JONI BRENDA MAHAN v. GEORGE BARTON MAHANAnnotate this Case
SEPTEMBER 22, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
JONI BRENDA MAHAN
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 92-CI-02223
GEORGE BARTON MAHAN
** ** ** ** **
BARBER, JUDGE; BUCKINGHAM AND EMBERTON, SENIOR JUDGES.1
EMBERTON, SENIOR JUDGE:
These consolidated appeals stem from
orders of the Fayette Family Court which changed the primary
residential custodian of the parties’ sixteen-year old son
Mattison, from appellant Joni Mahan to his father, appellee Bart
The order further held Joni Mahan in contempt for
Senior Judges David C. Buckingham and Thomas D. Emberton sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
failure to comply with orders to return Mattison from her home
in Florida to the custody of his father in Kentucky, and denied
Joni Mahan’s motions for an emergency custody change and for
recusal of the family court judge presiding over the case.
affirm the decision of the trial judge in each appeal.
Incorporated into the decree dissolving the marriage
was a settlement agreement awarding the parties joint custody,
with Joni being designated primary residential custodian of
their two children Meredith and Mattison, aged 17 and 16
respectively at the time of the filing of Bart’s motion for
change of custody.
A lengthy hearing on that motion focused
primarily upon the children’s poor academic performance, as well
as Meredith’s living arrangements following Joni’s move to
Florida in May 2005.
Bart testified at the August 3, 2005,
hearing that he had become aware that although Mattison had been
enrolled in Eastern High School, St. Xavier High School and
Jefferson County “e-school” over the past two years, he had not
earned any high school credits.
With regard to Meredith, Bart
was concerned about an apparent lack of supervision for Meredith
who was residing with the family of one of her friends to
complete her junior year of high school after Joni’s move to
He stated that there had been a significant drop in
Meredith’s grades and that he questioned the advisability of
Joni’s plans to allow Meredith to remain in Louisville with this
family during her senior year.
Joni countered the testimony about Mattison’s lack of
academic achievement by outlining the problems encountered in
efforts to stabilize his blood sugar levels after he was
diagnosed with juvenile onset diabetes in 2002 and how those
problems interfered with his ability to attend school regularly.
She also stated that she had enrolled Mattison in a Florida
school as a sophomore for the next school year.
Meredith, Joni disputed the allegation that Meredith’s living
arrangements evidenced a lack of supervision, stating that she
had previously been a good student and that both children were
good, well-mannered individuals.
Joni testified that Bart had a
volatile temper and had been verbally abusive to her during
their marriage, emphasizing that both children were afraid of,
and intimidated by, their father.
The trial judge also heard
testimony from Joni’s sister who lives in Florida about her
family’s ability to help Joni with Mattison’s illness and
conducted an in camera interview in which each child testified
as to their wishes and feelings toward their parents.
At the conclusion of the hearing, the trial judge
concluded that while Bart had failed to satisfy his burden with
respect to Meredith, there was evidence sufficient to warrant a
change in the primary residential custodian for Mattison and
ordered an immediate transfer to his father.
The trial court
formalized its decision by entry of a final and appealable order
on August 8, 2005.
Joni filed a notice of appeal from the order
concerning Mattison on August 9, 2005.
Joni also sought emergency and intermediate relief
from this Court, which was denied by orders entered on August
11, 2005, and September 14, 2005.
In the meantime, on August
23, 2005, Mattison left his father’s house in a new BMW
automobile and drove, with only a learner’s permit, to his
mother’s house in Florida.
On August 24, 2005, the trial court
granted Bart’s emergency motion for immediate entitlement,
ordering Joni to return Mattison to his father’s custody on or
before Friday morning, August 26.
At a hearing conducted on
that day, the trial judge was informed that Joni had not
delivered Mattison to his father as directed by the order of
Joni did not attend the hearing but was represented
by counsel who argued that Joni had nothing to do with
Mattison’s running away from his father’s home; that she was
doing everything she could to induce Mattison to return to
Kentucky, but he refused to comply; that Mattison was in
psychological distress and needed mental health intervention in
Florida; and that Mattison was threatening to run away and
secrete himself if forced to return to his father’s custody.
The trial judge then gave Joni until the following Monday
morning to return Mattison to his father or face a finding of
Another hearing was scheduled for Monday, August 29.
The trial judge emphasized that if Mattison was in need of
emergency hospitalization to address his psychological
situation, it would be taken care of upon his return to
At the hearing conducted on Monday, August 29, the
trial judge was informed that Mattison had not been returned to
his father’s custody.
Although Joni’s counsel argued at the
hearing that the orders entered on August 24 and 26, 2005, were
procedurally defective and thus unenforceable for lack of
reasonable notice, they stated Joni was nevertheless attempting
to comply with those orders.
