TELEK (JOHN STEPHEN) VS. DAUGHERTY (NOW BUCHER) (SAMANTHA)Annotate this Case
RENDERED: APRIL 2, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOHN STEPHEN TELEK
APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 00-CI-00155
SAMANTHA (DAUGHERTY) BUCHER
** ** ** ** **
BEFORE: LAMBERT AND STUMBO, JUDGES; WHITE,1 SENIOR JUDGE.
LAMBERT, JUDGE: John Stephen Telek appeals from several orders entered by
the Kenton Family Court regarding child support and custody arrangements
between him and the mother of his child, Samantha Daugherty Bucher. Telek
Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant
to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statues (KRS) 21.580.
claims the family court abused its discretion in entering these orders. Finding no
abuse of discretion, we affirm.
The minor child, J.T., was born in 1997. The parties abided by
informal child support and custody arrangements until 2000. Then, Telek initiated
litigation to establish custody and support by court order. Custody and support
determinations were made by agreed order at that time. Unfortunately, relations
between the parties started to deteriorate in 2001.
By 2008, the parties had filed volumes of pleadings against each
other. Telek insisted on increasing the custody arrangements to a 50/50 schedule,
and Bucher complained that Telek was uncooperative and failed to timely pay his
child support. In fact, Telek had been found in contempt on several occasions for
failure to pay the court-ordered support. Due to the high degree of conflict
between these parties, a guardian ad litem was appointed to represent the child in
2005. During the course of these protracted proceedings, three different judges
presided over this matter.
Matters currently before this Court involve the amount of child
support Telek must pay to Bucher, the custody arrangements between the parties,
and the supervision and enforcement of court orders. Telek insists that the family
court erred in its most recent assessments of these issues. We disagree, and thus,
In his first assignment of error, Telek contends the family court
abused its discretion in not granting his motion to increase his parenting time to a
50/50 schedule. Citing KRS 403.270 and KRS 405.020, he states that equal
parenting time between the biological parents in a custody dispute must be
presumed as a matter of law.
A family court’s custody determination will not be disturbed unless
there is an abuse of discretion. Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky.
2008). “Abuse of discretion implies that the family court's decision is
unreasonable or unfair.” Id. (internal citation and quotation omitted). Upon
careful review, we find no abuse of discretion in the family court’s denial of
Telek’s motion to modify the custody arrangements in this case.
In making its August 8, 2008, custody determination, the family court
found as follows:
John Telek, the father, has repeatedly requested
equal parenting time with [the minor child]. On
November 28, 2000, Judge Douglas Stephens entered an
order establishing joint custody and set forth specific
parenting time for John. . . . That order awarded the
parties joint legal custody and named the mother,
Samantha Daugherty (now Bucher) as the primary
residential parent. . . .
Since that order there have been numerous
attempts to resolve the parties’ differences through
counseling, mediation, and hearings, but unfortunately to
no avail. Dr. Ed Connor at one point recommended joint
legal custody with an alternating 3 day schedule for
parenting time. However, that recommendation was
based on many factors including continued therapy and
mediation and, most importantly, the parties’ ability to
cooperate with each other. Over the years the parties
have discontinued therapy, failed to mediate most issues
and have shown an inability to cooperate on even
insignificant issues. In fact, within the past year the
hearings reveal a total lack of respect for each other and
often [the minor child’s] best interest. . . .
The Court withheld issuing orders hoping the
parties would recognize the need for them to cooperate
for [the minor child’s] sake. However, it has become
painfully clear that the parties cannot and will not act in
[the minor child’s] best interest. Rather, they continue to
place their lack of respect for each other and their need to
control the situation over [the minor child’s] needs and
wants. . . .
[Telek’s] motion for shared parenting time is
DENIED. The Court is aware that Dr. Ed Connor and
the [guardian ad litem] have recommended shared
parenting time with alternating parenting days. Dr.
Connor suggested every 3 days, the [guardian ad litem]
suggested every 7 days. The Court finds this would not
be in [the minor child’s] best interest nor would it resolve
the basic problem between the parents – a lack of
communication and cooperation. In fact, the Court
believes this would cause more problems for [the minor
child] than it would resolve.
Although denying Telek’s motion to change the custody arrangements to a 50/50
schedule, the family court did grant Telek three additional weeks of “uninterrupted
parenting time” during the minor child’s summer vacation.
