TARSHA MOORE-SEMAKULA v. ANGELO MOORE
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000962-ME
TARSHA MOORE-SEMAKULA
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JERRY J. BOWLES, JUDGE
CIVIL ACTION NO. 93-FC-001947
v.
ANGELO MOORE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
Tarsha Moore-Semakula appeals from a
Jefferson Family Court order that granted primary residential
custody of the daughters born to the marriage of the parties to
their father, Angelo Moore.
Angelo and Tarsha were married in Louisville in 1991.
The two children at issue in this case, Jasemine and Charity,
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
were born in 1989 and 1991, respectively.
Tarsha and Angelo
separated in 1993, and a final decree dissolving their marriage
was entered on November 10, 1993.
The decree specified that the
“issues of custody and control of the two minor children and of
property
distribution
shall
be
reserved.”
Angelo
was
to
continue paying $73.00 per week in child support.
At
the
undergraduate
time
at
the
become a teacher.
of
the
University
divorce,
of
Tarsha
Louisville,
was
an
studying
to
In 1999, she was offered a teaching position
in Milwaukee, and moved there with her daughters.
After they
had been living in Milwaukee for two years, Tarsha was accepted
into
a
Master
of
Fine
Arts
in
Creative
Writing
program
in
Minneapolis-St. Paul.
She and her daughters moved to Minnesota
in
order
September
2001
in
for
her
attend
graduate
school.
Tarsha experienced serious financial difficulties at this time
because she did not have the proper certification to work as a
substitute teacher in Minnesota, nor was she receiving any child
support from Angelo.
She contacted Angelo for help, but he was
only able to send her a few hundred dollars.
Tarsha and Angelo
agreed that Jasemine and Charity would move to Louisville and
live with their father until Tarsha had resolved her financial
problems.
LaCole
have
Angelo
one
had
child
meanwhile
together
LaCole’s previous marriage.
-2-
remarried;
and
two
he
other
and
his
wife
children
from
Jasemine and Charity moved into their father’s house
in Louisville and started school in October 2001.
On May 16,
2002, Angelo filed a motion in Jefferson Family Court for a
change in physical custody, stating that he wanted to prevent
Tarsha
from
keeping
the
children
Minnesota during the summer.
if
they
visited
her
in
Meanwhile, the girls returned to
Minnesota to live with their mother, who had recently remarried.
After an attempt at mediation failed because neither
parent contacted the mediator, a hearing on Angelo’s motion was
held in Jefferson Family Court on February 27, 2003.
The family
court judge also conducted individual in camera interviews with
the two girls.
On April 7, 2003, the family court entered an order
directing that the children would reside with their mother for
the remainder of the school year.
The order further specified
that
half
they
would
spend
their
the
father
first
and
the
of
their
second
2003
half
summer
vacation
with
with
their
mother.
Beginning with the 2003-04 school year, the children
were to reside primarily with their father, and spend Christmas
and
spring
break
periods
with
their
mother.
All
subsequent
summers were to be spent with their mother, with the father
granted a two-week visitation period during those times.
In
arriving at its decision to award primary residential custody to
Angelo, the court relied heavily on the in camera interview with
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Jasemine.
In the interview, Jasemine described her troubled
relationship with her mother, and expressed her desire to live
with her father.
Jasemine stated that her mother had called
her a “lying whore” and a “slut,” had told her that she wished
she
had
never
given
birth
to
her,
and
had
stated
that
if
Jasemine went to live with her father she would have nothing
more
to
do
statements.
with
her.
Tarsha
did
not
deny
making
these
Jasemine also said that she had attempted to commit
suicide, although Tarsha denied any knowledge of this episode.
Jasemine
told
the
court
that
she
preferred
living
at
her
father’s house and that she got along well with her stepsisters.
Charity also said she liked living with her stepsisters.
Both
girls expressed reservations about their mother’s remarriage.
On appeal, Tarsha argues that the family court erred
on both procedural and substantive grounds in awarding primary
custody to Angelo.
Tarsha does not challenge the accuracy of
the family court’s findings of fact.
Rather, she contends that
the court abused its discretion in failing to weigh the evidence
before it according to the mandates of the relevant statutes.
Tarsha argues that the court’s failure to specify which legal
standards or statutory factors it applied in arriving at its
custody determination is a per se abuse of discretion.
She
urges us to conduct a de novo review of her claims on the ground
-4-
that the family court’s interpretation and application of the
statutes is inadequate as a matter of law.
