TAMARA DAWN WATSON WILKINSON v. DANIEL CAIN WILKINSON
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RENDERED:
JANUARY 14, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002335-MR
TAMARA DAWN WATSON WILKINSON
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 02-CI-00190
v.
DANIEL CAIN WILKINSON1
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Tamara Dawn Watson Wilkinson has appealed from
the findings of fact, conclusions of law, and decree of
dissolution of marriage of the Casey Circuit Court entered on
October 6, 2003.
Having concluded that the trial court failed
to make specific findings of fact regarding the custody of the
children, leaving this Court unable to determine whether the
1
Daniel’s middle name is listed as “Kain” in the circuit court record, but
listed as “Cain” in this appeal.
trial court properly applied the factors of KRS2 403.270(2)3 in
making the custody award, we must vacate that portion of the
2
Kentucky Revised Statutes.
3
KRS 403.270(2) states:
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 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
403.270;
(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 by KRS 403.270 and whether the
child was placed with a de facto
custodian to allow the parent now seeking
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decree of dissolution and remand for further proceedings and
specific findings to be entered as required by CR4 52.01.5
Tamara and Daniel were married on April 4, 2000.
Daniel filed a petition for dissolution of marriage in the Casey
Circuit Court on September 20, 2002, and Tamara filed a response
on October 12, 2002.
Daniel alleged in his petition that the
parties separated in May 2001, while Tamara alleged in her
response that they separated on September 10, 2002.6
4
5
custody to seek employment, work, or
attend school.
Kentucky Rules of Civil Procedure.
CR 52.01 provides:
In all actions tried upon the facts
without a jury or with an advisory jury, the
court shall find the facts specifically and
state separately its conclusions of law thereon
and render an appropriate judgment; and in
granting or refusing temporary injunctions the
court shall similarly set forth the findings of
fact and conclusions of law which constitute
the grounds of its action. Requests for
findings are not necessary for purposes of
review except as provided in Rule 52.04.
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. The
findings of a commissioner, to the extent that
the court adopts them, shall be considered as
the findings of the court. If an opinion or
memorandum of decision is filed, it will be
sufficient if the findings of fact and
conclusions of law appear therein. Findings of
fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56 or
any other motion except as provided in Rule
41.02.
6
At the evidentiary hearing held on August 28, 2003, Tamara testified that
they had continued to share a residence and had had sexual relations as
recently as three weeks before the hearing. Daniel testified that they had
not had sexual relations for more than 10 months before the hearing.
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It is undisputed that there were two children born to
the parties prior to the marriage, namely Alex Wilkinson, born
May 16, 1996, and Jordan Wilkinson, born January 30, 1998.
Daniel and Tamara each sought sole custody of the children.
Tamara also testified at the evidentiary hearing that she was 14
weeks pregnant and that Daniel was the father of her unborn
child.
She testified that she and Daniel had continued to have
sexual relations during the period of their separation and that
no one else could have been responsible for her pregnancy.
Daniel claimed that he had not had sexual relations with Tamara
for over ten months.7
A final hearing was held in this matter on August 28,
2003.
The hearing lasted approximately 73 minutes, and the
parties were the only witnesses.8
At the conclusion of the
final hearing, the trial court, without motion of either party,
amended the temporary agreed custody order by granting sole
7
Tamara asked the trial court to order a blood test and the trial court
stated that counsel could file the appropriate motion. No motion was filed.
The only indication in the record of the birth of the child is Tamara’s
statement in her brief that Alex had expressed a desire to live with her but
that the “two other children are much too young to make this decision.”
8
The trial court administered the oath to the additional witnesses that were
present to testify on behalf of both parties, but the trial court only
allowed the parties to testify at the hearing. On September 2, 2003, the
trial court entered an order allowing Daniel 14 days from the date of the
hearing to complete taking his proof by deposition and allowing Tamara 14
days from that date to complete taking her proof by deposition. Neither
party supplemented the record within the given time and on October 2, 2003,
the trial court ordered the case submitted for a final decree.
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custody of the parties’ minor children to Daniel and limiting
Tamara to supervised visitation twice a month.9
On October 6, 2003, the trial court entered the
findings of fact, conclusions of law, and decree of dissolution
of marriage.
The trial court found that it was in the best
interests of the two children for Daniel to have their sole
custody.
Tamara was granted supervised visitation10 with the
children twice a month,11 and she was prohibited from visiting
“the children at school, [Daniel’s] residence or anywhere
else.”12
This appeal followed.
Tamara, pro se, seeks reversal of the trial court’s
custody award.13
In our review, we must determine (1) whether
9
On November 6, 2002, a temporary agreed order had been entered granting the
parties joint custody of their minor children, with Daniel having residential
custody from 6:00 p.m. on Sunday to 6:00 p.m. on Friday and Tamara having
residential custody from 6:00 p.m. on Friday to 6:00 p.m. on Sunday.
