DALE (NOW PREWITT) (NATASHA RENEE) VS. DALE (BENJAMIN LEE)
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RENDERED: APRIL 2, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001437-ME
NATASHA RENEE DALE (NOW PREWITT)
v.
APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 00-CI-00009
BENJAMIN LEE DALE
APPELLEE
OPINION AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND WINE, JUDGES.
WINE, JUDGE: Natasha Renee Dale (now Prewitt) appeals from an order of the
Montgomery Circuit Court which denied her motion to designate her as the
residential custodian of her daughter, and granted the motion by Benjamin Lee
Dale to limit Natasha’s time-sharing. We find that the trial court did not abuse its
discretion by denying her motion. However, while the trial court may have been
justified in limiting Natasha’s time-sharing, the court abused its discretion by
failing to set out the terms and conditions of Natasha’s time-sharing. Hence, we
affirm in part, reverse in part, and remand for additional findings and entry of a
new order.
Natasha and Benjamin Dale were divorced by a decree of the
Montgomery Circuit Court entered on June 6, 2000. Prior to entry of the decree,
Natasha and Benjamin entered into a settlement agreement which specified that
they were to share joint custody of their daughter, Madisen. The agreement
designated Natasha as the primary residential custodian with Benjamin having
specified time-sharing. The trial court’s decree adopted the parties’ agreement.
On August 16, 2005, Benjamin filed a motion to modify the custody
arrangement. In support of the motion, Benjamin cited Natasha’s disruptive
behavior at Madisen’s school, Madisen’s excessive tardiness and absenteeism at
school, Natasha’s actions interfering with Madisen’s relationship with him, and
other allegations of misconduct by Natasha. After a hearing, the trial court found
that the allegations were substantiated and justified a modification of custody.
Thus, the court directed that the parties would retain joint custody, but designated
Benjamin as Madisen’s residential custodian. On appeal, this Court affirmed the
trial court’s decision. Dale v. Dale, 2007 WL 1519530 (Ky. App. 2007)(2006-CA001889-ME).
On April 9, 2009, Benjamin filed a motion to modify Natasha’s timesharing with Madisen. Natasha responded with a motion seeking to be designated
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as Madisen’s residential custodian. After conducting a hearing on April 29, 2009,
the trial court temporarily suspended Natasha’s time-sharing with Madisen. The
court also directed that Benjamin enroll Madisen in counseling.
The court conducted a further review of time-sharing on May 15,
2009. The court stated that it was too early to make a permanent decision
regarding time-sharing. However, the court found that Madisen should have timesharing with Natasha and Natasha’s mother, but only at Benjamin’s “reasonable
discretion.” Following another review on June 19, 2009, the court made this
arrangement permanent. The court allowed regular time-sharing to resume, but
stated that it would be at Benjamin’s discretion and contingent upon good behavior
by Madisen. The court also ordered that Madisen should continue in counseling
and that all recommendations of the counselor be followed.
On appeal, Natasha first argues that the trial court abused its
discretion by refusing to directly interview Madisen, by denying her motion to seal
the record, and by denying her motion to order alcohol and drug testing for
Benjamin and his wife Joyce. We find no abuse of discretion on any of these
matters.
The decision to interview the child is discretionary with the court.
Kentucky Revised Statute (“KRS”) 403.290(1). In this case, the court determined
that an interview with Madisen would not be helpful. Given the evidence, we
cannot find that the court abused its discretion. Likewise, the trial court has the
discretion to deny access to cases and files. See Roman Catholic Diocese of
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Lexington v. Noble, 92 S.W.3d 724 (Ky. 2002). Since this case deals with a matter
involving a juvenile, the trial court would have been within its discretion to seal the
record. But sealing the record is not generally required in custody cases. While
we appreciate that Natasha seeks this measure to protect Madisen’s privacy, we
cannot find that the trial court abused its discretion by denying the motion.
Finally, the trial court considered Natasha’s allegations about drinking in
Benjamin’s household and found them to be not credible. Given this finding, the
court did not abuse its discretion by denying Natasha’s motion to require drug and
alcohol testing for Benjamin.
Additionally, Natasha argues that the trial court abused its discretion
by giving Benjamin sole discretion on determining whether she receives timesharing with Madisen. She also argues that the trial court abused its discretion by
denying her motion to transfer residential custody to her. A modification of timesharing generally does not alter the nature of the custody order. Thus, the trial
court is not bound by the statutory requirements that must be met for a change of
custody. Rather, the court can modify time-sharing based on the best interests of
the child as set out in KRS 403.320(3). Pennington v. Marcum, 266 S.W.3d 759,
768 (Ky. 2008). Our review of the circuit court's decision to modify time-sharing
is limited to determining whether substantial evidence supported the court's
findings of fact and whether the court abused its discretion. Id. at 769.
Now we turn to the primary issue in this case – Benjamin’s motion to
restrict Natasha’s time-sharing with Madisen and Natasha’s responsive motion to
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be designated as Madisen’s primary residential custodian. The parties have had a
number of disputes about their respective approaches to parenting. In the prior
action, Benjamin stated that Natasha placed inordinate pressure on Madisen to
have an appearance and to engage in activities beyond her maturity level. In his
current motion, Benjamin states that the problem is ongoing, and Madisen
continues to wear excessive makeup. Benjamin also accuses Natasha of
encouraging Madisen’s hostile and defiant behavior toward him. Benjamin
testified that Madisen’s attitude and behavior usually became worse after she spent
time with Natasha. He is concerned that Natasha fails to monitor Madisen’s use of
the internet, and that she encourages Madisen’s disrespectful behavior toward him
and Joyce. He also testified that Natasha has sent cell phones home with Madisen
despite his belief that that Madisen is too young to have a cell phone.