We have reviewed Tarsha’s claims but do not agree with
her
that
they
Specifically,
require
Tarsha
de
argues
novo
that
review
the
by
this
Court.
family
court
failed
adequately to consider the effects of Angelo’s past history of
domestic violence, that the court failed to make the threshold
findings necessary to justify a modification of custody, and
finally,
that
the
factual
findings
of
the
court
do
not
adequately weigh the statutory “best interests of the child”
factors.
statutory
Fundamentally,
interpretation,
these
but
claims
concern
are
the
not
matters
sufficiency
of
of
the
evidence and the weight that was given to certain portions of
the
evidence
by
the
family
court.
We
therefore
apply
the
“clearly erroneous” standard to review the factual findings of
the family court.2
Findings of fact are clearly erroneous if
they are manifestly against the weight of the evidence.3
the
trial
court
is
in
the
best
position
to
Since
evaluate
the
testimony and to weigh the evidence, an appellate court should
not substitute its own opinion for that of the trial court.4
Ultimately, a trial court’s decision regarding custody will not
2
See Ky. R. Civ. Proc. (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444
(Ky. 1986).
3
See Wells v. Wells, 412 S.W.2d 568, 570 (Ky. 1967).
4
See Reichle, supra note 2.
-5-
be disturbed absent an abuse of discretion.5
implies
that
the
trial
court’s
Abuse of discretion
decision
is
unreasonable
or
unfair.6
Tarsha claims that the court failed to make mandatory
findings
about
the
impact
of
Angelo’s
violence on Jasemine and Charity.
Kentucky
Revised
Statutes
(KRS)
history
of
domestic
She points specifically to
403.270(2)(f),
which
directs
the court to consider “[i]nformation, records, and evidence of
domestic violence as defined in KRS 403.720” in determining the
best interests of the child and KRS 403.270(3) which states:
The
court
custodian
child.
court
shall
that
If
shall
not
does
consider
not
domestic
affect
violence
determine
conduct
the
his
and
extent
of
a
proposed
relationship
abuse
to
is
which
to
the
alleged,
the
the
domestic
violence and abuse has affected the child and the child’s
relationship to both parents.
In
admitted
that
its
order,
there
the
had
family
been
court
incidents
noted
of
that
physical
Angelo
violence
against Tarsha during the course of their marriage, and that he
had been convicted of an assault on his present wife.
Tarsha
contends,
however,
that
KRS
403.270
requires
the court to make specific factual findings regarding the impact
of domestic violence on the children.
5
6
While the court must
See Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
See Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
-6-
consider all the statutory factors, it need not make specific
findings pertaining to each factor, only to those it determines
are relevant.
consider
“In child custody cases, the trial court must
all
relevant
factors
including
those
specifically
enumerated in KRS 403.270(1)[now (2)] in determining the ‘best
interests of the child.’
In so doing, it is mandatory under CR
52.01 that the facts be so found specifically.”7
The alleged
failure on the part of the family court judge to make adequate
findings
of
fact
on
the
issue
of
domestic
violence
was
not
brought to his attention as required by Kentucky Rules of Civil
Procedure (CR) 52.02 or CR 52.04; consequently, the issue was
waived.8
Tarsha’s
argument
that
it
was
not
her
role
or
responsibility to ask for specific findings on the impact of
domestic violence is unsupported; there is no indication that
the requirement of a written request or motion under CR 52.04 is
waived as to this particular section of KRS 403.270.9
Although we agree that Angelo’s history of domestic
violence
supported
is
an
the
issue
family
of
grave
court’s
concern,
substantial
determination
7
that
evidence
Jasemine’s
McFarland v. McFarland, 804 S.W.2d 17, 18 (Ky.App. 1991) (emphasis
supplied).
8
See Cherry, supra note 5.
9
See id. (“The trial judge did not make as in-depth findings of fact as could
have been made so as to clearly comply with CR 52.01; however, CR 52.04
provides: ‘A final judgment shall not be reversed or remanded because of the
failure of the trial court to make a finding of fact on an issue essential to
the judgment unless such failure is brought to the attention of the trial
court by a written request for a finding on that issue or by a motion
pursuant to Rule 52.02.’”)
-7-
relationship with her mother was causing “considerable stress
and trauma” justifying a change of custody.
