CHARLES C. TUBBS v. RACHEL DIANNE TUBBS (NOW SLEDD)
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RENDERED: July 22, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001605-ME
CHARLES C. TUBBS
v.
APPELLANT
APPEAL FROM MCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
CIVIL ACTION NO. 02-CI-00288
RACHEL DIANNE TUBBS (NOW SLEDD)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
Rachel Diane Tubbs and Charles C.
Tubbs were married on November 17, 2000.
Prior to their
marriage, the parties had one child, Andrea Paige, born on
February 10, 1999.
During the marriage, Charles and Rachel had
another child, Charles Nathaniel, born on June 15, 2001.
1
The
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.
parties’ relationship was tumultuous, and they separated on
January 15, 2002.
In March 2002, Rachel filed a petition with
the McCracken Family Court seeking dissolution of the parties’
marriage.
On January 14, 2003, an amended interlocutory decree
dissolving the parties’ marriage was entered in which the court
reserved the issue of child custody.
In June 2003, the parties began to share custody of
the children on their own initiative.
One parent would keep the
children for three or four days then the other parent would keep
them.
This pattern lasted until October 2003.
From October
2003 to January 2004, Charles withheld their daughter, Andrea,
from Rachel.
In January 2004, an order setting a temporary
visitation schedule was entered.
Rachel was permitted to keep
the children for four days after which she was to turn them over
to Charles, who would keep them for four days.
Evidentiary hearings relating to the custody issue
were held on March 15, 2004, and on June 29, 2004.
At the March
hearing, Charles was not represented by counsel, but he did have
an attorney at the June hearing.
Both parties testified at the
hearings and both presented their own witnesses.
On July 13,
2004, after considering the evidence, the family court handed
down a custody decree.
The court found that Charles had a
history of substance abuse and violence but noted that he had
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testified that he no longer abused either drugs or alcohol.
The
court observed that after the parties separated, Rachel had been
the children’s primary caregiver.
Determining that it was in
the children’s best interest, the court awarded joint custody to
the parties and designated Rachel as primary residential
custodian.
Charles was granted standard visitation.
On appeal, Charles argues that the family court abused
its discretion when it designated Rachel as the children’s
primary residential custodian.
He says that Rachel admitted
during the hearings that she had little past interaction with
the children because she “went wild” and “stayed gone”.
He also
claims that she was aware that the children had scabies on at
least two occasions.
Rachel, he says, wrote a letter to his
mother asking her to take custody of the children.
Furthermore,
he notes, Rachel admitted that she had been arrested for alcohol
intoxication.
He alleges that Rachel’s mother had to seek
custody of the children because Rachel abandoned them for six
months.
In addition, Charles offered evidence that Rachel had
been assaulted by her sister and her new husband.
Based on
this, he contends that Rachel lacks “the ability to bring out
the best in people closest to her”; furthermore, “[a]lthough
there was domestic violence between these parties, there was
ample evidence that [Rachel] did a less adequate job of avoiding
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altercations even with her own family members and new husband.”
According to Charles, since Rachel was involved (as a victim) in
domestic violence, she should not have been designated as
primary residential custodian.
Charles insists that the family court’s decision is
erroneous when considered in light of the statutory factors set
forth in Kentucky Revised Statues (KRS) 403.270, and that the
decision is not supported by the evidence adduced at the
hearings.
He contends proof of Rachel’s past behavior
constituted clear and convincing evidence that she is not fit to
be the children’s primary residential custodian.
When we review a child custody decision, we reverse
only when the family court’s findings of fact are clearly
erroneous or its decision reflects a clear abuse of the
discretion granted such courts in custody matters.2
In child
custody cases, it is particularly important to have written
findings of facts to enable the reviewing court to understand
the family court’s view of the underlying controversy and why it
reached the decision that it did.3
Unfortunately, in this case,
the family court’s findings are barely adequate and provide
little insight into its thought processes.
2
Ky. R. Civ. Proc. (CR) 52.01. See also Reichle v. Reichle, 719 S.W.2d 442,
444 (Ky. 1986).
3
Reichle v. Reichle, supra, note 2, at 444.
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It is evident from a review of the record that on
appeal Charles has interpreted the evidence in the light most
favorable to himself in an attempt to persuade this Court to
reverse the custody decision.
Many of Charles’ factual
assertions were contradicted by Rachel.
And, when there is a
conflict in the evidence, as in this case, it is the
responsibility of the family court, not this Court, to decide
what evidence is to be believed.
As a reviewing court, we must
give due regard to the family court’s opportunity to judge the
credibility of witnesses.4
We may not engage in a de novo review
of the evidence, nor may we substitute our judgment for that of
the family court.5
In this case, we must defer to the family
court’s custody decision since Charles has not shown that the
findings of fact lack support in the evidence or that the family
court abused its considerable discretion when it granted joint
custody to the parties and designated Rachel as primary
residential custodian.
Charles also argues that the family court erred when
it admitted into evidence a so-called “case history” that
outlined his criminal history.
According to Charles, when
Rachel introduced the document, she failed to lay the proper
foundation to introduce it, failed to authenticate it and failed
4
See Ghali v. Ghali, 596 S.W.2d 31 (Ky. App. 1980); Adkins v. Meade, 246
S.W.2d 980 (Ky. 1952).
5
Reichle v. Reichle, supra, note 2, at 444.
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to introduce the document through the testimony of a records
custodian.
Charles admits that he failed to object to the
introduction of the document.
But, since the family court
mentioned his criminal record in the custody decree, he insists
the admission of the document affected his substantial rights
and constituted a manifest injustice rising to the level of
palpable error.
Palpable error is an irregularity that affects the
substantial rights of a party and will result in manifest
injustice to the party if not addressed by an appellate court.6
After considering the whole case, if we do not believe that
there was a substantial possibility that the result would have
been different, the irregularity will be deemed not to have been
prejudicial.7
While Charles is correct that Rachel did not
conform to the rules of evidence when she introduced the “case
history” document, prior to the introduction of the document,
Charles testified extensively about his criminal history.
Since
he testified regarding the document’s contents, its admission
did not result in a manifest injustice.
Because the findings of fact upon which the custody
decree is based have not been shown to be clearly erroneous and
McCracken Family Court did not abuse its discretion when it
6
7
Schoenbachler v. Commonwealth, Ky., 95 S.W.3d 830, 837 (2003).
Id.
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named Rachel as the children’s primary custodian, the custody
decree is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa A. DeRenard
MONOHAN & BLANKENSHIP
Benton, Kentucky
Natalie G. Bash
Kentucky Legal Aid
Paducah, Kentucky
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