The trial judge disagreed and
stated on the record her conclusion that Joni should be held in
contempt for failure to comply with the court’s orders.
also authorized Bart to travel to Florida to effect Mattison’s
return to his custody, imposing monetary sanctions by requiring
Joni to pay Bart’s legal and other expenses incurred in
regaining custody of Mattison.
These ruling were formalized in
a written order entered September 13, 2005.
In that same
written order, Joni’s motion to alter, amend or vacate the order
changing the primary residential custodian was denied.
orders of August 24, 26, and September 13, 2005, form the basis
of Joni’s second appeal.
When Bart arrived at Joni’s home on September 14 with
the assistance of a Lee County Florida deputy sheriff, Joni
refused to relinquish possession of Mattison because Bart had
not obtained a Florida court order.
After Bart subsequently
obtained an order from a Florida court, a Florida sheriff
advised Joni that she would be arrested if she failed to comply
with the Florida order and she ultimately delivered Mattison to
the Juvenile Assessment Center on Friday, September 16.
Mattison was then released to his father later that day and
remains in his father’s custody.
On October 5, 2005, Joni filed another emergency
motion seeking custody of Mattison alleging that his present
environment “seriously endangered his physical, mental, moral
and emotional health,” supported by several affidavits including
her own, that of her sister and of Dr. Rhonda Mancini, a
psychologist who had been seeing Mattison.
Dr. Mancini stated
in her affidavit that Mattison was exhibiting multiple symptoms
consistent with depression and anxiety, and she expressed
concern that his behavior might escalate to the point that
Mattison may become dangerous to himself or others.
also sought recusal of the trial judge, appointment of a
guardian ad litem and a psychological evaluation for Mattison.
The trial judge entered an order denying the motions for
immediate physical custody, for appointment of a guardian ad
litem and for recusal.
Although the order denied the motion for
a psychological evaluation, it directed Bart to provide
“appropriate and necessary psychological and medical treatment
These orders form the basis for the third
Citing Fenwick v. Fenwick,2 Joni first argues that the
trial judge erred in holding a hearing on Bart’s motion for a
change in the primary residential custodian because his
objection to her relocation was not timely.
clear from a review of the pleadings and argument at the
hearings that Bart’s intent in seeking a change in the primary
residential custodian stemmed from his discovery of Meredith’s
living arrangements after Joni relocated to Florida and the fact
that the educational advancement of both children, but of
Mattison in particular, was in considerable jeopardy.
we are convinced that Joni’s relocation to Florida was but an
incidental factor in the children’s present circumstances, we
conclude that the trial judge did not err in conducting a
hearing as Bart’s motion did not implicate the factors at work
Joni next argues that because there was no evidence to
satisfy the requirements of KRS 403.340(3), the trial judge
erred in concluding that it was in Mattison’s best interest to
114 S.W.3d 767 (Ky. 2003).
change the primary residential custodian to his father.
The trial judge recited on the record at the
conclusion of the hearing the KRS 403.340 factors that she
concluded necessitated a change in the primary residential
I do believe that his mother has blatantly
failed as a parent to see to it that he
[Mattison] attended school and completed the
last two years of school. As a matter of
fact, I don’t know what went on in the past
level of involvement and why that was but it
doesn’t bode well—even if I take Ms. Mahan’s
position that she was primary caretaker and
[Bart] didn’t visit very much. We’ve got a
16 year old child that is just now at a
level of starting high school That is
absolutely scary to me and there are a lot
of children that deal with disabilities,
whether it be diabetes or anything else, and
clearly his mother has not been able as a
parent to adapt, develop skills, educate
herself, educate him to do the very basic in
one of our most important parental
functions, which is to get our children to
school and see to it that they attend school
I think that if [Mattison] were to continue
to live with his mother, there would be a
serious endangerment that he may not ever
finish high school. . . . . With regard to
the harm factor, by change of environment
outweighed by its advantages, I think that
his dad has the structure necessary to see
to it, the drive and time to see to it, that
[Mattison] gets to school and finishes high
school. I think that [Mattison] has got a
significant relationship with his dad. He
just knows what his dad is going to say. He
doesn’t want to hear it—-which is go to
school, get on track. I don’t think these
children have had much discipline, ever.
Contrary to Joni’s assertion, there is really no dispute in the
evidence that Mattison completed even one high school credit
over the past two school years.
Thus, her argument with respect
to the introduction of Mattison’s school records is
We are absolutely convinced that, on the basis of
the testimony adduced from Joni, Bart and Mattison, the trial
judge correctly found a crisis in the educational prospects for
the child unless drastic measures were taken.
The trial judge
was not unmindful of the difficulties posed by Mattison’s
Not only did she hear significant evidence of the
testing and blood sugar levels to be achieved before Mattison
could attend school, but the trial judge also had before her
evidence that his diabetes had not inhibited him from excelling
in golf and doing the things necessary to accomplish that goal.
Diabetes notwithstanding, Joni offered no real explanation for
Mattison’s failure to make even minimal progress in high school.
