GERALD L. HUMPHREYS v. TARA S. HUMPHREYSAnnotate this Case
October 10, 2003, 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
GERALD L. HUMPHREYS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 01-CI-01991
TARA S. HUMPHREYS
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EMBERTON, CHIEF JUDGE, KNOPF AND JOHNSON, JUDGES.
Gerald L. Humphreys appeals from an order of the
Fayette Circuit Court awarding his ex-wife, Tara S. Humphreys,
sole custody of their minor children.
Gerald and Tara were married on November 27, 1993.
This marriage produced two children, Robert Gerald (R.G.) and
Tara filed for divorce on May 25, 2001.
The day after
filing for divorce, Tara left the marital residence, taking R.G.
Tara never informed Gerald where she took the
Rather, Gerald located Tara, R.G., and Natalie
approximately five days later after obtaining her forwarding
address from the storage company.
On July 17, 2001, the trial court entered an order
temporarily granting Tara sole custody of R.G. and Natalie.
court also awarded Tara temporary child support and exclusive
possession and use of the automobile.
Gerald was granted
temporary timesharing with the children.
The trial court also
ordered a custodial evaluation be conducted by Dr. David
Feinberg in an effort to help resolve the child custody issues.
During the litigation of this matter, Tara and Gerald were able
to reach an agreement concerning the division of marital assets
Unfortunately, the parties could not agree on the
issue of child custody.
The trial court held an evidentiary hearing in this
matter on July 31, 2002, and August 1, 2002, concerning the
issue of child custody.
During this hearing, Tara testified
that Gerald would demonstrate a pattern of obsession with
various issues during the course of their marriage.
that Gerald would obsess over their arguments, a neighbor
smoking, medical issues and his own medications.
Tara, Gerald suffered from constant back problems that required
Tara testified that Gerald would consume
approximately 75 to 100 pills a month, including percocet,
Ultram, Soma, allergy medication and medications for anxiety.
Tara expressed concern over Gerald’s percocet usage because he
would often take ten pills daily, and then go through a monthly
withdrawal from the drug that caused him to stay in bed for two
to three days at a time.
Tara also stated that Gerald would
regularly mix his medications with the children’s medicine, or
even leave his pills within R.G.’s reach.
Tara also testified concerning Gerald’s behavior after
Tara stated that Gerald once withheld
information from her concerning R.G.’s illnesses.
changed the children’s medication schedules without consulting
Also, Tara and her brother-in-law, Forest Godby, both
noted that Gerald would become verbally abusive, hostile, and
belligerent towards them during timesharing exchanges.
Tara’s mother, Joyce Simpson, also testified
concerning Gerald’s behavior relating to his prescription
According to Simpson, after her husband died,
Gerald visited her and requested that she give him any percocet
pills her husband did not consume prior to his death.
stated that she refused to provide Gerald with any percocet.
During his testimony, Gerald stated that he shared
numerous parenting responsibilities with Tara during the
Gerald testified that he prepared the family’s meals,
did activities with both children, fed, clothed and put both
children to bed and took R.G. to the pediatrician 70% of the
Gerald denied Tara’s allegation that he was unable to
control his pain medication usage and asserted that he used his
medication as prescribed.
Gerald further asserted that he is in
complete control of his percocet usage.
Gerald also denied
being violent, hostile, or belligerent towards Tara or any
members of her family during visitation exchanges.
Gerald acknowledged that Tara was “a good mother,” Gerald
expressed concern that Tara was not as responsive to the
children’s medical needs as he.
Gerald believed that Tara
should timely keep him informed when she takes the children to a
doctor and when the children are sick.
The trial court also heard testimony from two
psychologists who evaluated and consulted the parties during the
course of these proceedings.
First, Kelly Hagen testified that
she diagnosed Gerald with depression and anxiety.
that Gerald’s symptoms began soon after Tara left with the
Hagen further testified that Gerald is concerned for
the children’s well-being and is worried about not being able to
interact with the children if they are placed in Tara’s care.
As for her treatment of Gerald, Hagen noted that Gerald
dismissed her suggestion that he work on his anxiety.
also testified that Gerald takes no responsibility for the
demise of the marriage.
Rather, Gerald believes that he is the
victim in Tara’s decision to leave.
Finally, Hagen remarked
that she is unsure about the direction Gerald wants to take
concerning his therapy.
Psychologist Dr. David Feinberg testified concerning
the results of the custodial evaluation he conducted in 2001.
Dr. Feinberg noted that Tara and Gerald were both actively
involved in the lives of their children and both parents had
strong, positive bonds with them.
During the evaluation, Dr.
Feinberg found Tara to be the primary caregiver for the children
because she was more logical and structured.
Tara also appeared
to be more relaxed in her interactions with the children and was
knowledgeable about the children’s developmental stages and
Dr. Feinberg also found that Gerald’s relationship with
R.G. and Natalie was very strong.
However, Dr. Feinberg noted
that Gerald carries his negative feelings into his relationship
with the children.
