LESLIE JOHNSON FLYNN v. FRANK A. FLYNN
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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NOT TO BE PUBLISHED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-002473-MR
LESLIE JOHNSON FLYNN
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE THOMAS B. MERRILL, JUDGE
ACTION NO. 96-FC-004121
v.
FRANK A. FLYNN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON, AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Leslie Johnson Flynn (Leslie) appeals from a
child custody judgment of the Jefferson Family Court entered on
July
29, 1997.
Leslie and her former husband, Frank Anthony
Flynn (Frank), agreed to share joint custody of their two
children, but disagreed as to the primary residential placement
of the children.
The trial court granted primary residential
placement of the children with Frank and ordered Leslie to pay
child support.
In her brief, Leslie claims that the trial court
abused its discretion in making both of these decisions.
After
reviewing the record, the arguments of counsel, and applicable
law, we affirm.
The parties were married in 1990.
They had two
children, a boy born in 1992 and a girl born in 1995.
They
separated in 1996 and Leslie petitioned for dissolution of the
marriage.
The Flynns divided their property by agreement, and
also stipulated that they would share joint custody of the
children.
The only issue remaining for determination by the
trial court was the children’s primary physical residence.
The Jefferson Family Court held a hearing in June 1997.
By order entered on July 29, 1997, the trial court adjudged that
the children’s primary physical residence would be with Frank,
with Leslie to pay child support.
On July 30, 1997,
Leslie
filed a motion under Kentucky Rules of Civil Procedure (CR) 59.05
and 60.02, alleging that Frank had committed perjury regarding
his plans to remarry.
September 23, 1997.
The trial court denied the motions on
This appeal followed.
Leslie argues that Frank committed perjury and
perpetrated a fraud upon the trial court when he denied having
plans to marry.
She asserts that because the trial court’s
decision in favor of Frank relied upon the uncertainty of
Leslie’s new relationship and new marriage, Frank’s new
relationship and his deception concerning an impending marriage
warrant a decision in her favor.
Frank responds that the trial
court’s decision was properly based upon Leslie’s move to the
Cincinnati, Ohio area.
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The overriding consideration in any child custody
determination is the best interests of the child.
Squires v.
Squires, Ky., 854 S.W.2d 765, 768 (1993); Kentucky Revised
Statute (KRS) 403.270.
The trial court’s findings of fact in a
domestic relations case will not be set aside unless they are
clearly erroneous.
612, 615 (1995).
CR 52.01; Aton v. Aton, Ky. App., 911 S.W.2d
“[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).
The record indicates the trial court considered
testimony from the parties, three expert witnesses, Frank’s
mother, and other witnesses with knowledge of the parties.
At
the time of the hearing, Frank had been employed for many years
as a firefighter in St. Matthews.
on duty, 48 hours off.
His work schedule was 24 hours
He had family in the Louisville area and
in March 1997 was dating a lady named Keely Graven (Keely).
There was evidence that Frank’s parents were available to care
for the children when they were not with him, Leslie, or at a day
care center.
Dr. Paula Berry, a licensed clinical psychologist, was
appointed by the trial court to perform a custodial evaluation.
She interviewed Frank, Leslie, and Leslie’s fiancé Todd Coke
(Todd), administered a psychological assessment to each of them,
and observed them with the children.
-3-
Dr. Berry recommended that
the children’s primary residence be with Frank because of
negative personality traits she identified in Leslie and Todd and
the impact of Leslie’s move to Ohio.
Leslie has a degree in early childhood education and
had worked in retail management in Louisville.
family in the Louisville area.
She also had
She planned to marry Todd, and to
move to Ohio with him because his job at United Parcel Services
required him to move.
Leslie intended to stay at home to care
for the children.
Dr. Kathleen Kirby, a licensed clinical psychologist,
testified on Leslie’s behalf.
Like Dr. Berry, she interviewed
Frank, Leslie, and Todd, but employed a different psychological
assessment.
children.
