CANDI CLEM CHILDERS v. KENNETH WAYNE CLEM
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RENDERED:
OCTOBER 21, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002478-ME
CANDI CLEM CHILDERS
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 03-CI-00714
v.
KENNETH WAYNE CLEM
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; POTTER, SENIOR JUDGE. 1
VANMETER, JUDGE:
This is an appeal from an order entered by the
Whitley Circuit Court in a child custody modification
proceeding.
For the reasons stated hereafter, we affirm.
The Bell Circuit Court entered an order in 1999
dissolving the marriage of appellant Candi Clem Childers and
appellee Kenneth Wayne Clem, and awarding Candi sole custody of
the parties’ three sons who were born in 1993, 1994 and 1997.
On November 13, 2003 Kenneth filed both a petition to transfer
venue to the Whitley Circuit Court and an ex parte emergency
1
Senior Judge John Woods Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
motion seeking immediate custody of the children.
The Whitley
Circuit Court entered an emergency custody order (ECO) in
Kenneth’s favor, and on December 1 Candi filed a verified
response to Kenneth’s petition and emergency motion.
On March
26, 2004 she filed a motion seeking immediate custody of the
children.
Hearings were conducted before a domestic relations
commissioner (DRC).
Based on the DRC’s recommendations, the
court awarded sole custody of the children to Kenneth after
finding:
6. The parties each presented evidence
in an attempt to malign the other; however,
this court must closely examine the present
circumstances under which the children are
found to determine which parent is the fit
and proper person to have custody of the
children and ultimately what is in the best
interest of these children. Kenneth
presented evidence that the children are
presently living in his home in Corbin,
Kentucky where they are enrolled in school
and appear to be doing well. The children
are also receiving counseling with
Cumberland River Comprehensive Care Center.
Kenneth has relatives in the area with whom
the children have strong bonds, and the
children appear to have adjusted well to
their present home, school and community.
7. Candi presented evidence that she
has two (2) younger children by a subsequent
relationship as well as three older children
with whom these children were close. She
testified that she has a suitable home and
presented evidence that the children
performed well in school when they were
residing with her.
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8. The fact that concerns this court
most, however, is that for the past several
years it appears that the children had
little stability in their lives while in the
custody of Candi. While Candi denies this
fact, it is evident from the records
introduced herein that the children were
frequently left with Kenneth in Kentucky for
various periods of time, and often abruptly
uprooted by Candi and removed to North
Carolina.
9. Based upon the foregoing, the court
has given equal consideration to each
parent, and has considered all relevant
factors set forth in KRS 403.270(2), and
finds that it is in the best interest of the
children that Kenneth continue to have the
care, custody and control of the children,
subject to visitation by Candi. The court
has given due consideration to facts
indicating that the parties have been unable
to cooperate with one another considering
decisions regarding schooling and health
care concerns. This coupled with the fact
that there is a great distance between the
residences of the parties makes a joint
custody arrangement impractical.
This appeal followed.
Kenneth, who no longer is represented by
counsel, did not file a brief on appeal.
First, Candi contends that the trial court erred by
exercising jurisdiction in this matter.
She asserts that she
and the children lived in North Carolina for several years
immediately prior to this action, and that because “[t]he
substantial evidence concerning the children’s care, protection,
training, and personal relationships was overwhelmingly in North
Carolina,” that state has jurisdiction over this custody matter
-3-
pursuant to KRS 403.420(1) 2 and KRS 403.824(1)(a). 3
However, it
is undisputed that no custody action was filed or pending in
North Carolina during the pendency of this proceeding, and the
trial court noted that there was evidence “that at various times
the children resided in Kentucky and attended schools in the
Whitley and Laurel County areas, while residing with Kenneth.”
Given the conflicting evidence, including that regarding the
children’s contacts with both states, we cannot say that the
trial court erred by finding, “pursuant to KRS 403.420(1)(b),(c)
and (d),” that it was in the children’s best interests for the
court to assume jurisdiction herein.
