RILEY (EDWARD WAYNE) VS. RILEY (DONNA LEE)
Annotate this Case
Download PDF
RENDERED: MARCH 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001066-ME
EDWARD WAYNE RILEY
v.
APPELLANT
APPEAL FROM CARTER FAMILY COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 03-CI-00419
DONNA LEE RILEY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, NICKELL, AND WINE, JUDGES.
LAMBERT, JUDGE: Edward Wayne Riley has appealed from the April 8, 2010,
order of the Carter Family Court modifying an earlier custody and time-sharing
order by granting sole custody of his daughter, Hailey, to his former wife, Donna
Lee Riley, and by disallowing his visitation with Hailey. He also appeals from the
May 19, 2010, order denying his motion to alter, amend, or vacate that order.
After carefully reviewing the record, including the recordings of the hearings, as
well as the parties’ arguments, we reverse the portion of the order awarding sole
custody of Hailey to Donna, and affirm the portion suspending Edward’s visitation
with Hailey.
Donna and Edward were married on May 2, 1997, in Carter County,
Kentucky. Two children were born of the marriage: Hailey Dawn Riley, born
December 22, 1997, and Devin Lathan Riley, born October 4, 2000. Donna and
Edward separated on October 9, 2002, and they filed a joint petition for dissolution
of marriage on November 5, 2003. At the time they filed the petition, Donna was
twenty-two years old and Edward was twenty-six years old. In their petition,
Donna and Edward requested that their marriage be dissolved and that the family
court incorporate the separation agreement they had entered into and filed along
with their petition. In addition to property division, the separation agreement
provided that Donna and Edward were to have joint custody of the two children,
with Donna having physical possession. In other words, Donna was acting as the
primary residential parent. Edward was to have liberal time-sharing, at a minimum
in accordance with the Carter County Uniform Visitation Guidelines. Edward also
agreed to pay $150.00 per month in child support. On January 16, 2004, the family
court entered a decree of dissolution which incorporated the separation agreement.
The record also reflects that child support payments were to be paid through the
Cabinet for Health and Family Services. We further note that Donna has had two
-2-
more children, one during the period of separation and the other subsequent to the
divorce.
In 2009, the Commonwealth filed a motion on Donna’s behalf to
increase Edward’s child support obligation to $408.18 per month.
On September 2, 2009, Edward filed a motion to modify the decree of
dissolution regarding custody and time-sharing of Hailey and Devin. In the
motion, Edward stated that Devin had been in his possession for the past four
months and that Donna had not requested his return. He further stated that Donna
refused to let him have visitation with Hailey and that he had not had time-sharing
with her since May 2009, despite his requests.
In response, Donna stated that she had filed a custodial interference
charge against Edward when he failed to return Devin after their July 28, 2009,
time-sharing. She further denied that she had ever prevented Edward from
exercising his time-sharing with Hailey.
The family court held a hearing on Edward’s motion on October 1,
2009. At the hearing, Edward testified that he was unemployed and lived with his
parents. His income was derived from unemployment benefits. Regarding the
children, Edward stated that his and Donna’s previous custody agreement had
worked well until recently. He stated that Devin was terrified of Donna’s live-in
boyfriend, Lowell Jason Gilliam, and Edward introduced certified copies of several
domestic violence orders (DVO) that had been entered against Gilliam in the past
at the request of Gilliam’s father and two previous wives. Edward also introduced
-3-
court documents showing that Gilliam’s visitation with his own children was
ordered to be supervised. Edward then testified to an e-mail from Donna to Devin
that contained an inappropriate photograph of a naked woman as well as an
inappropriate “quiz” appearing on Hailey’s MySpace page, which incorrectly
showed that she was eighteen years old rather than eleven.
The second witness to testify was Scott Taber, the father of Donna’s
fourth child. Taber has sole custody of their five-year-old son and expressed some
concern about the man with whom Donna was living. However, he also stated that
he knew Donna loved their son.
