REAMS (GREGORY W.) VS. BUCKLES (LISA)
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RENDERED: JANUARY 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001622-MR
GREGORY W. REAMS
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE DURENDA LUNDY LAWSON, JUDGE
ACTION NO. 97-CI-00544
LISA BUCKLES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
NICKELL, JUDGE: Gregory W. Reams appeals from an order of the Laurel
Circuit Court denying his motion to designate him as the primary residential
custodian of his twin daughters, and denying his motion to reduce his child support
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Senior Judge David C. Buckingham 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.
obligation to his former wife, Lisa Buckles. Upon reviewing the record and the
law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Lisa, a part-time cosmetologist, and Greg, a law enforcement officer,
were married in August of 1995. In May of 1996, they became the parents of twin
girls. They separated in June of 1997 and the next month Greg petitioned the
Laurel Circuit Court to dissolve the marriage. Greg stated in his petition that both
he and Lisa were fit parents, they should share joint custody of the twins, and it
was in the girls’ best interest for Lisa to be their primary residential custodian. In
Lisa’s verified response, she alleged Greg was unfit and asked for both
maintenance and child support. An agreed order entered August 15, 1997,
awarded Greg and Lisa joint custody of the twins with Lisa being designated the
primary residential custodian and Greg being ordered to pay $500.00 each month
in child support. The dissolution decree entered on November 20, 1998, increased
Greg’s monthly child support obligation to $540.15.
In succeeding years, Lisa filed several motions to increase child
support. In November of 2004, Greg moved to be designated the twins’ primary
residential custodian because they were missing a considerable amount of school
while in Lisa’s care. Lisa moved the trial court to interview the twins if it
considered Greg’s motion to designate him as the primary residential custodian.
Greg did not object to the court conducting such an interview. Lisa filed an
affidavit with the court explaining the twins had been tardy from school on
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occasion due to the distance she had to travel to transport the girls between her
home and the school. In response, Greg moved the court in March 2005 to modify
custody and appoint a guardian ad litem (GAL) for the girls. He claimed Lisa’s
home endangered the twins, Lisa made the girls tardy for school, she
overmedicated them, and the beds in her home were flea-infested. Alternatively,
Greg requested extended visitation with his daughters.
In April of 2005, Greg’s monthly child support obligation was
increased to $746.00. The increase was made retroactive to September 7, 2004,
which created an arrearage of $1,440.00. As part of the agreed order, neither party
was to play tape recordings of any conversations in the presence of the twins and
both parents agreed to participate in a custody evaluation.
In July of 2005, Greg moved for a reduction in child support claiming
there had been a material change of at least fifteen percent under KRS 403.213. In
October of 2005, Lisa moved to increase the child support award to $1,080.00 each
month because Greg had accepted a new job as a State Vehicle Enforcement
Officer earning gross monthly pay of $3,396.00, in addition to gross wages of
$1,379.00 a month as a teacher.
An agreed order entered in November of 2005 confirmed Lisa and
Greg had agreed to a custody/timesharing evaluation. Another agreed order, this
one entered in June of 2006, withdrew Greg’s motion to decrease child support and
Lisa’s motion to increase child support. It also withdrew all contempt motions
filed by the parties, specified visitation terms, and specified Greg’s monthly child
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support obligation was to remain at $746.00 per month with an additional monthly
payment of $100.00 to erase the child support arrearage. Four months later, Greg
renewed his motion to modify custody and to designate him as the twins’ primary
residential custodian. In November 2006, the trial court appointed a GAL for the
twins at Lisa’s request.
Ultimately, the matter was assigned for a final hearing that would be
limited to four hours, evenly divided between the parents, based upon Greg’s
attorney’s estimate of the time needed. There was no verbal or written objection to
the time allotted for the hearing. The four-hour limit was noted on the docket sheet
for February 13, 2007, an order entered on February 14, 2007, and an agreed order
entered on May 1, 2007.
On January 29, 2007, the GAL asked the court to allow the twins to
testify in chambers before the final hearing. The GAL requested the procedure
because the interviews and research she had conducted yielded “drastically
inconsistent information making it impossible to make a recommendation at this
point.” Lisa agreed with the GAL’s request, citing KRS 403.290 as authority for
the court interviewing children who are the subject of a custody dispute. Our
review of the record did not reveal any objection from Greg.
