BEST (JUSTIN B.) VS. PACKMAN (MEGAN E.)
Annotate this Case
Download PDF
RENDERED: FEBRUARY 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001109-ME
JUSTIN B. BEST
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 08-CI-00268
MEGAN E. PACKMAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; CLAYTON AND STUMBO, JUDGES.
STUMBO, JUDGE: Justin B. Best appeals from an Order of the Daviess Circuit
Court denying his motion to modify a prior custody Order. Best contends that the
circuit court failed to properly examine the child’s best interest and that its Order
was not supported by substantial evidence. For the reasons stated below, we affirm
the Order on appeal.
Child “B.B.” was born in 2003 to parents Justin B. Best and Megan E.
Packman. At the time of the child’s birth, Best was 21 years old and Packman was
16. They were not married.
Best, Packman and the child moved in with Best’s parents, where they
continued to live for approximately three years. In early 2006, Best and Packman
separated. Best initiated a paternity action which ultimately resulted in an Order
establishing a joint custodial arrangement with Packman serving as primary
residential custodian. It is uncontroverted that the parties ended up sharing time
with B.B. about equally. B.B. would often move between the residences of Best
and Packman on a daily or almost daily basis.
In February 2008, Best filed the instant action in Daviess Circuit
Court seeking to be designated as B.B.’s primary custodian. As a basis for the
proposed change in custody, Best noted that B.B. was entering kindergarten and
that the current arrangement was not suitable for a school - aged child. Packman
responded pro se, and the Domestic Relations Commissioner conducted
evidentiary hearings in June 2008. Best alleged that Packman was not suitable to
be primary custodian of B.B. In support of this contention, he pointed to a 2005
Domestic Violence Order (“DVO”) and a 2007 shoplifting charge involving
Packman. After taking proof, the Commissioner made findings and rendered a
recommended Order that the parties continue to have joint custody of B.B. and that
Packman be designated as primary custodian. In reaching this conclusion, the
Commissioner noted that the DVO was more that two years old, and that Packman
-2-
had explained what occurred during the shoplifting incident and that it was not
grounds for denying custody.
The matter proceeded in circuit court, with an Order rendered on June
11, 2009, restraining each party from being within 1000 feet of the other except as
required for visitation and school events. The court also ordered the parties to
tender for the court’s consideration any proposed findings of fact, conclusions of
law and judgment. A preliminary custody Order was rendered on September 4,
2008, to which both parties filed motions to alter, amend or vacate. On November
25, 2008, an Order was rendered wherein the court adopted the Commissioner’s
Recommended Order of July 2, 2008, upon finding it to be supported by
substantial evidence. The court noted that Best was seeking a change in custody
occurring more than two years after the original custody Order, thus invoking
Kentucky Revised Statutes (KRS) 403.340(3). It noted that in order to justify a
change in custody, KRS 403.340 required a finding of a change in circumstances
and an analysis of the child’s best interest. The court stated that the primary
change in circumstances relied on by Best was that B.B. was about to enter
kindergarten, that Packman had moved several times since the parties stopped
living together, and the 2007 shoplifting allegation. After noting that the other
grounds relied upon by Best were known to him when he consented to the original
custody decree, it found that B.B.’s age and Packman’s changes of living
arrangements did not create such a change in circumstances as to justify a
modification of custody.
-3-
Best then moved for a new trial, and a hearing on the motion was
conducted on January 6, 2009. A resultant Order was rendered on January 13,
2009, referring the matter back to the Commissioner to review the record and make
specific findings of fact and amended recommendations, if any, as to the custodial
arrangements which would serve B.B.’s best interest. In response, the
Commissioner rendered additional findings and conclusions on February 4, 2009,
and recommended that it would be in B.B.’s best interest to have Packman remain
as the primary custodian.