Telek argues on appeal that the family court’s order must be set aside
because it fails to make any findings of fact to support its deviation from the
recommendations of a custody evaluator and the guardian ad litem. This is simply
false. As set forth above, the outdated recommendation of the custody evaluator
(made in 2000 when the child was a toddler) was no longer viable because it was
premised on the satisfaction of many conditions that were never met. The order
further explained that increasing the father’s parenting time at this juncture was not
in the minor child’s best interest due to the high degree of conflict between the
Telek claims he should not be “punished” for the parties’ inability to
communicate or cooperate because he shares no blame for the situation. The
family court’s order indicates otherwise. Upon review of this record, we hold that
the family court’s finding on this issue is not clearly erroneous. Kentucky Rules of
Civil Procedure (CR) 52.01; Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008).
As implicitly noted in the family court’s order, Telek’s repeated litigation seeking
to gain equal parenting time is counterproductive in the absence of any
demonstration by Telek that he is willing to cooperate with or respect Bucher for
the sake of their child. It has long been established that cooperation and
communication between the parents is essential to facilitating a successful shared
parenting arrangement. See Squires v. Squires, 854 S.W.2d 765, 769 (Ky. 1993);
Gertler v. Gertler, __ S.W.3d __, __ (Ky. App. 2010). As these conditions are not
present here, we discern no abuse of discretion in the family court’s denial of
Telek’s motion to increase his parenting time to a 50/50 custody sharing
Telek also appeals the granting of a right of “first refusal” to Bucher
in an order entered on July 14, 2008. According to this order, Telek was to have
visitation every other weekend with the minor child during the summer of 2008.
However, Bucher was to be given the “right of first refusal, whenever [Telek was]
going to be away from the child for more than one hour.” Telek claims that not
giving him a corresponding right of first refusal whenever the child was with
Bucher was unfair and in violation of his constitutional right to equal protection
under the law.
As explained by Bucher, this provision was enacted due to the fact
that Telek had left the then ten-year-old child unsupervised that summer. As
Bucher was available during this time, the family court felt that a right of first
refusal to her during times when Telek was unavailable to supervise the child was
reasonable. Nothing in this determination reflects any arbitrary or unequal
treatment of Telek. Telek’s constitutional argument is without merit.
Telek next argues that the family court committed reversible error
when it denied his motion to reduce his child support obligation without first
preparing a child support worksheet and making specific findings regarding the
parties’ current incomes. “As are most other aspects of domestic relations law, the
establishment, modification, and enforcement of child support are prescribed in
their general contours by statute and are largely left, within the statutory
parameters, to the sound discretion of the trial court.” Van Meter v. Smith, 14
S.W.3d 569, 572 (Ky. App. 2000). After careful review of this record, we hold
that there was no abuse of discretion in the family court’s failure to prepare a child
support worksheet or to make findings regarding the parties’ current incomes in
As argued by Telek, KRS 403.211(2) provides that the child support
guidelines set forth in KRS 403.212 “shall serve as a rebuttable presumption for
the establishment or modification of the amount of child support.” However, once
a child support obligation is established, modification may occur “only upon a
showing of a material change in circumstances that is substantial and continuing.”
In this case, the family court found that Telek had been ordered in
2001 to pay, pursuant to the guidelines, $883.08 per month based on Telek’s
ability to earn $50,000.00 per year as a self-employed contractor with over twenty
years of experience. This child support was later reduced in 2002, by agreement of
the parties, to $520.00 per month. As there was no showing of a material change
in circumstances, the family court concluded that a modification of the current
figure was not warranted.
Telek argues that the $50,000.00 of income imputed to him back in
2001 was erroneous. However, that order is not currently before the court. He
further argues that the $520.00 per month figure established by an August 12,
2002, agreed order is not supported by substantial evidence. That order is also not
before this Court. Rather, the pertinent question to this appeal is whether Telek
presented any evidence demonstrating that a material change of circumstances
occurred since the entry of the 2002 order. We agree with the family court that no
such showing was made. Without a showing of a material change in
circumstances, preparation of a child support worksheet and findings regarding the
parties’ current incomes are not necessary. Telek’s argument to the contrary is
Telek next contends that the family court erred in entering a contempt
order against him. On October 31, 2008, the trial court held Telek in contempt for
violating the family court’s previous order setting guidelines for telephone contact
with the minor child. Telek was sentenced to three days in jail, with the sentence
being conditionally discharged for a period of two years, provided that Telek did
not violate any further court orders.
“[W]e will not disturb a court's decision regarding contempt absent an
abuse of its discretion.” Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007).
