DRAFFEN (ERICA K.) VS. DRAFFEN (JOHNNIE B)
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RENDERED: OCTOBER 2, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000541-ME
ERICA K. DRAFFEN
v.
APPELLANT
APPEAL FROM CARLISLE CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 08-CI-00045
JOHNNIE B. DRAFFEN
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS, SENIOR JUDGE.1
CLAYTON, JUDGE: This is an appeal of a decision of the Carlisle Circuit Court
regarding custody and visitation. For the reasons that follow, we will reverse the
trial court’s order based upon appellant, Erica Draffen’s (Erica) motion to alter,
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
amend or vacate and remand to the trial court for further findings and conclusions
consistent with this opinion.
BACKGROUND INFORMATION
The parties were married and are parents of a minor child. After their
divorce, Erica met a man, became engaged to him and is now married to him. The
man to whom Erica is now married resides in Missouri. His home is about two
hours away from Erica’s home. Upon hearing of Erica’s decision to marry and
move away with their minor daughter, Johnnie Draffen (Johnnie) moved the trial
court for custody to keep the move from happening.
After a hearing, the trial judge made the following supplemental
conclusions of law:
2. That it is in the best interest of the minor child that
JOHNNIE have possession of the minor child during the
14 days he is off from work and that ERICA have
possession of the minor child on the 14 days that
JOHNNIE does work. ERICA will further have the
minor child every Sunday from 8:00 am to 8:00 pm. The
pick-up and drop-off place will be at the maternal
grandmother’s home. This will be a shared custody
arrangement where neither party is designated as primary
residential custodian. However, if ERICA moves out of
state or moves a distance from the marital home that
interferes with the child’s ability to attend the Carlisle
County School System, then JOHNNIE will be
designated as primary residential custodian. If this
happens then ERICA’S mother, Larinda Lambert, would
stand in place for ERICA and would be the primary
caregiver for the minor child while JOHNNIE is
working.
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In February of 2009, Erica brought a motion to alter, amend or vacate
the trial court’s prior custody order. She argued in her motion that it was in the
best interest of her child for Erica to be the primary residential custodian. She also
asked the trial court to enter an order allowing for a home study of her new
husband’s household which the trial judge had agreed to at a prior hearing.
The trial judge appeared to become angered at Erica’s counsel’s
synopsis of his prior order as violating her rights by making her choose between
living in Carlisle County with her daughter and in Missouri with her husband.
Without using the best interests of the child as a guideline, the trial judge took
custody away from Erica so she would no longer have to make the choice. For the
reasons that follow, we find this to have been clearly erroneous as it was not
supported by substantial evidence.
STANDARD OF REVIEW
Kentucky Rules of Civil Procedure (CR) 52.01 provides 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 the
witnesses.” A judgment is not “clearly erroneous” if it is “supported by substantial
evidence.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414
(Ky. 1998). “[S]ubstantial evidence [is] evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.” Id. Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308
(Ky. 1972). With this standard in mind, we will address the issues before us.
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DISCUSSION
In Kentucky, the decision of how custody is divided between the
child’s parents depends upon the best interests of the child. KRS 403.270
provides, in relevant part, that:
(2) 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 403.720;
(g) The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian; . . . .
In his original findings of fact and conclusions of law, the trial judge
decided that it was in the best interests of the Draffens’ child to remain in Carlisle
County, Kentucky, rather than relocate to Missouri. He used as his basis the fact
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that the child had more relatives in Carlisle County (maternal grandmother and
father) and that her residence had been there for her entire life. The trial judge also
chastised Erica for a relationship with a man she had “met through the internet”
and had only known for five months.
Erica’s motion to alter, amend or vacate was denied without the
criteria set forth in KRS 403.270 being considered, which was an abuse of
discretion by the trial judge. Erica has now married and is interested in remaining
both a custodial parent with her child and also a spouse to her husband. She is
willing to have a home study performed through the state of Missouri to show the
fitness of the new home and we believe it is in the child’s best interest to have this
home study performed.
In reversing this case, we also remand it for a hearing at which Erica
be allowed to present evidence regarding her new husband and their home in
Missouri. Until new findings and conclusions are made, we reinstate the original
custody order in which Erica and Johnnie share joint residential custody of their
child.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark L. Ashburn
Paducah, Kentucky
Bryan E. Wilson
Mayfield, Kentucky
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