RAY BARTON CHESNEY and KRYSTAL DAWN CHESNEY v. PATRICIA GIBSON
Annotate this Case
Download PDF
RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001447-MR
RAY BARTON CHESNEY and
KRYSTAL DAWN CHESNEY
APPELLANTS
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE LOVELACE, JUDGE
ACTION NO. 97-CI-00141
v.
PATRICIA GIBSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GARDNER, Judges.
COMBS, JUDGE:
The appellants, Ray Barton Chesney and Krystal
Dawn Chesney (the Chesneys), appeal from the judgment of the
Wayne Circuit Court involving the issue of grandparent visitation
governed by KRS 405.021.
The Chesneys argue that the court erred
in denying their motion for change of venue and that the
visitation awarded to the appellee, Patricia Gibson (Gibson), was
unreasonable.
Having reviewed the record, we affirm the order of
the circuit court.
On May 31, 1997, Gibson filed a petition pursuant to
KRS 405.021 for visitation with K.C., her minor granddaughter.
K.C. was born of the marriage between Gibson’s daughter, Peggy
Ann Frost, and Barton Chesney.
In March 1995, Peggy Ann was
tragically killed in an automobile accident; K.C. was three years
of age at the time of her mother’s death.
Barton assumed sole
responsibility for raising K.C., who was also born with Down’s
Syndrome.
However, his mother and Gibson helped to care for K.C.
while Barton obtained training to become a paramedic.
In April
1997, Barton married Krystal, who ultimately adopted K.C.
Shortly after Barton’s remarriage, Gibson petitioned the Wayne
Circuit Court for visitation with K.C.
All of the parties were
residing in Wayne County at the time Gibson filed her petition.
On July 30, 1997, the Domestic Relations Commissioner
(DRC) filed a report with the court finding that it was in the
best interest of K.C. to grant Gibson visitation with her.
On
September 10, 1997, the court entered an order adopting the
report of the DRC and granted Gibson extensive visitation with
K.C.
The court ordered that Gibson be allowed the following
visitation with K.C.:
the first weekend of each month from 5:00
p.m. Friday until 5:00 p.m. Sunday; overnight visitation on the
second and fourth Wednesday of each month beginning after school;
one week each summer (in the month of July); four hours on
Memorial Day weekend; four hours on the day before the child’s
birthday; on Grandparents Day from 9:00 a.m. until 5:00 p.m.; one
day during Thanksgiving weekend from 12:00 p.m. until 7:00 p.m.;
and on Christmas Eve from 12:00 p.m. until 8:00 p.m.
Additionally, Gibson was ordered to provide all transportation
-2-
necessary to carry out the visitation schedule.
None of the
parties appealed the court’s order.
Subsequently, on January 21, 1998, Gibson filed a
motion concerning various issues (unrelated to this appeal)as to
her visitation with K.C.
In response, the Chesneys filed a
motion to transfer the case to Pulaski Circuit Court on the
ground that they had moved to Pulaski County in July 1997.
They
also filed a motion on February 9, 1998, to reduce Gibson’s
visitation.
The Chesneys argued that the extensive visitation
interfered with K.C.’s ability to spend holidays with her parents
and sibling — as well as limiting visitation opportunities with
her other grandparents (she has five sets of grandparents) and
extended family.
Additionally, they were no longer living in the
same county as Gibson, and they argued that the midweek
visitation had an adverse affect on K.C.’s performance and
behavior at school.
On April 7, 1998, the DRC filed his report with the
court recommending the following modified visitation schedule for
Gibson: one weekend per month on the first Friday of each month
beginning at 6:00 p.m. on Friday to 6:00 p.m. on Sunday; two
hours on the second and fourth Wednesday of each month from 4:00
p.m. to 6:00 p.m.; one week of summer visitation in July; four
hours during Memorial Day weekend; four hours on K.C.’s birthday;
visitation from 12:00 p.m. to 5:00 p.m. on grandparents day; one
day during the Thanksgiving holiday from 12:00 p.m. to 7:00 p.m.;
and visitation on Christmas Eve from 12:00 p.m. to 8:00 p.m..
The Chesneys filed exceptions to the DRC’s report.
-3-
On May 11.
1998, the court entered an order overruling the Chesneys’
exceptions and adopting in its entirety the DRC’s report.
The
court entered an amended order on June 2, 1998, adopting the
DRC’s report and making its order final and appealable.
