TRACY GAIL SEBASTIAN v. STACY DARREN SEBASTIAN
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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NOT TO BE PUBLISHED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-002153-MR
TRACY GAIL SEBASTIAN
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 97-CI-00285
v.
STACY DARREN SEBASTIAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GARDNER, Judges.
COMBS, JUDGE.
Tracy Gail Sebastian (Tracy) appeals from a decree
of dissolution of marriage and judgment entered by the Whitley
Circuit Court in which the court awarded the parties joint
custody, but named the father, Stacy Sebastian (Stacy), the
primary physical custodian of the parties’ child.
After
reviewing the record, we affirm.
The parties were married in June 1996 and separated in
May 1997.
In May 1997, Stacy filed a Petition for Dissolution of
Marriage in which he requested sole custody of the parties’
three-year-old daughter.
In August 1997, the parties agreed to
temporary joint custody with physical custody of the child
alternating on a weekly basis pending a final custody order.
In
December 1997, the trial court ordered the Cabinet for Families
and Children to prepare and provide the court with a home
evaluation of each party for purposes of assisting the court in
determining child custody.
In its order, the trial court ordered
that the resulting home evaluation report be filed in the court
record and be mailed to both of the parties’ attorneys.
In
February 1998, Tracy filed a motion and affidavit seeking
permission to file a response to the divorce petition and
requesting sole custody.1
On May 4, 1998, the two home evaluation reports were
filed in the court record as confidential documents.
On May 26,
1998, Tracy’s counsel filed a motion asking the court to strike
certain portions of her home evaluation on grounds that it
contained hearsay and requesting a second, more specific custody
evaluation.
On June 4, 1998, Stacy’s counsel filed a response
objecting to the motion and noting that Tracy could call the
persons interviewed for the home evaluation reports as witnesses
at the final custody hearing.
On June 8, 1998, the trial court
denied the motion and scheduled the custody hearing for June 12,
1998.
On June 12, 1998, the trial court conducted an
evidentiary hearing at which seven witnesses testified —
1
In the motion seeking permission to file the untimely
response, Tracy’s counsel explained that appellant was acting pro
se prior to December 1998 and had mistakenly sent her initial
response only to Stacy’s attorney rather than filing it with the
circuit court.
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including both of the parties.
At the hearing, Tracy’s attorney
attempted to enter into evidence documents related to an April
1997 traffic citation charging Stacy with speeding, driving
without a seat belt, and driving without insurance; he also
presented photographs of the parties’ child, who had been injured
in an automobile accident in May 1998 while she was riding as a
passenger in a truck driven by Stacy.
The trial court sustained
the objection to both sets of exhibits and denied their admission
into evidence.
The court also excluded speculative testimony
concerning the child’s injury in the May 1998 accident as to
whether or not she had been wearing a seatbelt.
Following the
hearing, the trial court issued a decree of dissolution and
judgment awarding the parties joint custody and designating Stacy
as the primary residential custodian.
On July 7, 1998, Tracy filed a motion to vacate, alter
or amend; a motion for specific findings of fact; and a motion
for a new hearing.
On July 30, 1998, the trial court issued an
order denying the motion to alter, amend or vacate; in denying
the motion for a new hearing, it made more specific findings as
to the reasons for the decision to award joint custody.
This
appeal followed.
Tracy raises several evidentiary issues involving the
custody hearing and the home evaluations.
First, she argues that
the trial court erred in refusing to allow her to introduce the
photographs of the child taken shortly after the May 1998
accident. The admissibility of photographs is a matter within the
sound discretion of the trial court, and we cannot disturb its
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ruling absent a clear showing of an abuse of discretion.
v. Commonwealth, Ky., 597 S.W.2d 616, 620 (1980).
Litton
We find no
error.
Tracy also complains that the trial court erred in
excluding the traffic citation and related documents involving
the April 1997 incident in which Stacy pled guilty to speeding,
failing to use a seat belt, and failing to have an insurance
card.
The trial court sustained the objection to admission of
these documents after learning that the child was not involved in
the incident.
The judge noted that he had permitted testimony on
the May 1998 accident because the child was present and was
personally affected.
