North Carolina. He also remarried. In October 1996, Sherry telephoned Rodney and informed him that Legel had sexually abused their daughter.1 Sherry indicated that she was divorcing Legel and she and the two children were moving to Michigan to be near her family. In November 1996, Rodney filed a motion with the trial court asking for custody and physical possession of the two children. Following a hearing, the Domestic Relations Commissioner (Commissioner) filed his recommendations on June 17, 1997. The Commissioner recommended that the parties continue to have joint custody, but that the children’s primary physical residence be changed to Rodney’s residence. Sherry filed objections to the Commissioner’s recommendations, but the trial court denied the 1 Legel was indicted in Hardin Circuit Court for sexual abuse in the first degree, but the record does not reflect the disposition of that charge. -2- objections and affirmed the Commissioner’s report in its entirety. This appeal followed. A trial court’s findings of fact in a domestic relations case will not be set aside unless they are clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01; Aton v. Aton, Ky.App., 911 S.W.2d 612, 615 (1995). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982). In this case, the trial court correctly noted that this Court in Benassi v. Havens, Ky.App., 710 S.W.2d 867, 869 (1986), held that following an agreed joint custody award, if the parties subsequently disagree, “modification should be made anew under KRS 403.270 as if there had been no prior custody determination.”2 The overriding consideration in the new child custody determination is the best interests of the child. Squires v. Squires, Ky., 854 S.W.2d 765, 768 (1993); KRS 403.270. 2 We are aware of Jacobs v. Edelstein, Ky.App., 959 S.W.2d 781 (1998); Stinnett v. Stinnett, Ky.App., 915 S.W.2d 323 (1996); and Mennemeyer v. Mennemeyer, Ky.App., 887 S.W.2d 555 (1994), which discuss the procedural threshold requirements that must be met before a trial court can change a joint custody decree. While the trial court herein made no finding of inability or bad faith refusal of one or both parties to cooperate, we do not believe such a finding is required when a child has been abused. When this Court set forth the procedural threshold requirement in Mennemeyer, it specifically noted that Mennemeyer differed from Benassi where there had been allegations that the child had been neglected and mistreated. 887 S.W.2d at 558. -3- The first issue raised by Sherry is her claim that the trial court erred in making the following four findings of fact: (1) “Mr. Legel was abusive to the Petitioner and her children and their relationship was very tumultuous”; (2) that Sherry “left Mr. Legel several times and resided with her family in Michigan”; (3) that “[t]he father was generally uninformed as to where the Petitioner and the children were residing as they moved about”; and (4) the “Commissioner suspects that the Petitioner might have sneaked back home from shopping to see if Mr. Legel was abusing [the daughter].” The trial court’s findings of fact are approximately five pages in length, but the following paragraphs are a concise summary of those findings: When considering the conduct of the parties that affects the relationship to the children, this Commissioner finds that the Petitioner did not provide adequate protection for her children and placed them in danger. The Petitioner knew of Mr. Legel’s abusive behavior but failed to remove the children as well as herself from that danger. This Commissioner finds that both parties love their children and want to be with them. This Commissioner is concerned about the Petitioner’s stability and when compared to the Respondent, finds that the Respondent can provide the safer and more stable environment for the children. This Commissioner believes that the parties can work together to jointly raise their children. See Aton v. Aton, [supra]. This Commissioner has considered those factors in KRS 403.270 and finds that it would be in the children’s best interests to award the parties’ joint custody with the Respondent having primary physical possession beginning July 5, 1997. -4- From the evidence of record, including Sherry’s own testimony, we conclude that the trial court was not clearly erroneous in finding that Legel was abusive to Sherry and her children and that “their relationship was very tumultuous.” Any error that the trial court may have made concerning the number of times that Sherry left Legel and concerning whether Rodney was informed about the children’s location, was harmless. The primary emphasis of the trial court’s findings of fact remains the same: Sherry knew of Legel’s abusive behavior and failed to protect her children from him. Sherry’s complaint about the fact-finder making an inference concerning his suspicions that she was trying to see if Legel was abusing her daughter is not well taken. An important function of any fact-finder is to make inferences from the evidence. Jackson v. General Refractories Company, Ky., 581 S.W.2d 10, 11 (1979). We cannot say from all the evidence of record that the trial court’s finding regarding this suspicion on behalf of the trial court was clearly erroneous. “The trial court heard the evidence and saw the witnesses. It is in a better position than the appellate court to evaluate the situation.” Wells v. Wells, Ky., 412 S.W.2d 568, 571 (1967), citing Gates v. Gates, Ky., 412 S.W.2d 223 (1967), and McCormick v. Lewis, Ky., 328 S.W.2d 415 (1959). Sherry also contends the trial court erred by not considering all relevant factors set forth in KRS 403.270(1). Specifically, Sherry claims that section (c) concerning the child’s interaction and interrelationship with each parent and -5- section (d) concerning the child’s adjustment to his home were given inadequate consideration. However, our review of the findings indicates that the trial court considered the various factors. It is within the trial court’s discretion to weigh those factors, and we find no abuse of that discretion. Sherry also claims that contrary to KRS 403.270(2), the trial court’s findings failed to include “findings regarding the extent to which the alleged domestic violence and abuse affected the children and the children’s relationship to both parents.” However, the complaining party who desires that a finding of fact be made is required to ask the trial court pursuant to CR 52.02 to make a finding on that issue. S.W.2d at 425. CR 52.04; and Cherry, 634 Having failed to seek to specific finding, Sherry has failed to preserve this issue for appellate review. Finally, Sherry claims that the trial court erred by refusing to allow into evidence the testimony of social worker Ruth Lawton (Lawton). The trial court refused to allow the testimony of Lawton because she did not see the parties’ daughter until after the parties had announced that their cases were closed. The taking of proof is within the sound discretion of the trial judge and an appellate court will not interfere unless there has been an abuse of discretion. 426. Cherry, supra, at 425- In the case sub judice, the parties closed their cases on February 19, 1997. The child did not see Lawton until after this date, and it was March 13, 1997, before Sherry requested that -6- Lawton’s deposition be submitted as evidence. We find no abuse of discretion in not allowing this evidence. For the foregoing reasons, the custody order of the Hardin Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Hon. David T. Wilson II Radcliff, KY Hon. Phyllis K. Lonneman Elizabethtown, KY -7-

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