Best filed exceptions to the February 4, 2009 Recommended Order,
and Packman moved to reopen the record to take additional proof to support the
February 4, 2009 Recommended Order. On May 4, 2009, the court again set out
various findings and conclusions relating to Best’s original motion to change
custody. It denied the motions for a new trial and to reopen the record, and
reaffirmed its July 2, 2008 Order adopting the Commissioner’s recommendations
as supported by substantial evidence. This appeal followed.
Best argues that the circuit court improperly failed to make essential
findings regarding B.B.’s best interest as required by KRS 403.270 and KRS
403.340. He also maintains that the court and the Commissioner incorrectly
concluded that the consideration of any evidence in support of B.B.’s best interest
is limited by statute to that which occurred only in the last two years. Best goes on
to argue that the best interest standard includes consideration of the risk of mental,
-4-
emotional or physical harm, and maintains that the award of primary custody to
Packman is not supported by substantial evidence.
KRS 403.340(3) states that,
If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, the court shall
not modify a prior custody decree unless after hearing it
finds, upon the basis of facts that have arisen since the
prior decree or that were unknown to the court at 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.
Thus, in order to prevail on a motion to change custody, Best must
demonstrate using facts that have arisen since the prior decree that a change has
-5-
occurred in the circumstances of the child or his custodian, and that the
modification is necessary to serve the best interests of the child. Best alleged in
relevant part that B.B. was now at an age where the current time-sharing
arrangement was not suitable; that Packman had mental health and violent outburst
issues; and, that Packman had entered a guilty plea to a charge of shoplifting. The
substance of his argument was that these factors combined to demonstrate that he
should be designated as the primary residential custodian.
We are not persuaded by Best’s contention that the circuit court
improperly failed to make findings of fact related to these issues specifically or to
KRS 403.340 generally. As to Best’s contention below that Packman had mental
health issues and had engaged in violent outbursts, the court noted that “these
conditions existed at a time when the parties lived together and for several years
prior to the filing of the Petition for custody” and therefore did not warrant
consideration as to whether Packman was unfit for custody. This finding is
supported by the record and the law, in that KRS 403.340 requires the movant to
rely on “facts that have arisen since the prior decree . . . .” Packman’s alleged
mental health issues and violent outbursts pre-dated the entry of the prior decree,
and we find no error on this issue.1
The court also expressly addressed Packman’s shoplifting conviction.
While stating that, “[t]he Court may not agree with the Commissioner on that one
point,” i.e., the Commissioner’s implicit determination that the conviction was of
1
It merits noting that Packman’s testimony was not recorded, and neither party has introduced a
narrative statement to supplement the record.
-6-
little consequence in the custody analysis, the court noted that “both parties have
lacked maturity in their decision-making processes in the past.” In any event, it
cannot reasonably be argued that the court failed to consider Packman’s shoplifting
conviction as part of its broader custody analysis.
Similarly, we are not persuaded by Best’s broader contention that the
Court failed to make sufficient findings of fact or that its conclusions were not
supported by substantial evidence. We also do not agree with Best’s assertion that
the Court refused to consider any evidence occurring more than two years prior to
his motion to amend custody. On January 13, 2009, the court referred the matter
back to the Commissioner for additional findings of fact in support of the
Commissioner’s conclusion that it was in B.B.’s best interest not to modify
custody. These findings subsequently were adopted and reiterated by the court.
As noted above, the findings addressed Best’s contention specifically and KRS
403.340 generally. The burden of proof, however, does not rest with the circuit
court to demonstrate that the original custody decree was proper. Rather, the
burden rests with Best to demonstrate that custody should be modified in
conformity with KRS 403.340(3). In reviewing decisions in a child custody case,
the test is not whether we would have decided differently, but whether the findings
of the trial judge were clearly erroneous or he abused his discretion. Eviston v.
Eviston, 507 S.W.2d 153 (Ky. 1974). The court’s findings are not clearly
erroneous, and the correct legal standard was applied to the facts as set out in KRS
403.340(3). We find no error.
-7-
For the foregoing reasons, we affirm the May 4, 2009 Order of
Daviess Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard T. Ford
Owensboro, Kentucky
John D. Austin
Owensboro, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