The court called the case for the final hearing on June 26, 2007.
According to the witness list he filed with the court, Greg anticipated calling a
minimum of eleven witnesses and introducing fifteen exhibits. Lisa anticipated
calling four witnesses and introducing eight exhibits. The trial court was to
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determine three issues during the hearing: 1) should Greg be designated as the
twins’ primary residential custodian; 2) should Greg’s monthly child support
obligation be reduced; and 3) which school should the twins attend.2 The hearing
commenced at 1:29 p.m. with the court again announcing, without objection, that
the hearing would be limited to four hours. The court began by interviewing the
twins in the presence of the GAL, but without the parents. While the
approximately twelve-minute recording is difficult to hear due to low volume, the
girls can be heard to say they want to remain enrolled at East Bernstadt Elementary
School, they mostly stay with their mother, and while they are to spend alternate
weekends with their father, they rarely see him because of his work schedule,
spending that time instead with their paternal grandparents.
Greg used his two hours to question John LaRusch, the licensed
professional clinical counselor who conducted the court-ordered child custody
evaluation in 2005-2006 and deemed Greg to be the best parent to be named as the
primary residential custodian; Lynette McPhetridge, a guidance counselor who
maintained it is easier for children to transition to a larger school at the beginning
of the sixth grade when they naturally form cliques and lifelong friendships rather
than waiting until the beginning of the ninth grade; and James Durham, a principal
2
The trial court’s conclusion that the twins should remain enrolled at East Bernstadt Elementary
School is not challenged on appeal. According to the GAL’s sealed report, the dissolution was
generally tranquil until Lisa transferred the girls from Johnson Elementary School, where Greg’s
mother was the principal, to East Bernstadt. Neither parent lived in either school district, but
East Bernstadt was just about four miles from Lisa’s home whereas Johnson Elementary required
about a thirty-minute drive.
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and deputy sheriff who stopped Lisa around 1:00 a.m. on May 14, 2005, for drunk
driving. Greg completed his case by calling Lisa and himself. Lisa’s case
consisted of testimony from Scott Buckles, her current husband, and herself.
The trial court kept meticulous time during the hearing advising both
parties of the amount of time they had remaining throughout the proceeding.
There were no requests for additional time during the hearing. Neither party
sought the opportunity to supplement their proof with additional documentation or
asked to call rebuttal witnesses.
At the conclusion of the hearing, the trial court took a short recess and
returned to the bench with her decision. The court stated: 1) the twins would
continue attending East Bernstadt for stability purposes because the children were
under stress; 2) Greg and Lisa have demonstrated they cannot parent together and
cannot communicate, therefore they will now do so with the help of a parenting
coordinator; 3) for child support purposes, $1,458.33 was imputed to Lisa based on
her testimony that she could earn that amount as a cosmetologist if she were
working, and $4,042.00 was figured as Greg’s gross monthly income with credit
for paying $230.00 each month for health insurance for the twins. Greg’s income
was extrapolated from his year-to-date gross income for the first five months of
2007. A tuition credit was not included in the calculation of Greg’s income,
however, overtime earned in 2007 was included in the computation. Based upon
these figures, the court calculated a monthly child support obligation of $728.49
which was a slight decrease from $746.00, but not equal to the fifteen percent
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change required by KRS 403.213(2) to invoke the rebuttable presumption
justifying a modification of child support due to a “material change in
circumstances.” The court went on to say it had met with the twins, had
considered all the required statutory factors, and having determined split custody
would not work, denied the motion to modify custody. This appeal followed.
ANALYSIS
Greg’s first of three arguments is that he was denied due process by
the trial court’s imposition of a four-hour time limit on the taking of evidence at
the final hearing. Lisa maintains review should be denied due to noncompliance
with CR3 76.12(4)(c)(v). Greg’s brief does not “contain at the beginning of the
argument a statement with reference to the record showing whether the issue was
properly preserved for review and, if so, in what manner.” Id. As a result of
Greg’s noncompliance with CR 76.12, we would be well within our authority to
deny review as Lisa has requested. Elwell v. Stone, 799 S.W.2d 46 (Ky. 1990). In
the alternative, we may review unpreserved allegations of error for manifest
injustice rather than considering them on the merits. Id.; CR 61.02.