Finally, Donna testified that she had not kept Hailey from seeing her
father, but that Hailey did not want to see him. She discussed ongoing domestic
violence issues during her relationship with Edward, although she testified that she
never filed a formal complaint with the police. Donna admitted to knowing about
Hailey’s MySpace page and indicated she had no problem with it because only
family members and a few school friends had access to the page. Regarding the email to Devin, she admitted to receiving and responding to Devin’s e-mail, but
denied that the accompanying picture was hers. Regarding Gilliam, Donna stated
that he had never raised his voice to her or his hand against her and that she was
not concerned about either the restriction on his visitation with his children or the
DVOs entered against him in the past. Donna also testified that Edward said
horrible things about her to the children, including calling her a whore.
-4-
In addition to the testimony presented on the record, the family court
spoke in chambers, separately, with the children about their wishes and concerns.
Those discussions are not included in the certified record.
Following the hearing, the family court entered a temporary order on
October 2, 2009, stating that Donna’s and Edward’s animosity toward each other
prevented the communication necessary to continue the time-sharing arrangement
as it had been. The court then vacated the designation of a “primary physical
custodian” and put in place a trial period of time-sharing to give Donna and
Edward the opportunity to show their children that they could be civil and treat
each other with respect. For the trial period of four to six weeks, the family court
ordered equal time-sharing for Devin whereby he would spend alternating sevenday periods with each parent. For Hailey, the court ordered that she continue to
reside with Donna and have time-sharing with Edward on Sunday afternoons.
The parties returned to court for a status hearing on November 5,
2009. Donna indicated that Devin was doing well, but Hailey was not. Hailey
reported to Donna that Edward had been talking to her about the Wiccan religion.
Edward denied that he was trying to convert her, but stated that he was open to
learning about and teaching his children about all religions. Following the status
hearing, the family court appointed a guardian ad litem (GAL) for the children and
ordered the GAL to interview the children and file a written report with the court.
The GAL filed a report on February 4, 2010, detailing her discussions
with the children and recommendations. Based upon her separate discussions with
-5-
each child, the GAL indicated her belief that there had been inappropriate
discussions in the presence of the children about the other parent and about timesharing. She stated that Edward continued to make derogatory comments about
Donna to the children, and then told Hailey she would be just like her mother.
Hailey related that she was uncomfortable in her father’s presence and did not wish
to visit with him at all. The GAL then recommended that no time-sharing take
place until counseling had occurred. Regarding Devin, the GAL stated that he
appeared well adjusted, but expressed concerns about the long-term effect
Edward’s derogatory comments about Donna and Hailey in his presence might
have on him.
The matter then came before the court on March 19, 2010, for a final
custody hearing. In his memorandum filed prior to the hearing, Edward
specifically requested that he be named Devin’s primary residential parent and that
the court enter time-sharing orders between Devin and Donna, and between Hailey
and him. Furthermore, Edward requested that his visitation with Hailey not be
restricted in any way because there was no showing that visitation with him would
seriously endanger her pursuant to the applicable statute.
At the hearing, Donna testified about Edward’s continuing verbally
abusive behavior to Hailey. She described Hailey’s panic attacks and problems
sleeping due to nightmares. Edward testified that his relationship with his daughter
began to sour in the fall of 2009, when he tried to get Hailey back after an incident
between him and Donna’s boyfriend. He went on to testify that he did not believe
-6-
that Donna made correct decisions all of the time, but he admitted that he had
badmouthed Donna. Edward stated that he was stricter with the children and that
he pushed education with both of them. He also stated that Hailey never acted as if
she were afraid of him, but admitted he knew she felt more comfortable with
Donna. The family court, in the presence of the GAL, then interviewed both
children in chambers, which this Court has reviewed.1
On April 8, 2010, the family court entered an order ruling on the
pending motion to modify:2
This matter having come before the Court upon the CoPetitioner’s motion to modify timesharing and the Court
having conducted an evidentiary hearing, interviewed the
children herein, and having reviewed the record, hereby
finds and ORDERS as follows:
1. It is in the best interests of the parties’ son, Devin, that
the parties have joint custody. It is clear to the Court that
Devin loves both parents, but that the father has
obviously attempted to influence his testimony. The
mother shall be the primary residential custodian and the
father shall have visitation every weekend from 6:00 p.m.
on Friday until 6:00 p.m. on Sunday. The child shall be
exchanged at the maternal grandmother’s residence.