“The test for abuse of discretion is whether the trial [court's] decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
After careful review of these circumstances, we find no abuse
of discretion in the family court’s entry of this contempt order. A September 10,
2008, order of the family court set forth the following guidelines for telephone
contact with the minor child:
Phone visitations shall take place around 8:30 p.m. every
evening that the parent has not seen and talked to the
child. Each call shall last approximately ten (10)
minutes. The call shall be private between child and
parent. Mother and Father shall work in a flexible
manner with each other to assure the phone visitations
take place in a non-stressful environment for the minor
The family court found that Telek violated the above by repeatedly
calling Bucher’s home in a harassing manner on at least one occasion, calling
when he had already seen or spoken with the minor child, and talking with the
child for a period in excess of ten (10) minutes on at least one occasion. Telek
argues that holding him in contempt for the repeated calls was unfair since “there
was no mention of the number of times dad should call when there is no answer.”
He further argues that holding him in contempt for talking to his child in excess of
the time allowed by order or calling on days when he had already seen or spoken to
the child is not reasonable. As noted by Bucher, Telek’s phone behavior had been
an ongoing problem and exceedingly disruptive to her and her family. The family
court clearly agreed since it entered an order imposing the guidelines set forth
above. There was nothing unreasonable or unfair in the family court’s
enforcement of its order.
Telek next contends the family court acted outside its authority in
ordering the parties to “participate in binding arbitration.” He claims that “binding
arbitration” was set forth in the following provision of the family court’s
September 16, 2008, order: “The parties shall participate in Parenting
Coordination with Dr. Jean Deters.” Telek argues that such a requirement amounts
to a delegation of the trial court’s judicial function to a third party.
KRS 403.270(2) directs that courts shall determine custody of
children “in accordance with the best interests of the child.” In cases where “the
child's physical health would be endangered or his emotional development
significantly impaired,” KRS 403.330(2) grants trial courts the authority to “order
the local probation, another appropriate local entity, or if currently involved in the
case, the child welfare department to exercise continuing supervision over the case
to assure that the custodial or visitation terms of the decree are carried out.”
In this case, the parties were ordered to participate in a type of
counseling service for parents who are unable to communicate or reach agreements
regarding the day-to-day custody arrangements of their children. A parenting
coordinator is assigned to help the parties work together to accomplish this task. In
instances where the parties are unable to agree, the parenting coordinator will make
a decision that is in compliance with the family court’s orders. If either party
should disagree with the parenting coordinator’s determination, they may turn to
the family court for a final decision.
Telek contends that participation in such counseling is a form of
“binding arbitration” because he is required to abide by a parenting coordinator’s
decision during the time it takes to obtain a final decision from the family court.
The guardian ad litem argues that the parenting coordinator is simply supervising
the court’s orders to ensure that their terms are carried out pursuant to the authority
set forth in KRS 403.330(2). We agree with the guardian ad litem that requiring
parties to participate in such counseling does not constitute an improper delegation
of the family court’s judicial function. See Akers v. Stephenson, 469 S.W.2d 704,
706 (Ky. 1970) (trial court has inherent authority to enforce its own orders).
Rather, in a high conflict case such as this, the parenting coordinator merely assists
the court by ensuring that the court’s mandates are being carried out in a manner
that serves the best interests of the child.
In his final argument, Telek argues that the family court acted outside
its authority in ordering the parties to purchase Family Wizard software at a cost of
one hundred dollars ($100) per year to each party. Telek contends that the
software is unnecessary and not in the best interests of the child. The guardian ad
litem argues that the software is a critical tool in assisting the court to supervise
and enforce its custody determinations. Among other things, the software provides
time-stamped documentation regarding the parties’ communication, allows the
guardian ad litem and the trial court to monitor the parties’ communications,
provides interactive family scheduling and information management, and provides
secure storage of medical history and emergency contacts. In light of the high
degree of conflict present in this case, we agree with the guardian ad litem that the
family court was within its authority and discretion to order the use of this
software. As set forth above, along with parenting coordination, the Family
Wizard software assists the trial court in supervising its orders and reducing
excessive litigation through the facilitation of effective communication between
Having been presented with no reversible error, we hereby affirm the
orders of the Kenton Family Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl E. Knochelmann, Jr.
Samantha D. Bucher, Pro Se
Fort Thomas, Kentucky
BRIEF OF GUARDIAN AD LITEM
FOR MINOR CHILD, J.T.:
Joshua B. Crabtree