In reviewing a trial court’s exclusion of evidence
based on objections to its relevance, we will not disturb the
court’s action unless there was an abuse of discretion as the
weighing of evidence as to relevancy is again a matter within the
sound discretion of the trial court.
Ky., 918 S.W.2d 219, 222 (1996).
Partin v. Commonwealth,
The evidence of Stacy’s bad
driving habits was apparently presented to impugn his fitness as
a custodial parent.
We cannot agree that the trial court abused
its discretion in excluding the documents related to the April
1997 incident.
We also find no error in the court’s exclusion of
speculative testimony from the police officer who investigated
the accident after-the-fact.
Tracy next argues that the trial court erred by failing
to exclude as hearsay certain information contained in the home
evaluations.
In December 1997, the trial court ordered the
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Cabinet for Families and Children to prepare home evaluations
pursuant to KRS 403.300:
(1) In contested custody proceedings, and in
other custody proceedings if a parent or the
child’s custodian so requests, the court may
order an investigation and report concerning
custodial arrangements for the child. The
investigation and report may be made by the
friend of the court or such other agency as
the court may select.
(2) In preparing his report concerning a
child, the investigator may consult any
person who may have information about the
child and his potential custodial
arrangements. Upon order of the court, the
investigator may refer the child to
professional personnel for diagnosis. The
investigator may consult with and obtain
information from medical, psychiatric, or
other expert persons who have served the
child in the past without obtaining the
consent of the parent or the child’s
custodian; but the child’s consent must be
obtained if he has reached the age of 16,
unless the court finds that he lacks mental
capacity to consent. If the requirements of
subsection (3) are fulfilled, the
investigator’s report may be received in
evidence at the hearing.
(3) The clerk shall mail the investigator’s
report to counsel and to any party not
represented by counsel at least 10 days prior
to the hearing. The investigator shall make
available to counsel and to any party not
represented by counsel the investigator’s
file of underlying data, and reports,
complete texts of diagnostic reports made to
the investigator pursuant to the provisions
of subsection (2), and the names and
addresses of all persons whom the
investigator has consulted. Any party to the
proceeding may call the investigator and any
person whom he has consulted for crossexamination. A party may not waive his right
of cross-examination prior to the hearing.
(Emphasis added.)
Tracy raises two objections with respect to the trial
court’s use of the home evaluation reports.
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First, she contends
that the reports were not admissible because the procedural
requirements of KRS 403.300 were not satisfied.
She contends
that the circuit court clerk did not mail copies to the attorneys
ten days prior to the hearing and that the reports did not
contain the addresses of all the persons consulted by the
investigator.
Counsel for Tracy also maintains that he was
unable to subpoena the persons identified in the reports because
the final hearing was conducted only four days following a June 8
hearing on a motion to exclude a portion of the evaluation
reports.
Tracy failed to raise this procedural objection with
the trial court, raising it for the first time in her appellate
brief.
Therefore, this argument is not properly before us:
"[t]he Court of Appeals is without authority to review issues not
raised in or decided by the trial court.”
Regional Jail
Authority v. Tackett, Ky., 770 S.W.2d 225, 228 (1989).
Even if we were at liberty to consider these arguments,
we find as a practical matter of fact that the record does not
support Tracy’s contention that she was prejudiced by any
noncompliance with the statute.
Although it appears the clerk
did not send a copy of the reports to Tracy’s counsel, counsel
was fully aware of the contents of the reports shortly after they
were filed with the clerk on May 4, 1998.2
On May 26, 1998,
Tracy’s counsel filed a motion to strike certain portions of the
home evaluation report concerning Tracy and requesting a second
report.
At the June 8 hearing, Tracy’s counsel admitted that he
2
There is a handwritten note on the envelope containing the
reports stating: “Opened by John Grigsby on 5-14-98 and copied.”
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had reviewed the recorded copies of the reports.
Even though the
reports did not contain the full addresses of the persons
interviewed by the investigators, all of the interviewees were
identified by name and were well-known to Tracy.
(The persons
interviewed included Tracy’s sister, aunt, former employer, and
Stacy’s mother).