10
The trial court determined that Tamara’s “visitation should be supervised
by and occur at the Casey County Office of the Cabinet for Families and
Children, Department of Community Based Services, at the convenience of the
Cabinet pending the further Orders of [the trial court].”
11
The trial court ordered that because Tamara had no income that she would
not be required to pay child support pending further orders of the court.
12
Tamara filed a motion on October 11, 2003, for a change of custody, which
was never heard.
13
Daniel failed to file a reply brief, and we could view such failure as a
confession of error under CR 76.12(8)(c) which provides:
If the appellee’s brief has not been
filed within the time allowed, the court may:
(1) accept the appellant’s statement of the
facts and issues as correct; (ii) reverse the
judgment if appellant’s brief reasonably
appears to sustain such action; or (iii) regard
the appellee’s failure as a confession of error
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the trial court made specific findings of fact as required under
CR 52.01; (2) whether the factual findings were clearly
erroneous; (3) whether the trial court properly considered the
factors set out in KRS 403.270(2) in stating its conclusions of
law; and (4) whether the trial court abused its discretion in
making its award.
We will first address whether the trial court
made sufficient findings of fact under CR 52.01 to support its
award of sole custody with supervised visitation.
“The
cornerstone of CR 52.01 is the trial court’s findings of fact,”14
as they give this Court ”a clear understanding of the grounds
and basis of the trial court’s judgment . . . .”15
In domestic
relations cases,16 there is no jury and the trial court as the
sole finder of fact must find the facts “specifically and state
separately its conclusions of law thereon and render an
appropriate judgment . . . .”17
This Court is constrained by CR 52.01 from
and reverse the judgment without considering
the merits of the case.
However, we have reviewed the court record in full and we will give proper
deference to the trial court’s factual findings.
14
Stafford v. Stafford, 618 S.W.2d 578, 580 (Ky.App. 1981).
15
Id.
16
Aton v. Aton, 911 S.W.2d 612, 615 (Ky.App. 1995).
17
CR 52.01.
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overturning the findings of the trial court, if supported by
substantial evidence and thus not clearly erroneous.18
“‘Substantial evidence’ is evidence of substance and relevant
consequence sufficient to induce conviction in the minds of
reasonable people.”19
The clearly erroneous standard protects
against actions being “tried anew upon appeal.”20
This Court
exercises caution in reversing a custody award of the trial
court.
In this case the trial court’s findings regarding
custody and visitation were clearly not sufficient, as they do
not give this Court a proper understanding of the basis of the
custody award nor do the conclusions provide the law the trial
court relied on to reach its decision.
The trial court’s
findings as to custody were as follows:
(8)
The Court finds that the Respondent,
[Tamara Dawn Watson Wilkinson], suffers
from anxiety attacks, has had at least
one nervous breakdown, has been
involuntarily committed for a mental
evaluation on more than one occasion
the last being by her sisters, has had
repeated DUI convictions including a
felony, and that the children were
removed from her care by Social
Services in Fayette County, Kentucky.
18
Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2002).
19
Id.
20
Stafford, 618 S.W.2d at 579.
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(9)
The Court finds that the children may
be endangered and/or not receive proper
care and supervision while in the care
of the Respondent, [Tamara Dawn Watson
Wilkinson].
(10) The Court finds that it is in the
children’s best interest that the
Petitioner, [Daniel Cain Wilkinson],
have custody of the minor children,
[Jordan Wilkinson], born January 30,
1998, and [Alex Wilkinson], born May
16, 1996.
(11) The Court finds that the Respondent,
[Tamara Dawn Watson Wilkinson], should
have supervised visitation with the
children twice a month. Said
visitation should be supervised by and
occur at the Casey County Office of the
Cabinet for Families and Children,
Department of Community Based Services,
at the convenience of the Cabinet
pending the further Orders of this
Court.
(12) That except for the visitation
specified above, the Respondent,
[Tamara Dawn Watson Wilkinson], should
not go about the children at school,
Petitioner’s residence or anywhere else
pending the further orders of this
Court.
. . .
(19) The Court finds that the testimony of
the Respondent, [Tamara Dawn Watson
Wilkinson], to be evasive and
untruthful in many respects.
The trial court stated no conclusions of law regarding
custody, but it did state in its decree of dissolution of
marriage as follows:
-8-
(2)
That the Petitioner, [Daniel Cain
Wilkinson], is hereby awarded custody
of the minor children, [Jordan
Wilkinson], born January 30, 1998, and
[Alex Wilkinson], born May 16, 1996.