Next, Candi contends that the trial court erred by
failing to find that the November 13, 2003 ECO expired, and that
custody was reinstated in her, once seventy-two hours passed
from the ECO’s issuance without a temporary removal hearing
pursuant to KRS 620.060(3).
However, KRS 620.060(3)
specifically provides that the seventy-two hour period “may be
extended or delayed upon the waiver or request of the child’s
parent or other person exercising custodial control or
supervision.”
As the record indicates that this issue was not
raised until Candi filed her exceptions to the DRC’s report some
2
Part of the Uniform Child Custody Jurisdiction Act, the repeal of which was
effective July 13, 2004.
3
Part of the Uniform Child Custody Jurisdiction and Enforcement Act,
effective July 13, 2004.
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eleven months after the ECO was issued, it is clear that any
objection to the court’s failure to conduct a seventy-two hour
hearing was waived.
Hence, Candi is not entitled to relief on
this ground.
Next, Candi contends that substantial evidence does
not support the trial court’s findings of fact.
We disagree.
As stated below, both parties “presented evidence in
an attempt to malign the other,” as well as evidence of his or
her own competency and the other’s alleged lack thereof.
Further, the parties presented evidence regarding the children’s
school enrollment, which Candi summarized in her exceptions to
the DRC’s report as follows:
a. During the 1998-1999 school year,
(1)
89 days in Stanly County Schools,
Albemarle, North Carolina;
(2)
101 days in Mount Gilead
Elementary, Mount Gilead, North
Carolina;
b. During the 1999-2000 school year,
(1)
172 days in Mount Gilead
Elementary, Mount Gilead, North
Carolina;
c. During the 2001-2002 school year,
(1)
93 days in Hunter Hills
Elementary, Corbin, Kentucky;
(2)
According to Candi’s testimony,
the children attended school in North
Carolina the remainder of the year.
d. During the 2002-2003 school year,
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(1)
151 days in North Albemarle
Elementary, Albemarle, North Carolina;
e. During the 2003-2004 school year,
(1)
51 days in North Albemarle
Elementary, Albemarle, North Carolina;
(2)
the first time entry September 9,
2003 in Oak Grove Elementary, Corbin,
Kentucky.
Although it seems reasonable to assume that each school term was
approximately as long as the 1998-1999 term during which the
oldest child attended school in North Carolina for 190 days,
Candi failed to explain why the children attended school in
North Carolina for only 172 days during the 1999-2000 term, for
only nine weeks (August 8 to October 4) during the 2000-2001
term, 4 and for only 151 days during the 2002-2003 term.
However,
it is undisputed that the children attended school in Kentucky
for 93 days during the 2001-2002 term, and Kenneth asserted that
they attended school in Kentucky during the remainder of the
2002-2003 school term.
Thus, there was substantial evidence to
show that the children lived and attended school in Kentucky for
significant periods of time during the years immediately prior
to the ECO, and to support the trial court’s findings that
for the past several years it appears that
the children had little stability in their
lives while in the custody of Candi. While
Candi denies this fact, it is evident from
4
We have found no probative evidence pertaining to school attendance during
the remainder of the 2000-2001 school term.
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the records introduced herein that the
children were frequently left with Kenneth
in Kentucky for various periods of time, and
often abruptly uprooted by Candi and removed
to North Carolina.
Finally, Candi contends that the trial court erred by
failing to make essential findings of fact pertaining to the
children’s wishes regarding their custodian.
However, there is
nothing in the record to indicate that the trial court in any
way relied upon the DRC’s in camera interview of the three young
children, or that the children’s interview or wishes were in any
way essential to the court’s determination of custody.
Hence,
Candi is not entitled to relief on the ground that the trial
court failed “to make a finding of fact on an issue essential to
the judgment” 5 when it failed to make any findings relating to
the interview of the children.
The court’s order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John R. Milton
Barbourville, Kentucky
No Brief Filed
5
CR 52.04.
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