WILLIAM DAVID RUTLEDGE v. SANDRA LEE RUTLEDGE
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RENDERED:
September 3, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001610-MR
WILLIAM DAVID RUTLEDGE
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM HARRIS, JUDGE
ACTION NO. 96-CI-00115
v.
SANDRA LEE RUTLEDGE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
William David Rutledge (William) appeals from
a judgment of the Allen Circuit Court entered June 2, 1998,
awarding Sandra Lee Rutledge (Sandra) sole custody of the
parties’ two minor children.
We affirm.
The parties were married on August 11, 1990, in Allen
County, Kentucky.
Two minor children were born of the marriage,
namely, Elizabeth Lane Rutledge, born March 27, 1991, and William
David Rutledge, Jr., born December 15, 1993.
On August 14, 1996,
Sandra filed a petition for dissolution of marriage in the Allen
Circuit Court.
A final hearing of the matter was conducted on
November 13, 1997, before the Domestic Relations Commissioner
(DRC).
At the hearing at least seven witnesses testified on the
issues of William’s character.
Additionally, Professor Lane J.
Veltkamp, a clinical psychologist, testified by deposition that
the parties were beginning to communicate and achieve cooperation
with regard to the children.
The other witnesses, in summary,
testified that William is easy to get along with, friendly and
polite.
However, Sandra testified regarding numerous incidents
of inability to cooperate with William regarding the children,
including problems during scheduled visitation and problems in
agreeing on medical treatment of the children.
She further
testified their relationship was continuously confrontational and
William often expressed his anger in front of the children.
The DRC filed a final trial report on March 18, 1998,
and recommended the trial court award sole custody of the
parties’ two minor children to Sandra, and William be granted
reasonable visitation rights.
On March 27, 1998, William filed
exceptions and objections to the DRC’s recommendations arguing
the DRC’s recommendation of sole custody in favor of Sandra was
not in the best interest of the children.
However, on June 2,
1998, the trial court entered a judgment awarding Sandra sole
custody of the parties’ two minor children.
This appeal
followed.
Initially it is important to note that “in 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).
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See also, Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974).
“[I]n
custody cases great weight must be given to the finding of the
[trial judge] concerning custody and...his conclusions will not
be disturbed except where he has abused his discretion....”
Borjesson v. Borjesson, Ky., 437 S.W.2d 191, 193 (1969).
William’s sole argument on appeal is that the trial court’s award
of sole custody to Sandra was clearly erroneous.
He argues that
“a cooperative spirit between the parties is not necessarily a
condition precedent to an award of joint custody” and that “[t]he
evidence was extremely strong for joint custody.”
Custody decisions in this Commonwealth are governed by
KRS 403.270, which states:
(1)
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
is 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; and
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(f)
Information, records, and evidence
of domestic violence, as defined in
KRS 403.720.
(2)
The court shall consider conduct of a
proposed custodian that does not affect
his relationship to the child. If
domestic violence is alleged, the court
shall determine the extent to which the
domestic violence and abuse has affected
the child and the child’s relationship
to both parents.
(3)
The abandonment of the family residence
by a custodial party shall not be
considered where said party was
physically harmed or was seriously
threatened with physical harm by his or
her spouse, when such harm or threat of
harm was casually related to the
abandonment.
(4)
The court may grant joint custody to the
child’s parents if it is in the best
interests of the child.
In recent years, questions have arisen regarding what
weight courts should place on the parents’ ability or inability
to cooperate when making a custody determination.
In Hardin v.
Hardin, Ky. App., 711 S.W.2d 863 (1986), this Court reviewed a
decision by a trial court awarding joint custody to both parents.
In applying KRS 403.270, we held that “joint custody cannot be in
the best interests of the children where the parents are not
sufficiently understanding and mature enough to cooperate in such
an agreement.”
Id. at 865.
However, in Chalupa v. Chalupa, Ky.
App., 830 S.W.2d 391, 393 (1992), we stated:
In finding a preference for joint custody is
in the best interest for the child, even in a
bitter divorce, the court is encouraging the
parents to cooperate with each other and to
stay on their best behavior. Joint custody
can be modified if a party is acting in bad
faith or is uncooperative. The trial court
at any time can review joint custody and if a
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party is being unreasonable, modify the
custody to sole custody in favor of the
reasonable parent. Surely, with the stakes
so high, there would be more cooperation
which leads to the child’s best interest, the
parents’ best interest, fewer court
appearances and judicial economy.
In Squires v. Squires, Ky., 854 S.W.2d 765, 769-70 (1993), the
Kentucky Supreme Court reviewed Hardin and Chalupa in terms of
joint custody and the best interests test and stated:
While the Court in Hardin considered the
proper factors, it depended too much on the
parties present failure to cooperate and, in
effect, permitted one or both of them to
deprive the trial court of a custody option
granted it by the General Assembly.
...
While we stop short of endorsing the Chalupa
preference for joint custody, i.e. “consider
joint custody first,” we endorse many of the
views expressed therein... [S]o long as KRS
403.270(4) remains the law of Kentucky, joint
custody must be accorded the same dignity as
sole custody and trial courts, must determine
which form would serve the best interests of
the child.
William argues that the trial court erroneously based
its decision to grant Sandra sole custody of the parties’ minor
children on the parties’ inability to cooperate.
However, a
thorough review of the trial court’s judgment shows that it based
its decision to grant sole custody of the parties’ minor children
to Sandra on a number of factors only one of which was the
parties’ inability to cooperate.
In its fact-finder, the court
stated, in pertinent part, the following:
6.
The evidence established that the
petitioner has been the childrens’
primary caregiver throughout their lives
and that prior to the parties’
separation, the respondent did not
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significantly assist her otherwise
actively participate in the childrens’
daily care. There was evidence
presented, however, that the respondent
often disagreed with the petitioner over
the childrens’ medical care which has
persisted subsequent to the parties’
separation.
7.
There were incidents of domestic
violence over the course of the parties’
marriage and the parties’ relationship
has continued to be confrontational.
The petitioner testified that the
respondent has been belligerent and
cursed her in the presence of the
children and has on occasion refused to
leave her residence upon returning the
children. She testified that she does
not communicate with the respondent on
matters involving the children in order
to avoid confrontations.
8.
The Court does not find the opinion of
Lane Veltkamp, the respondent’s
custodial evaluator, to be persuasive.
The Court finds that it is in the best
interest of the minor children that
their custody be awarded to the
petitioner subject to the respondent’s
reasonable visitation rights. That
finding is based on an implicit finding
that joint custody is not in the best
interest of these children based on the
failure and inability of these parties
to rationally participate in decision
making affecting the children.
As fact finder, the trial court is in the best position
to evaluate the parties’ situation and make a decision with
regard to custody.
We will not substitute our opinion for that
of the trial court.
We believe the decision of the trial court
was well reasoned and based upon the appropriate criteria as set
forth in KRS 403.270.
We find no abuse of discretion or clear
error.
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For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Harrison
Scottsville, KY
John H. McCracken
Bowling Green, KY
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