On the basis of the evidence in the record, we find ample
support for the trial judge’s conclusion that Mattison’s best
interests were served by changing the primary residential
custodian to his father.
In light of our discussion on this
issue, it is apparent that Joni was not entitled to a directed
verdict on Bart’s motion.
Joni also challenges the entry of the August 24 ex
parte order of entitlement by which Bart sought to enforce the
order changing primary residential custodian.
strenuously argues lack of notice, her counsel was present at
the hearing conducted on August 26 during which the trial judge
gave Joni additional time to comply with the August 8 and August
A second hearing was conducted on August 29, at
which Joni was again given every opportunity to present her side
of the matter.
The bottom line is, regardless of the timing of
faxes and the lack of telephonic communication between
attorneys, Joni was afforded a full and fair opportunity to
comply with the court’s orders whereby she could avoid contempt
and fully present her positions to the trial judge.
judge was faced with the actions of a 16 year-old child who had
fled the custody of his father, driving to Florida with just a
learner’s permit, and the refusal of his mother to cooperate in
effectuating his return, despite having been given every
opportunity to do so.
On these facts, we perceive no procedural
error sufficient to require setting aside of the trial judge’s
thoughtful and well-reasoned orders.
Nor do we perceive any error in the trial judge’s
refusal to recuse.
In support of her claim of error, Joni cites
the fact that one of her witnesses was a former client of the
trial judge who bankrupted a substantial amount of her
attorney’s fees and the fact that the trial judge’s sheriff
overheard and reported to the judge a communication between Joni
and her counsel.
We find no error on either count.
In Stopher v. Commonwealth,3 the Supreme Court of
Kentucky reiterated the burden placed upon a party seeking
disqualification of a judge:
KRS 26A.015(2) requires recusal when a judge
has “personal bias or prejudice concerning a
party ··· [,]” or “has knowledge of any
other circumstances in which his
impartiality might reasonably be
questioned.” KRS 26A.015(2)(a) and (e); see
SCR 4.300, Canon 3C(1). The burden of proof
required for recusal of a trial judge is an
onerous one. There must be a showing of
facts “of a character calculated seriously
to impair the judge's impartiality and sway
his judgment.” Foster v. Commonwealth, Ky.,
348 S.W.2d 759, 760 (1961), cert. denied,368
U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530
(1962); see also Johnson v. Ducobu, Ky., 258
S.W.2d 509 (1953). The mere belief that the
judge will not afford a fair and impartial
trial is not sufficient grounds for recusal.
*795 Webb v. Commonwealth, Ky., 904 S.W.2d
As was the case in Stopher, we are convinced Joni has failed to
satisfy her burden of demonstrating facts which call into
question the judge’s ability to be impartial.
Concerning the witness, the trial judge stated on the
record that she was not even aware that she had been a former
client until that fact was called to her attention.
57 S.W.3d 787, 794-5 (Ky. 2001).
event, there is no basis upon which we might reasonably conclude
that the trial judge would allow that previous relationship to
“sway her judgment” in ruling upon a matter as serious as a
With regard to the sheriff, it appears that
immediately after the trial judge stated on the record her
reasons for changing custodians, he overheard Joni say to her
counsel in the presence of Mattison that the trial judge’s
ruling would cause him to run away, a matter the trial judge
specifically cautioned the parties not to discuss in Mattison’s
The sheriff then reported Joni’s statement to the
Again, Joni fails to demonstrate that this
knowledge on the part of the trial judge gave rise to actual
In fact, the record reveals that quite the contrary was
At the hearings on Bart’s immediate entitlement motions,
the trial judge repeatedly stated that she was not making any
assumptions that Joni was culpable in Mattison’s decision to
flee to Florida and that all Joni had to do to avoid a finding
of contempt was to assist Bart and the court by cooperating in
It is abundantly clear to us that Joni’s repeated
refusal to comply with reasonable court orders resulted in her
contempt citation, not any bias on the part of the trial judge.
Finally, Joni predicates error on the denial of her
See Mills v. Commonwealth, 170 S.W.3d 310 (Ky. 2005).
motions for immediate custody, for appointment of a guardian ad
litem and for a psychological evaluation.
A review of the
record clearly attests to the fact that the matters addressed in
these motions had been argued and re-argued in the course of the
The trial judge was well-aware of the
concerns about Mattison’s physical and mental health and made
appropriate provisions for them in her orders.
In our opinion,
these motions were in reality yet another attempt to circumvent
the order changing primary residential custodian, an order we
concluded to be entirely proper at the outset of this opinion.
Although we understand Joni’s concern for what she believes to
be the well-being of her son, we are convinced that the orders
of the Fayette Family Court are far more likely to serve his
best interests and should be upheld.
Accordingly, the judgment of the Fayette Family Court
in each of these appeals is hereby affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Dodd Lococo
Elizabeth S. Hughes