In his report, Dr. Feinberg cited Gerald’s
prolonged and tearful goodbyes with the children upon their
return to Tara, his verbal exchanges with Tara in front of the
children and his repeated expression of his “need” for the
children all represent examples of negative behavior that could
affect R.G. and Natalie.
Dr. Feinberg recommended that the
trial court award Tara and Gerald joint custody of the children
with Tara’s home as the primary residence.
report conditioned joint custody on Gerald entering counseling
to help him address his overwhelming anxiety, his obsessive
thoughts, and his unhealthy dependence on the children.
Further, Dr. Feinberg noted that Gerald needed considerable
divorce recovery because of his extensive anger with Tara and
his expression of anger in front of R.G. and Natalie.
Feinberg testified that, even if Gerald did not receive
counseling, he would still recommend joint custody.
Finally, several witnesses testified at the hearing on
Gerald’s behalf concerning his abilities as a parent.
Hinkle, Richard Wilkins, Chard Gavitt, and Cheryl Ball all
testified that Gerald’s parenting skills and interactions with
the children were excellent and that Gerald was actively
involved in the lives of his children.
Each witness testified
that Gerald acted appropriately around the children.
After hearing all of the evidence, the trial court
entered its findings of fact, conclusions of law and decree of
dissolution of marriage on August 23, 2002.
In this judgment,
the trial court awarded sole custody of R.G. and Natalie to
Gerald received extensive timesharing rights and was
given the opportunity to take the children to school.
parties were also ordered to complete a parenting workshop.
Further, Gerald was ordered to continue his individual
counseling until both the counselor and his actions show that
counseling was no longer necessary.
After the trial court
rendered this decision, Gerald filed a motion to amend for
On October 21, 2002, the trial court entered a new
In this new judgment, the trial court reaffirmed its
award of sole custody to Tara.
The trial court stated that it
arrived at this decision largely upon concerns about Gerald’s
dependence on prescription painkillers, Gerald’s inability to
rationally or calmly discuss issues concerning the children and
his lack of progress in counseling.
This appeal followed.
On appeal, Gerald brings forward only one assertion of
error for our review.
Gerald argues that the trial court erred
in awarding Tara sole custody of R.G. and Natalie because it
failed to properly apply the statutory standards governing
custodial determinations as contained in KRS 403.270.
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 she abused her
Cherry v. Cherry, Ky., 634 S.W.2d 423 (1982).
“[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,
Thus, it is clear that the trial court has broad
discretion in determining what is in the best interests of a
child in making a custody decision.
Krug v. Krug, Ky., 647
S.W.2d 790 (1983).
KRS 403.270(5) provides that the trial court “may
grant joint custody to the child’s parents . . . if it is in the
best interest of the child.”
In determining whether joint
custody should be granted, the court must consider the best
interest of the child doctrine, as set forth in KRS 403.270(2).
Squires v. Squires, Ky., 854 S.W.2d 765, 769 (1993).
403.270(2) provides in pertinent part as follows:
(2) The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be given
to each parent and to any de facto
custodian. The court shall consider all
relevant factors including:
(a) The wishes of the child's parent or
parents, and any de facto custodian, as to
(b) The wishes of the child as to his
(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
(d) The child's adjustment to his home,
school, and community;
(e) The mental and physical health of all
(f) Information, records, and evidence of
domestic violence as defined in KRS 403.720;
Contrary to Gerald’s assertions, there is no evidence
in the record before us that the trial court failed to apply the
relevant factors listed in KRS 403.270(2).
In its October 21,
2002, written findings of fact, the trial court clearly
considered the best interests of R.G. and Natalie, as Kentucky
While the trial court did not provide specific
findings as to every factor enumerated in KRS 403.270(2), it did
provide specific findings concerning several significant
The trial court extensively considered evidence of
Tara and Gerald’s frequent and positive interactions with the
children and determined that sole custody would not jeopardize
The trial court also found that the
children would be better acclimated and better able to adjust to
their environment in Tara’s care because she has been the
primary care-giver of the children since infancy.
court found Tara to be more stable, to be more willing to place
the needs of the children first, and to have been consistently
responsible for making decisions that are in the childrens’ best
Finally, the court gave considerable attention to KRS
In examining the mental and physical health of
all individuals involved in this custody proceeding, the trial
court considered extensive evidence of Gerald’s dependence on
painkillers and his pattern of withdrawal symptoms from his pain
The evidence clearly demonstrated that, due to his
medication consumption and resulting withdrawal symptoms, Gerald
has been unable to recognize, address and control his anxiety,
obsessive thoughts, and his hostility and anger towards Tara.
The trial court also acknowledged that Gerald has made little
progress in attaining the goals of his individual therapy.
In view of the entire record before us, it is clear to
us that the court considered the best interests of the children
herein by analyzing and applying the relevant factors listed in
The record clearly demonstrates that there was
sufficient evidence for the court to conclude that, at the time
of the hearing, the best interests of the children would not be
served by awarding joint custody to both parents.
we cannot conclude that the trial court abused its discretion by
awarding Tara sole custody of R.G. and Natalie.
For the aforementioned reasons, the judgment of the
Fayette Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Debra Ann Doss
Susan S. Kennedy
Fowler, Measle & Bell, LLP