KAVEN RUMPEL AND KATHIE RUMPEL v. ERIC BARMORE AND BRITTANY R. BARMORE KAVEN RUMPEL AND KATHIE RUMPEL v. ERIC BARMORE AND BRITTANY R. BARMORE
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RENDERED:
SEPTEMBER 21, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002378-MR
KAVEN RUMPEL AND
KATHIE RUMPEL
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 98-FC-004661
ERIC BARMORE AND
BRITTANY R. BARMORE
AND:
APPELLEES
NO. 2000-CA-001648-MR
KAVEN RUMPEL AND
KATHIE RUMPEL
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 98-FC-004661
ERIC BARMORE AND
BRITTANY R. BARMORE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Kaven and Kathie Rumpel (Appellants) appeal
from two separate orders of the Jefferson Family Court, the first
of which awarded custody of Eric Cash Barmore (Cash) to Brittany
and Eric Barmore (Appellees), and the second order, which
prohibited Appellants from removing Cash from the Commonwealth of
Kentucky (Southern Indiana is excepted from this order) “during
any of visitation unless the custodial parents expressly, in
writing and in advance, permit such removal.”
We affirm.
Cash was born on April 25, 1997, to the Appellees.
As
a result of numerous problems, including illegal activity,
domestic violence, and allegations of neglect, Cash was removed
from the custody of Appellees and temporary custody of Cash was
given to the Appellants on April 16, 1998.
Approximately two and
one-half months later, on June 30, 1998, Cash was returned to the
Appellees by order of the juvenile court.
Shortly thereafter, on
July 6, 1998, the Appellants filed their original petition
seeking visitation with Cash.
However, on August 26, 1998,
Appellants filed an amended petition seeking custody of Cash
based upon their status as de facto custodians pursuant to
Kentucky Revised Statutes (KRS) 403.270(1)(a).
The matter was referred to a Domestic Relations
Commissioner who held a hearing on the visitation issue on
October 14, 1998.
The Commissioner filed his eight (8) page
report on December 18, 1998, recommending Appellants be given
specific pendente lite visitation.
However, the Family Court
judge entered an order on December 30, 1998, limiting the
Appellants’ visitation to alternate weekends from Saturday at
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6:00 p.m. until Sunday at 6:00 p.m. and on alternate weeks on
Friday at 6:00 p.m. until Saturday at 6:00 p.m.
Visitation was
later changed (order entered January 20, 1999) to alternate
weekends from Friday at 6:00 p.m. until Monday at 6:00 p.m.
In
the meantime, (January 5, 1999), the Cabinet for Families and
Children closed their juvenile file regarding Appellees.
A two-day hearing was held on the custody petition on
March 31, 1999 and April 1, 1999.
After hearing testimony from
numerous witnesses, reviewing exhibits and depositions, as well
as subsequent motions, memoranda and legal arguments of the
parties, the Family Court judge entered her order of September 3,
1999, in which she awarded sole custody of Cash to Appellees.
Appellants filed appeal No. 1999-CA-002378-MR, contesting the
custody order.
On appeal, Appellants contends the Family Court’s
finding that awarding custody of Cash to Appellees was in his
best interest was clearly erroneous.
After setting forth a
fourteen page chronological listing of events since 1989 which
Appellants believe to be important and relevant as to the best
interest test applied in custody cases (see KRS 403.270),
Appellants then present ten (10) specific incidents which they
claim the Family Court’s findings are clearly erroneous.
We have
reviewed each of Appellants’ alleged erroneous findings, and
having thoroughly reviewed the record and video taped proceedings
of the two-day hearing, find no error.
In the Family Court’s thirteen (13) page order awarding
custody of Cash to the Appellees, the court lists the nineteen
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(19) witnesses who testified either at the hearing or by
deposition, as well as the twenty-four (24) exhibits introduced
at trial.
The judge then thoroughly examined the evidence
presented and reviewed all relevant factors pursuant to KRS
403.270.
As she stated in her order at page 7:
The Court is required pursuant to KRS
403.270 to determine custody in accordance
with the best interest of the child and equal
consideration should be given to each parent.
The Court is to consider all relevant
factors. In this case, the Court is giving
equal consideration to the grandparents
[Appellants] and to the parents [the
Appellees].
As the trial court correctly pointed out in its order KRS
403.270 requires that the circuit court “determine custody in
accordance with the best interests of the child [with] equal
consideration . . . given to each parent[.]”
Additionally,
[t]he court shall consider all relevant
factors including:
(a) The wishes of the child’s parent or
parents, and any de facto custodian, as to
his custody;
(b) The wishes of the child as to his
custodian;
(c) The interaction and interrelationship of
the child with his 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;
(f) Information, records, and evidence of
domestic violence as defined in KRS 403.720;
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(g) The extent to which the child has been
cared for, nurtured, and supported by any de
facto custodian;
(h) The intent of the parent or parents in
placing the child with a de facto custodian;
and
(i) The circumstances under which the child
was placed or allowed to remain in the
custody of a de facto custodian, including
whether the parent now seeking custody was
previously prevented from doing so as a
result of domestic violence as defined in KRS
403.720 and whether the child was placed with
a de facto custodian to allow the parent now
seeking custody to seek employment, work or
attend school.
As noted in KRS 403.270, the list is not necessarily exclusive.
The court is only required to consider these factors; the statute
does not require the court to make findings of fact as to each
factor.