This
appeal followed.
The Chesneys first argue that the court erred in
failing to grant their motion to transfer the action to Pulaski
County.
We disagree.
An action brought pursuant to KRS 405.021
must be brought in the circuit court in the county where the
child resides.
KRS 405.021(2).
At the time Gibson initiated
proceedings for visitation rights, the Chesneys lived with K.C.
in Wayne County.
Gibson correctly filed her petition for
visitation with the Wayne Circuit Court.
After the court granted
visitation rights to Gibson, the Chesneys moved to Pulaski County
and planned to move to Laurel County at the end of K.C.’s school
year.
“The granting of change of venue shall be within the sound
discretion of the court, and shall be granted by the court when
justice so requires.”
KRS 452.030.
In light of the fact that
this action originated in Wayne county and that the Chesneys are
not planning to reside permanently in Pulaski County, Wayne
Circuit Court has the most substantial interest in this case.
The court did not abuse its discretion in denying the Chesneys’
motion to transfer venue.
The Chesneys next argue that the court erred in not
substantially reducing Gibson’s visitation with K.C. to a more
manageable amount.
They do not challenge the award of visitation
rights to Gibson; rather, they contend that the amount of
-4-
visitation awarded to her was unreasonable.
The Chesneys
maintain that the extensive visitation awarded to Gibson
interferes with their ability to function as a family unit and to
raise their children.
They contend that it makes it difficult
for them to enjoy family holidays and to visit with other
extended family members.
They also assert that the extensive
visitation is disruptive to K.C.’s routine, emphasizing the
importance of maintaining a regular routine for a child with
K.C.’s handicap.
They ask this court to reverse and remand the
circuit court’s order with directions that it reduce Gibson’s
visitation with K.C. to a more reasonable amount.
KRS 405.021(1) provides that the
Circuit Court may grant reasonable visitation
rights to either the paternal or maternal
grandparents of a child and issue any
necessary orders to enforce the decree if it
determines that it is in the best interest of
the child to do so. (Emphasis added).
The constitutionality of KRS 405.021 was upheld by the Supreme
Court in King v. King, Ky., 828 S.W.2d 630 (1992).
Nonetheless,
the right to grandparent visitation is neither unrestricted nor
absolute.
Mustaine v. Kennedy, Ky. App., 971 S.W.2d 830 (1998).
A court may award grandparent visitation only after it has
conducted a hearing and entered findings of fact and conclusions
of law that the best interest of the child will be served by
granting visitation.
King 828 S.W.2d at 632.
The best interest
of the child is solely determinative of whether grandparent
visitation should be granted, and parental opposition alone is
not a sufficient basis to deny visitation.
App., 774 S.W.2d 129 (1989).
-5-
Baker v. Perkins, Ky.
In the case before us, the DRC conducted a lengthy
hearing before filing his report and recommendations with the
court.
In his report, the DRC reiterated his previous finding
that visitation with Gibson was in the best interest of K.C. and
stated that the visitation awarded previously to Gibson was
reasonable.
However, because of the reality of geographic burden
created by the Chesneys’ move to another county, the DRC found
that it was in the best interest of K.C. to eliminate Gibson’s
overnight visitation on the second and fourth Wednesday of each
week and to reduce the length of the visitation on certain
holidays.
The court adopted and incorporated the DRC’s report
into its order, modifying Gibson’s visitations as set out in the
DRC’s report.
As an appellate court, we cannot disturb the findings
of the trial court unless they are clearly erroneous.
CR 52.01.
The DRC set forth specific findings upon which he based his
recommendations, correctly utilizing the best interest of the
child standard.
We can find no error.
Based upon the facts and
circumstances of this case, we do not find that the visitation
schedule is unreasonable
For the foregoing reasons, we affirm the order of the
Wayne Circuit Court.
GARDNER, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
DYCHE, JUDGE, DISSENTING.
Although the General
Assembly has enacted a statute providing for grandparent
visitation, I doubt its constitutionality.
-6-
King v. King, Ky.,
828 S.W.2d 630,633-5 (1992) (Lambert, J., dissenting).
Even if
the statute is constitutional, the present application is
excessive, and unduly interferes with the child’s nuclear family
life.
I would vacate and remand for less visitation by appellee.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Samuel E. Begley
London, KY
Robert E. Gillum
Somerset, KY
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