The current dispute over time-sharing arose over Madisen’s use of the
internet, particularly her maintenance of a page on myspace.com. Benjamin is
concerned that Madisen represents herself as 16 or 17 years old on the page and
that she has a number of male “friends” on her page who are in their late teens,
twenties and thirties. Benjamin also objected to a number of pictures which
Madisen had posted on her myspace page, as well as to the lack of privacy controls
on the page.
Benjamin confronted Madisen about her internet use on March 15,
2009, shortly after learning about the myspace page. He recorded that
confrontation and submitted the video as an exhibit at the hearing. Madisen did
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not appreciate Benjamin’s concerns about the danger of a twelve-year old posting
personal information about herself on a public site. Of greater concern, however,
was Madisen’s hostile and disrespectful attitude toward her father. In addition,
Madisen made several comments in the video about trying to kill herself.
Natasha states that she knew about Madisen’s myspace page and that
she monitors Madisen’s use of the internet. She sees no problem with Madisen
having a myspace page or a cell phone. Natasha also asserts that Madisen
attempted to kill herself. She states that she found scratches on Madisen’s wrist,
and Madisen explained that she had tried to slit her wrist using plastic stars which
were decorating her bedroom. Benjamin responded that Madisen received the
scratches while playing with a puppy, but in any event he removed the stars from
her bedroom.
Natasha complains that Benjamin has failed to continue counseling
for Madisen. Benjamin responded that Madisen was seeing a counselor after the
prior change in custody, but he discontinued the sessions because Madisen seemed
to be doing better. The trial court directed Benjamin to resume counseling for
Madisen.
Natasha also alleges that they have failed to care for Madisen’s dental
or mental health needs. Benjamin states that he has taken Madisen to the dentist,
but she was not cooperative during several of the procedures. He admits, however,
that he delayed some additional treatment for Madisen after he lost his dental
insurance coverage through work.
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Natasha next alleges that Benjamin and his wife Joyce drink
excessively in front of Madisen. Natasha testified that Madisen has told her that
she has seen Benjamin and Joyce drink two cases of beer a day. Benjamin and
Joyce denied these allegations, although Benjamin admitted that he drinks beer on
a daily basis and Joyce stated that she drinks once or twice a week. Both stated
that they do not drink to excess in front of Madisen. The trial court stated that it
believed Madisen had made these allegations to Natasha and concluded that they
were not credible.
It is clear that Benjamin and Natasha have fundamental disagreements
about the best way to parent Madisen. Under these circumstances, it would seem
that joint custody may not be the most practical custody arrangement. But since
neither party requested a modification of custody, the only question before the trial
court was whether time-sharing and residential custody should be modified.
The trial court believed that Natasha was the source of much of the
“drama” and disruption in Madisen’s life. The court also found many of Natasha’s
allegations not to be credible. It is within the province of the trial court as the factfinder to determine the credibility of the witnesses and the weight given to the
evidence. See Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). See also,
Kentucky Rule of Civil Procedure (“CR”) 52.01. Under the circumstances, we
cannot find that the trial court clearly erred in its factual findings, or that it abused
its discretion by denying Natasha’s motion to designate her as the residential
custodian.
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However, the trial court’s order limiting Natasha’s time-sharing with
Madisen is more problematic. We agree with the trial court that the situation with
Madisen appears to have devolved to the point that it is threatening to spin out of
control. Since Benjamin is the residential custodian, the trial court reasonably
found that he needs to have the tools to influence Madisen’s behavior.
Furthermore, the trial court believed that Natasha was encouraging Madisen’s
behavior. Thus, the trial court was within its discretion to temporarily suspend
Natasha’s time-sharing and to subsequently restrict it.
However, KRS 403.320(1) specifies that “[a] parent not granted
custody of the child is entitled to reasonable visitation rights unless the court finds,
after a hearing, that visitation would endanger seriously the child’s physical,
mental, moral, or emotional health.” In this case, the trial court severely limited
Natasha’s time-sharing without making an express finding that time-sharing would
seriously endanger Madisen’s physical, mental, moral, or emotional health. Even
if such a finding may be implied from the court’s order, KRS 403.320(1) requires
that “[u]pon request of either party, the court shall issue orders which are specific
as to the frequency, timing, duration, conditions, and method of scheduling
visitation and which reflect the development age of the child.”
Here, the trial court did not issue any specific order regarding timesharing, but simply gave Benjamin the sole discretion to decide when Natasha has
time-sharing with Madisen. Although the trial court has considerable discretion to
set time-sharing, it may not abrogate that discretion to a standing order or rule.
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See Drury v. Drury, 32 S.W.3d 521 (Ky. App. 2000) (a standard time-sharing
scheduled should not be controlling to determine reasonable time-sharing).
Likewise, we do not believe that it is appropriate for the court to allow one parent
to have complete discretion over the child’s time-sharing with the other parent
unless there are compelling circumstances which warrant such an arrangement.
Consequently, we must set aside the trial court’s order and remand for
additional findings and a new order regarding time-sharing. The trial court may
require additional evidence to make this determination, including testimony by the
parties and recommendations by a custodian evaluator or counselor familiar with
the parties and with Madisen. Thereafter, the court must enter a time-sharing order
that is specific as to the frequency, timing, duration, conditions and method of
scheduling time-sharing and which reflects Madisen’s development, age, and
needs. Further, the trial court may significantly restrict Natasha’s time-sharing if it
finds from the evidence that time-sharing would seriously endanger Madisen’s
physical, mental, moral, or emotional health.
Accordingly, the order of the Montgomery Circuit Court is affirmed
in part, reversed in part, and remanded for additional findings and entry of a new
order as set forth in this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
NO BRIEF FILED FOR APPELLEE
Nanci M. House
Winchester, Kentucky
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