In McFarland v. McFarland, Ky. App., 804 S.W.2d 17
(1991), we determined that the court’s simple statement that “the
Respondent is the fit and proper person to have custody of the
three minor children” was less than adequate under the
requirements of KRS 403.270, and remanded for more specific
findings.
However, in the case under consideration, the findings
are extensive and the record reflects that substantial, albeit
conflicting, evidence was presented to the court.
“Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.”
CR 52.01.
“[T]he reviewing court’s basic concern is whether
there is sufficient evidence, as detailed by the record, to
support the decision of the trial court.
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If so, then the trial
court’s decision is not clearly erroneous.”
Taylor v. Taylor,
Ky., 591 S.W.2d 369, 370 (1979).
We agree with Appellees that Appellants are attempting
to re-litigate this case on appeal.
Because several of the facts
were in dispute below, it is possible that another court would
have made different findings.
However, we will not substitute
our judgment for that of the circuit court unless a manifest
abuse of discretion has occurred.
S.W.2d
387 (1968).
See, Smith v. Smith, KY., 429
The test of abuse of discretion is “whether
the trial judge’s decision was arbitrary, unreasonable, unfair or
unsupported by sound legal principles.”
Commonwealth v. English,
Ky., 997 S.W.2d 941, 945 (1999) (citations omitted).
We are not
persuaded that the Family Court’s decision failed this test.
Having reviewed the entire record, we cannot find that the Family
Court failed to give adequate consideration to all the relevant
factors before it awarded custody to the Appellees.
The court’s
finding that Cash’s interests would be best served by remaining
with his natural parents was supported by substantial evidence.
Thus, we find no clear error in any of the court’s factual
findings and no abuse of discretion in its custody decision.
A secondary issue in this appeal is that the trial
court refused to accept “complete criminal histories” of the
Appellees as evidence during the evidentiary hearing held in this
case.
A review of the record indicates that Appellants attempted
to introduce into the record numerous traffic violations of the
Appellees dating back to May 7, 1989.
These violations involved
charges for no insurance, improper registration plates, speeding,
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no operator’s license, reckless driving, attempting to elude,
operating on a suspended license, failure to register a transfer,
violation of vehicle exhaust testing, failure to notify of a
change of address, etc.
While these violations were excluded,
the court did permit testimony as to more serious criminal
activity such as driving under the influence, assaults, drug
offenses, and domestic violence.
The court’s order addressed the
past pattern of behavior of Appellees, both criminal and
otherwise, which it deemed significant and relevant to the
custody issue.
We find no abuse of discretion in this matter and
further find that if any error occurred, which we do not believe
did, that it was harmless error and would be no basis for
reversal.
CR 61.01.
As to Appellants’ second appeal (No. 2000-CA-001648),
relating to summer visitation and prohibiting Appellants from
removing Cash from Kentucky or Southern Indiana, we affirm.
The court considered Appellants’ motion to take Cash to
South Carolina for vacation during a hearing held on May 30,
2000.
On June 1, 2000, the court entered its order denying the
motion noting that it considered the parties’ arguments.
Thereafter, the court entered its June 20, 2000, order which is
the subject of this appeal.
The order stated that:
On Motion of the respondent, Brittany
Barmore, and the Court being sufficiently
advised,
IT IS HEREBY ORDERED that the
respondents, or their agents, are prohibited
from removing Cash Barmore from the
Commonwealth of Kentucky during any periods
of visitation unless the custodial parents
expressly, in writing and in advance, permit
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such removal, Southern Indiana excluded from
order.
Appellants concede that trial court orders dealing with
matters such as visitation will not be disturbed absent a showing
of an abuse of discretion.
CR 52.01.
Appellants cite Bales v.
Bales, Ky., 418 S.W.2d 763 (1967), which set the standard for
appellate review in such cases:
We review this case within the framework
of CR 52.01 which prescribes that the
findings of fact by the trial court shall not
be set aside unless ‘clearly erroneous.’ We
are also mindful of the principle that the
chancellor’s determination in matters of
custody and visitation will not be disturbed
absent a showing of an abuse of his judicial
discretion. Moreover, in custody and
visitation cases, the doors of the court
remain open for the purpose of modifying
orders upon a showing of changed conditions
requiring such modification for the best
interests and welfare of the child involved.
KRS 403.070.
Id. at 764.
As mentioned earlier in the discussion of the first
appeal referencing the Smith case, “because several of the facts
were in dispute below, it is possible that another court would
have made different findings.
However, we will not substitute
our judgment for that of the circuit court unless a manifest
abuse of discretion has occurred.”
While it is unfortunate that
the parties hereto cannot come to amicable resolutions concerning
the custody and visitation of Cash, and each party can easily
point out glaring faults and inadequacies of the other, the
Family Court’s order in this matter is supported by substantial
evidence and is not clearly erroneous nor an abuse of discretion.
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For the foregoing reasons, the orders of the Jefferson
Family Court, which are the subject of Appeal Nos.
1999-CA-002378-MR and 2000-CA-001648-MR, are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES, IN APPEAL
NO. 1999-CA-002378-MR:
Elise Givhan Spainhour
Shepherdsville, KY
JoAnne Lynch
Christopher Polk
Louisville, KY
BRIEF FOR APPELLEE, BRITTANY
BARMORE IN APPEAL NO. 2000-CA1648-MR:
JoAnne Lynch
Christopher Polk
Louisville, KY
No brief filed for Appellee,
Eric Barmore in Appeal No.
2000-CA-001648-MR
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