She found them all to be capable of caring for the
Dr. Kirby recommended that the children’s primary
residence be with Leslie.
Citing the geographical distance
between the parties,1 Dr. Kirby stated that Frank’s schedule
would make it more appropriate for him to exercise visitation
with the children, rather than the children’s primary residence
being with him.
Dr. Edward Berla also testified for Leslie, but only on
the propriety of the psychological assessments used by Drs. Berry
and Kirby.
He testified that the test administered by Dr. Berry
was inappropriate for a custodial evaluation.
1
It takes approximately 1 3/4 hours to drive the distance
between Frank’s home in the Greater Louisville Area and Leslie’s
home in the Greater Cincinnati Area.
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The trial court found that joint custody was in the
best interests of the children and decided the children’s primary
physical residence should be with Frank.
It noted that both
parents were fit to have custody of the children and that there
was no clear reason to favor one parent’s residence as the
primary physical residence over the other’s.
Two factors the
trial court mentioned as being against naming Leslie’s residence
as the primary physical residence included:
(1) Leslie’s move to
Ohio would mean a new environment for the children, away from
their established neighborhood, school, church, friends, and
extended family; and (2) Leslie was beginning a new marriage.
Leslie timely filed motions pursuant to CR 59.05 and CR
60.02 alleging that she had newly discovered evidence and that
Frank had committed a fraud upon the trial court.
She requested
the trial court to alter, amend or vacate its custody order.
Leslie alleged that Frank was planning to marry Keely and that he
had misled the trial court about his intentions.
The trial court
heard arguments of counsel and set a date for a hearing.
The
parties took additional depositions and stipulated to the entry
of documentary evidence.
The additional evidence would support a finding that
after the custody hearing in early June, Frank and Keely had made
wedding plans for August 15, 1997, but the wedding was canceled
upon the advice of Frank’s attorney.
The trial court stopped
short of finding that Frank had committed perjury, but concluded
that he had not been completely honest.
-5-
The trial court further
noted that if it had been informed that Frank planned on
remarrying, it would have ordered a custodial evaluation of Keely
as it had for Todd.
However, the trial court ultimately stood by
its original decision and denied Leslie’s motion.
The trial
court stated that it was most concerned with the impact of the
children moving from the Louisville area to the Cincinnati area,
and expressed concern that it would lose jurisdiction over the
parties if the children’s primary physical residence was with
Leslie.
We find no clear error in any of the trial court’s
factual findings.
Aton, supra.
The record supports a finding
that both parents are capable of caring for the children.
As for
Frank’s plan to remarry, the trial court’s assessment of the
evidence is supported by the record.
The psychologists and the
trial court would have had a more complete picture if the planned
marriage between Frank and Keely had been known to them earlier.
However, the trial court considered the evidence carefully and
thoughtfully, wrestled with the strengths and weaknesses of each
parent’s home being the primary physical residence, and
recognized that Frank had been less than forthcoming.
The
conclusion reached by the trial court was within its sound
discretion and not an abuse of that discretion.
Cherry, supra.
In her brief, Leslie also argues that the trial court
erred in ordering her to pay child support.
Leslie’s notice of
appeal, which was filed on September 15, 1997, identified the
orders appealed from as the July 29, 1997 custody order and the
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September 23, 1997 order denying Leslie’s CR 59.05 and 60.02
motions.
Neither order determined child support.
Rather, child
support was awarded in an order entered on October 3, 1997.
This
order was not appealed from, and consequently, this issue is not
properly before this Court and we cannot address it.
73.02(2).
CR
We also note that Leslie’s brief is not in compliance
with CR 76.12(4)(c)(iv), which requires “a statement with
reference to the record showing whether the issue was properly
preserved for review and, if so, in what manner.”
For the foregoing reasons, the judgment of the
Jefferson Family Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Stuart Yussman
Louisville, KY
Hon. James O. Risch
Louisville, KY
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