We choose not to review Greg’s claim for other reasons. The motion
hours leading up to the final hearing, and the final hearing itself, reveal: Greg,
through his attorney, suggested the amount of time needed to conduct the hearing
to the trial court; Greg did not object or request additional time when the court
allotted four hours for the taking of evidence, to be divided evenly between the
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Kentucky Rules of Civil Procedure.
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parties; when the hearing commenced, with full knowledge of the proof he
intended to elicit, and presumably an idea of how much time would be required to
develop his case, Greg did not request additional time to present his evidence;
when the trial court apprised Greg that he had used his two hours, he did not
request additional time, and most importantly, he did not contend he had been
denied the opportunity to present witnesses or evidence critical to his case.
We are a court of review. Because Greg did not argue the denial of
due process to the trial court, we will not review the claim on appeal. Pursuant to
Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), we will not allow
Greg to “feed one can of worms to the trial judge and another to the appellate
court.”
Time limits imposed by a trial court serve an important purpose for
the orderly, fair, and expeditious processing of litigation. If Greg thought he
needed more than two hours to present his case he should have advised the trial
court of that fact when the court scheduled the hearing or during the six months
that passed between entry of the order setting the hearing and commencement of
the hearing. Moreover, as soon as Greg realized he could not complete his case
within the time allotted by the court it was incumbent upon him to advise the court
and request additional time. He took none of these steps.
Furthermore, our review of the record confirms there was no palpable
error requiring reversal. Greg has not shown he was denied the opportunity to
present specific witnesses, testimony or exhibits, nor has he demonstrated how
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such evidence would have changed the hearing’s outcome. Additionally, he has
not demonstrated the witnesses and exhibits he planned on presenting were
relevant or otherwise admissible. Under these facts we will not reverse the trial
court for an alleged due process violation on which it was never given the
opportunity to rule.
Under this same heading, Greg criticizes the trial court’s evidentiary
rulings claiming Lisa was allowed to pose hypothetical questions for which
supporting evidence was not subsequently introduced; hearsay testimony was
admitted about Greg and his mother attempting to persuade the twins to live with
Greg without the laying of a proper foundation; Lisa asked LaRusch if his opinion
of Greg as being the best primary residential custodian would change if the twins’
stated desires had changed since he spoke with them without offering proof to that
effect; and the court erroneously admitted an affidavit from Lisa containing
inadmissible hearsay. As a result of these alleged errors, Greg claims the court’s
decision was based on inadmissible evidence.
We review evidentiary rulings for an abuse of discretion. See
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The
test for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth
v. English, 993 S.W.2d 941, 945 (Ky. 1999).
At the outset, we must note that this was a bench trial. As such there
was no danger a jury would be misled by inadmissible hearsay or other evidence.
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Furthermore, the judge was intimately familiar with the parties, the pleadings
(including Lisa’s affidavit which was attached to a pleading within the file), and
the protracted nature of the litigation as she had previously reviewed the case as
the Laurel County Domestic Relations Commissioner before being named a circuit
court judge. Admission of incompetent evidence during a bench trial is not fatal; it
may be deemed harmless if the court’s decision was not based on the challenged
evidence, G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713, 715 (Ky.
1985); Holcomb v. Davis, 431 S.W.2d 881, 883 (Ky. 1968), or the matter in issue
was established by other competent evidence. Escott v. Harley, 308 Ky. 298, 214
S.W.2d 387, 389 (1948). Thus, were we to conclude the trial court erred, reversal
would not be automatic.
Based upon the complete record, there was substantial evidence upon
which the trial court could have denied the custody modification. Thus, we deem
any irregularity in the admission of proof to be harmless and reject any allegation
of an abuse of discretion.
For his second argument, Greg claims the trial court abused its
discretion in denying his motion to designate him as the twins’ primary residential
custodian. In custody matters tried without a jury, the court's “[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.” CR 52.01;
Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002). A factual finding
supported by substantial evidence is not clearly erroneous. Id. at 782. “Substantial
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evidence” is “evidence of substance and relevant consequence sufficient to induce
conviction in the minds of reasonable people.” Id. As stated in R.C.R. v.
Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App.
