NATASHA DALE v. BENJAMIN DALE
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RENDERED: MAY 25, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001889-ME
NATASHA DALE
v.
APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 00-CI-00009
BENJAMIN DALE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ABRAMSON AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
ABRAMSON, JUDGE: Natasha Dale appeals from the August 14, 2006 Findings of
Fact, Conclusions of Law and Order entered by the Montgomery Circuit Court awarding
primary residential custody of her then nine-year-old daughter to her former husband,
Benjamin Dale. Having reviewed the record and finding that the trial court's decision is
supported by substantial evidence, we affirm.
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5) of the Kentucky Constitution and KRS 21.580.
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Since June 6, 2000, both Benjamin and Natasha have shared joint custody
of their daughter, Madisen, by agreement formalized in their divorce decree. Prior to the
trial court's order at issue herein, Natasha has always been the child's primary residential
custodian. On August 16, 2005, however, Benjamin filed a motion to modify that
custody arrangement. After an October 24, 2005 hearing involving testimony by a
number of witnesses, the trial court entered an order temporarily awarding Benjamin sole
custody of Madisen and providing for visitation2 by her mother. The court held several
subsequent hearings to review the status of the arrangement, and on at least one occasion
suspended Natasha's visitation rights.
A final custody hearing occurred on August 2, 2006. Once again, the
parties testified along with several witnesses. At the conclusion of the hearing, the trial
court ruled that the parties would share joint custody of Madisen, with Benjamin being
the primary residential custodian. Subsequently, on August 14, 2006, the trial court
entered its written Findings of Fact, Conclusions of Law and Order wherein it formalized
its decision and set forth the reasons supporting it. This appeal followed.
In Crossfield v. Crossfield, 155 S.W.3d 743 (Ky.App. 2005), this Court
held that a change in the primary residential custodian amounts to a modification of the
joint custody arrangement. See also Scheer v. Zeigler, 21 S.W.3d 807 (Ky. App. 2000)
2
We recognize that a more modern, and a more accurate, characterization of the time spent by a
non-custodial parent with a child is “time-sharing” rather than “visitation” since the latter term
may imply short, infrequent visits. See, e.g., Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003).
However, because the trial court in the present matter used the term “visitation” in its Findings of
Fact, Conclusions of Law and Order, and further because Kentucky's statutes retain that term
rather than the more appropriate “time-sharing,” we will refer in this Opinion to the time spent
by a non-custodial parent with his or her child as “visitation.”
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(sitting en banc) (modification of joint custody arrangement subject to custody
modification statutes). Because of this, any such change is subject to the provisions of
Kentucky Revised Statute (KRS) 403.340. Subsection 3 of that statute provides, in
pertinent part:
[T]he court shall not modify a prior custody decree unless
after [a] hearing it finds, upon the basis of facts that have
arisen since 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 change has
occurred and whether a 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;
(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.
Likewise, the relevant factors referred to in KRS 403.270(2) are:
(a) The wishes of the child's parent or parents . . . as to his
custody;
(b) The wishes of the child as to his custodian;
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(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 . . . .
Additionally, KRS 403.340(4) instructs that in determining whether a child's present
environment seriously endangers his or her “physical, mental, moral, or emotional health,
the court shall consider all relevant factors . . . .”
In its August 14, 2006 Findings of Fact, Conclusions of Law and Order, the
trial court indicated that its initial decision in October 2005 to award temporary sole
custody of Madisen to Benjamin was supported by what it believed was substantial
evidence in the record. According to the trial court, the totality of the evidence revealed:
●
Natasha had assaulted Madisen's cheerleading coach;
●
Natasha had abused a teacher;
●
Natasha had verbally abused school officials;
●
Natasha had placed inordinate pressure on the child to
have an appearance and engage in activities beyond
her maturity level;
●
Natasha did not encourage Madisen spending time
with Benjamin;
●
Natasha was not supportive of the relationship between
Madisen and Benjamin;
●
Natasha has a substantial history of charges for bad
checks;
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●
Several witnesses testified that Natasha had stolen cash
from them;
●
One witness testified that Natasha had made numerous
unauthorized purchases over the internet using the
witness's credit card;
●
At the time of the hearing, Natasha was unemployed;
●
Madisen had been expelled from her cheerleading
team solely because of Natasha's behavior; and
●
Madisen had excessive tardiness and absenteeism in
school.