“In reviewing the
decision of the trial court, . . . the test is not whether the
appellate court would have decided [the case] differently, but
whether the findings of the trial judge were clearly erroneous
or that he abused his discretion.”10
The court did not abuse its
discretion in determining that the evidence of Angelo’s violent
behavior (which the record shows was never directed at either of
the children) was not as compelling as the testimony elicited
during the in camera interview with Jasemine.
Tarsha next contends that the family court’s order is
impermissibly
vague
because
it
fails
to
indicate
whether
Angelo’s motion was treated as a custody modification request or
as an initial determination of custody.
As we have already noted, there was no formal courtordered
custody
arrangement
established
at
the
time
dissolution of Tarsha and Angelo’s marriage in 1993.
the
record
shows
that
the
children
were
in
of
the
However,
Tarsha’s
primary
residential custody, with Angelo’s acquiescence, from the time
of the divorce in 1993 until 2001.
“[a]s
used
custody,
parties.”
10
in
this
whether
section,
ordered
by
KRS 403.340(1) states that
“custody”
a
court
means
or
sole
agreed
to
or
joint
by
the
Surely this arrangement, where the children lived
Id.
-8-
with Tarsha without any challenge from Angelo for eight years,
qualifies
as
a
custody
agreement
between
the
parties.
Furthermore, Angelo’s motion requested a “change of custody from
my
former
wife.”
This
characterization
of
the
action
went
unchallenged by Tarsha.
Tarsha
further
argues
that,
assuming
this
was
a
modification of custody, the court failed to find the necessary
change
in
403.340.
circumstances
to
justify
a
modification
under
KRS
The statute provides in pertinent part:
[T]he court shall not modify a prior custody decree unless
after hearing it finds, upon the basis of facts that have
arisen since the prior decree or that were unknown to the
court at the time of entry of the prior decree, that a
change has occurred in the circumstances of the child or
his custodian, and that the modification is necessary to
serve the best interests of the child.
When determining if
a
a
change
has
occurred,
and
whether
modification
of
custody is in the best interests of the child, the court
shall consider the following:
(a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family of
the petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine the
best interests of the child;
-9-
(d)
Whether
the
child's
present
environment
endangers
seriously his physical, mental, moral, or emotional health;
(e) Whether the harm likely to be caused by a change of
environment is outweighed by its advantages to him; and
(f) Whether the custodian has placed the child with a de
facto custodian.
Tarsha contends that the requirements of (b) were not
met because she consented only to a temporary modification of
the custody agreement when she allowed Jasemine and Charity to
live
with
their
father.
Nonetheless,
the
record
contains
sufficient evidence of a change in circumstances to support the
court’s
modification
of
custody.
Although
Tarsha
describes
Jasemine’s account of her suicide attempt and her arguments with
her mother as the “whims” of a teenage girl, the evidence also
supports the view that Jasemine’s physical and emotional health
was endangered.
Tarsha’s final argument is that the court did not give
enough weight to Angelo’s history of domestic violence and his
failure to pay child support, and that it placed undue weight on
its
interview
with
Jasemine.
We
acknowledge
that
Angelo’s
failure to pay child support placed tremendous strain on Tarsha.
We also note, however, that there is no evidence in the record
that she ever attempted to enforce the child support provisions
of the dissolution decree.
Furthermore, there is no maximum or
-10-
minimum
number
of
factors
that
must
be
present
in
order
to
justify a modification of custody, nor must certain factors be
given more weight than others.
In Sherfey v. Sherfey,11 for
example, custody was awarded to grandparents primarily on the
basis of the child’s strongly-stated desire to continue living
with
them.
“[W]e
are
not
prepared
to
define
precisely
the
quantum of proof necessary to justify awarding the care, custody
and control of a minor to one parent over the other.”12
reiterate
that
if
Tarsha
believed
that
the
family
We
court’s
findings of fact were inadequate, a proper means of recourse was
through a written request or motion pursuant to CR 52.02.
Because the factual findings of the family court were
supported by substantial evidence, and because Tarsha failed to
request more detailed findings, the family court’s custody order
is affirmed.
ALL CONCUR.
11
12
74 S.W.3d 777 (Ky.App. 2002).
Cherry, supra note 5.
-11-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tarsha Moore-Semakula, pro se
St. Paul, Minnesota
Charles R. Meers
Louisville, Kentucky
REPLY BRIEF FOR APPELLANT:
Jennifer M. Macaulay
Pro hac vice
St. Paul, Minnesota
Suzanne Cassidy
Covington, Kentucky
-12-
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