(3)
That the Respondent, [Tamara Dawn
Watson Wilkinson], shall have
supervised visitation with the children
twice a month. Said visitation shall
be supervised by and occur at the Casey
County Office of the Cabinet for
Families and Children, Department of
Community Based Services, at the
convenience of the Cabinet pending the
further Orders of this Court.
(4)
That except for the visitation
specified above, the Respondent,
[Tamara Dawn Watson Wilkinson], shall
not go about the children at school,
Petitioner’s residence or anywhere else
pending the further orders of this
Court.
Our review of the record shows that at the final
hearing both parties testified concerning their desire to have
custody of the children.
However, the trial court’s findings
were limited to evidence about Tamara, a portion of which were
clearly erroneous.
The trial court stated at the hearing that
it found Tamara’s testimony not to be credible, but it did not
make any finding to this effect.
The trial court made no
findings regarding Daniel’s interaction with the children; his
mental or physical health; his home; his family; his employment;
his education, interests and lifestyle; and his fitness to have
sole custody of the children.
-9-
This Court has reviewed the record, including the
videotape of the August 28, 2003, final hearing.
Daniel
appeared to contradict himself and to be evasive during cross
examination.
Tamara answered all the questions asked of her,
even those asked by the trial court, although it was apparent
that the trial court was not convinced of her veracity.
The trial court found that Tamara had a history of
mental illness; however, there was no expert testimony regarding
her illness, nor any proof that her anxiety attacks directly
affected the children.
Tamara testified that she was under a
physician’s care, but that her condition was controlled and that
she only took one-half of a Xanax at bedtime.
Tamara’s
testimony that she was concerned that Daniel was illegally using
Oxycontin went unrefuted by Daniel.
The trial court also found that Tamara had repeated
DUI convictions.
However, these convictions were over 12 years
old at the time of the hearing, and all of the convictions had
occurred prior to the birth of the children.
Since there was no
evidence that this conduct by Tamara affected her relationship
with the children, this finding was clearly erroneous.21
While
Daniel claimed that Tamara continued to have problems with
alcohol, she denied this accusation; and the trial court failed
21
KRS 403.270(3).
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to make a finding as her having any current problems with
alcohol.
The trial court further found that the children had
been removed from Tamara by Social Services.
Tamara testified
that this incident occurred at a time when she and the children
were living in a spouse abuse shelter and she claimed the only
reason the children were placed in the care of Social Services
was because she was temporarily incarcerated.22
Daniel testified that he and the children lived
with his mother and that the children slept together and he
slept on a mattress on the floor.
Tamara introduced into
evidence pictures of Daniel’s mother’s house, which Daniel
authenticated, but Daniel claimed the pictures depicted the
house messier than normal.
One of the pictures showed a large
amount of dog feces on newspaper covering the floor of one room
of the house, which Daniel testified was accurate.
Tamara
testified that other people stayed at Daniel’s mother’s house on
a regular basis, including Daniel’s siblings and their children,
and that it was common for the children on a school night not to
get to sleep until 11:30 p.m. or midnight.
Tamara testified that from February 2003 to June
22
Tamara claims she was held in contempt of court for an incident in the
courtroom at a hearing related to a menacing charge brought by a police
officer against her arising out of the officer’s investigation of Tamara’s
allegation of domestic violence by Daniel.
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2003, she had moved in with Daniel so she could be with the
children during the week.
There was undisputed testimony that
during this time, Tamara took the children to school several
days and that on many occasions she purchased food for the
children.
Tamara further provided undisputed testimony that she
took Alex to the eye doctor in May 2003, when he was fitted for
glasses.
There was no testimony as to how Daniel provided for
the children’s needs.
Rather, there was testimony that Daniel’s
mother provided shelter for the children, that Tamara provided
their food, and that both Tamara and Daniel’s mother provided
the children’s transportation.
Tamara further testified that she had secured a
government-provided, three-bedroom apartment in Lexington, where
the boys had their own rooms; however, they normally slept with
her.
She further testified that she took the children swimming
when they visited her in Lexington.
There was no testimony
offered as to activities that Daniel and the children
participated in together.
Tamara further testified that the
trip from her apartment in Lexington to Daniel’s mother’s home
is approximately 130 miles round-trip and that Daniel never
assisted with the transportation during visitation.
Daniel testified that he had difficulty with
Tamara abiding by the visitation schedule, but he also
acknowledged that there were times he denied visitation to
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Tamara because she was late.
While Daniel mentioned that he
thought Tamara had arrived for visitation intoxicated on a few
occasions, he later stated that his main reason for denying
visitation was that she arrived late.
Daniel also testified
that he was afraid for the children to be with Tamara, but he
gave no specific reasons.