Thus, counsel has failed to demonstrate how he
was prevented from having subpoenas issued for any of these
persons for the final hearing; he did not object to the date for
the final custody hearing or ask for a continuance.
We find no
error even if this argument had been properly preserved.
Tracy’s second objection to the home evaluation reports
deals with the hearsay aspects of the reports.
KRS 403.300
clearly contemplates that custody reports will contain
information that would ordinarily constitute hearsay.
However,
KRS 403.300(2) explicitly authorizes the admission of the reports
and provides procedural safeguards to protect the parties’ due
process rights: ordering notice of the contents of the reports to
the parties and allowing them an opportunity to cross-examine the
investigator and the persons consulted for the report.
Addition-
ally, these reports were prepared pursuant to court order to aid
the court in obtaining information critical to its task of
determining the best interest of the child.
Other jurisdictions
have wrestled with this hearsay issue in court-ordered reports
prepared by a public agency and have held that the procedural
safeguards so mitigate the objectionable aspect of the hearsay as
to tip the scales in support of admissibility:
The parties are afforded sufficient due
process protection by virtue of the
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availability of the right to cross-examine
the court-appointed investigator.
Additionally, a strict adherence to the
normal rules of evidence would greatly reduce
the effectiveness of such reports, which
often contain hearsay . . . . The purpose of
the rules of evidence is to provide
procedures for the adjudication of causes to
the end that the truth may be ascertained and
proceedings justly determined . . . .
Roach v. Roach, 79 Ohio App. 3d 194 202-03, 607 N.E.2d 35, 40
(1992).
In the case before us, Tracy’s attorney was aware of
the contents of the two home evaluation reports approximately two
months before the final hearing, and he had ample opportunity to
subpoena any witness connected with the reports for crossexamination at the hearing.
We hold that the trial court did not
err in refusing to exclude the reports.
Tracy’s final issue concerns the trial court’s decision
to designate Stacy as the primary residential custodian of their
child.
In a custody determination, the primary consideration is
the best interest of the child based on the factors set forth at
KRS 403.270.
As a general rule, a trial court has broad
discretion in determining the best interest of a child when
awarding child custody.
Squires v. Squires, Ky., 854 S.W.2d 765
(1993); Krug v. Krug, Ky., 647 S.W.2d 790, 793 (1983).
Our
standard of review is whether the factual findings of the trial
court are clearly erroneous or whether the trial court abused its
discretion; as the trial court is in the best position to weigh
the evidence, an appellate court may not substitute its own
opinion for that of the trial court.
719 S.W.2d 442, 444 (1986).
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Reichle v. Reichle, Ky.,
The trial court’s initial order referred to the fact
that Tracy had lived in several locations while Stacy continued
to live in the parties’ marital home.
Additionally, Stacy’s
mother would continue to assist in the care of the child as she
had since its birth.
However, Tracy argues that the trial
court’s order is incomplete and that it did not consider all of
the factors set forth at KRS 403.270.
We disagree.
The relevance of each of the factors listed in KRS
403.270 necessarily varies in each case.
In its order overruling
Tracy’s motion to alter or amend the judgment, the trial court
explained that it had weighed several factors, including:
the
stability of Stacy’s household, the fact that the child would
continue to reside in the marital home, the fact that the child
would enjoy the continuity of care and interaction with her
paternal grandparents, and the child’s relationship with her
church and community — counterbalanced with Tracy’s lack of
stability as evidenced by her numerous jobs and residences.
The
court specifically found that the evidence did not demonstrate
that Stacy had acted in a careless or wanton manner in relation
to the May 1998 accident in which the child was injured.
Our
review of the record indicates that the trial court meticulously
considered the statutory criteria and that its factual findings
were supported by substantial evidence.
We also cannot say that
the trial court abused its discretion in awarding joint custody
and in designating Stacy as the primary residential custodian.
For the foregoing reasons, we affirm the judgment of
the Whitley Circuit Court.
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ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John L. Grigsby
Barbourville, Kentucky
Jane R. Butcher
Williamsburg, Kentucky
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