The trial court further noted that between the October 24, 2005 temporary order and the
August 14, 2006 final order, the evidence indicated that additional issues relative to
Natasha's relationship with Madisen had arisen:
●
Natasha did not assist with her daughter's transition
between households;
●
Natasha required Madisen “to keep a diary or journal
documenting all activities at her father's house”; and
●
More allegations of theft were raised against Natasha.
One such allegation involved a theft of cash by
Natasha during a Thanksgiving party, with the cash
used to buy birthday gifts for Madisen. Upon the
advice of the Montgomery County Sheriff's Office,
Benjamin did not allow Madisen to have the gifts.
This matter was resolved without prosecution because
Natasha's mother made a cash payment to the victim of
the theft.
Moreover, though not specifically set forth in the Findings, the trial court noted during a
hearing held on August 2, 2006 that it found especially disconcerting the fact that several
of the alleged thefts occurred while Madisen was in Natasha's custody. In light of this
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evidence, the trial court found that “there has been a change of circumstances since the
original custody order entered in this case. The statutory requirements of KRS 403.430
and KRS 403.270 [have] been met and modification is appropriate.”
Natasha challenges these findings, claiming that they are unsupported by
substantial evidence. We disagree. Our review of the findings is guided by Kentucky
Rule of Civil Procedure (CR) 52.01, which states that “[f]indings 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 witnesses.”
Civil Rule 52.01 provides in part that findings of fact shall
not be set aside unless clearly erroneous with due regard
given to the opportunity of the trial judge to view the
credibility of the witnesses. The rule also provides that in all
actions tried upon facts without a jury, the court shall find the
facts specifically and state separately its conclusions of law.
One of the principal reasons for the rule is to have the record
show the basis of the trial judge's decision so that a reviewing
court may readily understand the trial court's view of the
controversy. . . . These rules clearly apply to child custody
cases and the findings of fact are particularly important in
such situations.
Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Under CR 52.01, findings of fact
should not be disturbed on appeal where there is sufficient evidence of probative value to
sustain such findings. Phelps v. Brown, 295 S.W.2d 804 (Ky. 1956). This is true even if
there is substantial and credible evidence on both sides of the issues. White v. Howard,
394 S.W.2d 589 (Ky. 1965). Even if there is some doubt in the mind of a reviewing court
concerning the findings of the lower court, those findings should not be set aside on the
basis of a mere doubt. Warner v. Sanders, 455 S.W.2d 552 (Ky. 1970). In short, the
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reviewing court should not substitute findings of fact for those of the trial court where
they were not clearly erroneous. Bennett v. Horton, 592 S.W.2d 460 (Ky. 1979).
Turning to the present matter, we disagree with Natasha's claim that the
trial court's findings were in conflict with the evidence of record. To the contrary, our
review of the documentary record as well as the testimony of the witnesses offered at the
various hearings held in this matter demonstrates that there was ample evidence to
support each of the trial court's findings. This is not to say that there was no evidence
supporting Natasha's claims. In fact, there was testimony, including her own, that
favored her position in this dispute and could have potentially supported a decision by the
trial court in her favor. This conclusion is plainly demonstrated by the fact that the trial
court, after temporarily awarding Benjamin sole custody of Madisen in October 2005,
ultimately allowed Natasha to share joint custody of her daughter.
However, a trial court's findings are not subject to reversal simply because
there was competing or contradictory evidence. White, supra. As long as the findings of
the trial court are not clearly erroneous and there is evidence of probative value to
support them, this Court must not disturb them on appeal. Bennett, supra; Phelps, supra.
Having carefully reviewed the record herein, we find that there was sufficient evidence
before the trial court to support its findings in this matter. For example, though Natasha
minimizes the importance of her criminal record, the trial court's concern about the
number of offenses, including instances resulting from Natasha's own volatility when
dealing with educators or coaches, simply cannot be discounted. Similarly the troubling
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allegations of theft were raised by not just one witness, but by several. Though Natasha
attempted to discredit these individuals, the trial court was in the best position to view the
parties and their witnesses first-hand and to determine credibility. This Court is not now
in a position to “second guess” the trial court's conclusions, and so long as there is
sufficient evidence to support them, we will not disturb them. Warner, supra. In sum,
because Natasha has not shown that the findings of the trial court are clearly erroneous,
we decline to set them aside. The Montgomery Circuit Court's August 14, 2006 Findings
of Fact, Conclusions of Law and Order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Myra D. Chenault
Chenault Law Office, PLLC
Mt. Sterling, Kentucky
Leah Hawkins
Mt. Sterling, Kentucky
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