1998), “when the testimony is conflicting we may not substitute our decision for
the judgment of the trial court.” Once a trial court makes the required findings of
fact, it must then apply the law to those facts. We will not disturb the resulting
custody award, as determined by the trial court, unless it constitutes an abuse of
discretion. Sherfey, 74 S.W.3d at 782-83. Trial courts are vested with broad
discretion in matters concerning custody and visitation. See Futrell v. Futrell, 346
S.W.2d 39 (Ky. 1961); Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000).
“Abuse of discretion in relation to the exercise of judicial power implies arbitrary
action or capricious disposition under the circumstances, at least an unreasonable
and unfair decision.” Sherfey, 74 S.W.3d at 783. While “[t]he exercise of
discretion must be legally sound,” Id., in reviewing the decision of the circuit
court, the test is not whether we, as an appellate court, would have decided it
differently, but whether the findings of the trial court were clearly erroneous or an
abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). Mere
doubt as to the correctness of the trial court's decision will not merit reversal.
Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967).
In determining whether a custody modification was appropriate in the
case sub judice, the court had a wealth of information on which to rely including:
its own knowledge of the litigation as the former DRC; the LaRusch report
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indicating both Lisa and Greg had parental shortcomings; the GAL’s report finding
such drastic inconsistencies between LaRusch’s report dated May 15, 2006, and
the statements made directly to her by the twins on December 15, 2006, that she
could not formulate a recommendation regarding custody; the court’s own
interview of the girls just before the final hearing in which they said they did not
want to live with their father because they rarely saw him when they were to be in
his care, but instead wanted to remain primarily with their mother; live testimony;
and photos of each parent’s home.
Based upon the foregoing, we cannot say the court abused its
discretion in denying Greg’s request to be named the twins’ primary residential
custodian. LaRusch may have found that Lisa had faults, but he found the same to
be true of Greg. He acknowledged that while Greg appeared to be more mentally
stable, there were many negatives on both sides and because Greg had tried to
present himself in the best light possible on the tests given during the custody
evaluation, his test scores were invalid whereas Lisa’s scores were reliable.
We are persuaded that after considering all the statutory factors
enumerated in KRS 403.340, the trial court properly denied Greg’s request for
custody modification because both girls stated it was their wish to remain with
their mother; their school records indicated they were thriving at East Bernstadt
where they were involved in numerous extracurricular activities; they had
developed a good relationship with their stepfather who transports them to school
on his way to work; they each have their own bedroom in Lisa’s home, but they
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must share a bedroom at their father’s home which they do not like to do; and the
children are satisfied with the amount of time they spend with their paternal
grandparents. As a result, we are confident the trial court did not abuse its
discretion in denying the custody modification.
Greg’s final argument is that the court erred in calculating his income
and denying his motion to decrease child support. Generally, the establishment,
modification, and enforcement of child support, within statutory parameters, is left
to the sound discretion of the trial court and will be disturbed only upon a showing
of an abuse of that discretion. See, Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.
App. 2000); Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). Greg
claims his 2006 tax return demonstrated a change in circumstances of at least
fifteen percent such that the appropriateness of modification should be presumed
under KRS 403.213(2). However, rather than using 2006 figures, the court used
Greg’s 2007 year-to-date gross income, $20,000.00 for the first five months of the
year, to calculate a new monthly obligation of $728.49 in contrast to the current
award of $746.00 per month. While the new amount represented a decrease in
Greg’s monthly obligation, it was not a change of at least fifteen percent which
was needed to presume the need for a statutory modification. Greg argues his 2006
tax return (gross income of $35,388.00 for the year) is a better reflection of his true
salary than his 2007 year-to-date income because his ability to earn overtime pay
varies and is greater at the beginning of the year.
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While the court could have figured the new child support obligation
by using Greg’s 2006 tax return, neither party has cited authority requiring the
court to do so and we have not located such a requirement. Dividing Greg’s 2007
pay by five, the number of months worked at the time of the June 26 hearing, was a
reasonable approach to calculating the new child support obligation and it was
based upon the most current figures available. Because this method was based
upon substantial evidence, we cannot say the court abused its discretion in using
this formula.
For the foregoing reasons, we affirm the order of the Laurel Circuit
Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephanie L. McKeehan
London, Kentucky
Marcia A. Smith
Corbin, Kentucky
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