Further, it appears from Tamara’s
undisputed testimony that, only weeks prior to the hearing,
Daniel left the children in her care quite often.
Daniel
claimed that Tamara screamed at the children, which she denied.
Tamara claimed that Daniel cursed in front of the children,
which was not disputed.
Tamara further claimed that Daniel
kicked the children, while Daniel claimed that he never hit the
children.
This case presents a family with many problems.
Both
Daniel and Tamara have failed to provide adequately for their
children and a substantial amount of government assistance has
been required.
Both parents accuse the other of substance abuse
and abusive behavior.
Evidently, the parties’ low income has
affected the practicing of this case.
While each party had
counsel at the evidentiary hearing, no additional steps were
taken to present evidence after the hearing.23
23
We note our concern that while the parties had witnesses at the hearing,
the trial court refused to hear any additional live testimony, and ordered
the parties to supplement the hearing with deposition testimony. In light of
the parties’ low income, the expenses of depositions were probably
prohibitive.
-13-
As to Tamara’s pregnancy, it would certainly seem that
Daniel’s refusal to assume responsibility for allegedly
fathering the child Tamara was carrying would have been relevant
to his fitness as a parent.
From our review of the record, it
is obvious that final custody was determined prematurely.
This
family has had significant involvement with various social
service agencies, yet there was no home evaluation ordered, and
despite allegations of substance abuse and mental impairment, no
psychological or counseling reports were introduced as evidence.
There was also testimony of as many as ten occurrences of
domestic violence with EPO’s being issued.
While Tamara has
attempted to file some of these documents as attachments to her
brief, none of these records was admitted as evidence before the
trial court.24
In light of the KRS 403.270(2) factors that the
trial court should have considered, the testimony in the record
clearly shows that the trial court’s findings were not
sufficient.
After a trial court has made the findings required by
CR 52.01, it is then required to apply the law to the facts and
its decision is not to be disturbed unless it constitutes an
abuse of discretion.25
However, from the scant findings in this
case, we are unable to determine whether the trial court applied
24
KRS 403.270(3).
25
Sherfey, 74 S.W.3d at 782-83.
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the appropriate law set out in KRS 403.270(2) for determining
child custody.
KRS 403.270(2) requires the trial court to determine
custody based on the best interests of the child, while
considering both parents equally and considering all relevant
factors.
The trial court stated that its custody determination
was based on the best interests of the children, but it failed
to support this determination by providing specific findings and
by applying the KRS 403.270(2) factors in its conclusions of
law.
Thus, we hold this award to be a clear abuse of
discretion.
“The ultimate or conclusory fact to be found is a
determination of the ‘best interests of the child.’
However,
before the factual conclusion can be reached the court is to
consider all relevant factors including those specifically
enumerated in the statute.”26
While, the trial court stated in
its findings that its custody award was based on the best
interests of the children, not one of the nine factors set out
in KRS 403.270 was addressed specifically in the trial court’s
order.
The only factor that appears to have been considered by
the trial court is KRS 403.270(2)(e) and this consideration was
erroneously limited to Tamara’s mental health.
From the
testimony of the parties as set out above, all nine factors were
26
Stafford, 618 S.W.2d at 580.
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relevant.
We do not contend that these are the only factors
that the trial court should have considered in making its award,
but they are clearly relevant as evidenced by the testimony of
record and the trial court should have considered no less in
making its findings in this case.
Furthermore, even if Daniel were to be granted sole
custody, it was an abuse of discretion for the trial court to
restrict Tamara’s visitation and to require it to be supervised.
The parties had been abiding by a temporary agreed order,
wherein Tamara had the children every weekend.
There was
testimony from both parties that they had violated the agreement
at times, but it appears, overall, Tamara was allowed to spend
more time with the children than allowed under the temporary
agreement.
On the day of the hearing, the trial court
unilaterally amended the temporary order, significantly reducing
Tamara’s visitation and requiring it to be supervised.
This
restriction became a permanent visitation award when the trial
court entered its final order on October 6, 2003.
A
determination of reasonable visitation is a matter that must be
based on the particular circumstances of each case.27
There was
no evidence to support the trial court’s restricted and
supervised visitation award in this case, and thus, we hold such
restrictions to be an abuse of discretion.
27
Drury v. Drury, 32 S.W.3d 521, 524 (Ky.App. 2000).
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For the reasons set forth above, we vacate the
trial court’s order awarding sole custody of the parties’ minor
children to Daniel, with restricted and supervised visitation to
Tamara, and remand this matter for further proceedings and
specific findings to be entered in compliance with CR 52.01,
upon the trial court’s proper consideration of KRS 403.270(2).
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tamara Dawn Watson
Wilkinson, Pro Se
Lexington, Kentucky
No brief filed.
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