2. It is in the best interests of Hailey that the mother be
granted full custody. The Court finds that any contact at
this time would seriously endanger the emotional and
mental health of the child. The father has continuously
berated and degraded the child to the point where the
1
Because of the confidential nature of the in-chambers interviews, we shall not detail the judge’s
discussions with either Devin or Hailey.
2
We note that in one respect, the written order differs from the oral ruling made at the
conclusion of the hearing. The Judge orally ruled that Devin was to live with his father during
the week and then spend weekends with his mother. We presume this to mean that Edward was
to be Devin’s primary residential parent. However, the written order did not provide for this.
-7-
child feels afraid and helpless in his presence. Therefore
visitation with Hailey is suspended until further orders of
the Court.
3. The parents are ORDERED to immediately enroll and
complete parenting classes at Pathways. The parties shall
communicate properly when necessary in regard to the
children and . . . to accommodate them over and above
any desire to argue between themselves.
4. The Court ORDERS no contact or communication
between the Co-Petitioner and Lowell Jason Gilliam.
5. The parties shall turn over to the Court income
information within 20 days of entry of this order to
effectuate entry of an order regarding child support.
The record reflects that the Commonwealth filed another motion to modify
Edward’s child support obligation. The parties later entered into an agreed order,
entered by the family court on June 2, 2010, whereby they agreed that Edward was
to pay child support in the amount of $298.50 per month starting June 1, 2010.
Edward filed a timely motion to alter, amend, or vacate the April 8, 2010,
order. In the motion, Edward contended that the portion of the order awarding
Donna full custody of Hailey was improper and should be set aside because Donna
had never filed a motion to modify custody with an accompanying affidavit.
Edward also argued that the family court’s action in naming Donna as Devin’s
primary residential custodian did not take into consideration Devin’s desire to stay
with his father. Finally, Edward argued that the family court improperly restricted
his visitation with Hailey without any expert or medical evidence to support its
finding that visitation with him would seriously endanger her health. In her
-8-
response, Donna contends that the family court properly considered the best
interests of the children in making its decision as to the primary custodial parent
and properly determined that Hailey was under severe emotional distress based
upon the testimony presented.
On May 19, 2010, the family court denied Edward’s motion to alter, amend,
or vacate, and this appeal follows.
On appeal, Edward confines his three arguments to the rulings concerning
Hailey’s custody and his ability to have visitation with her. He argues that the
family court abused its discretion in awarding sole custody to Donna, was clearly
erroneous in finding that any contact between him and Hailey would cause serious
endangerment to Hailey, and abused its discretion by failing to award him
visitation. In her brief, Donna contests each of these arguments and states that the
family court did not abuse its discretion or commit any error in its rulings.
Our standard of review in the area of child custody and visitation is well
settled in this Commonwealth. “The party seeking modification of custody or
visitation/time-sharing is the party who has the burden of bringing the motion
before the court” and “the change of custody motion or modification of
visitation/time-sharing must be decided in the sound discretion of the trial court.”
Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). It is also well settled
that an appellate court may set aside a lower court’s findings:
only if those findings are clearly erroneous. And, the
dispositive question that we must answer, therefore, is
whether the trial court’s findings of fact are clearly
-9-
erroneous, i.e., whether or not those findings are
supported by substantial evidence. “[S]ubstantial
evidence” is “[e]vidence that a reasonable mind would
accept as adequate to support a conclusion” and evidence
that, when “taken alone or in the light of all the evidence,
... has sufficient probative value to induce conviction in
the minds of reasonable men.” Regardless of conflicting
evidence, the weight of the evidence, or the fact that the
reviewing court would have reached a contrary finding,
“due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses” because
judging the credibility of witnesses and weighing
evidence are tasks within the exclusive province of the
trial court. Thus, “[m]ere doubt as to the correctness of
[a] finding [will] not justify [its] reversal,” and appellate
courts should not disturb trial court findings that are
supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted).
First we shall address Edward’s argument that the family court abused its
discretion in awarding sole custody of Hailey to Donna. He contends that the
family court failed to follow the dictates of Kentucky Revised Statutes (KRS)
403.340 when it modified the original custody ruling. We agree that the family
court improperly modified the custody decree to award sole custody to Donna.
In Pennington v. Marcum, the Supreme Court of Kentucky extensively
addressed the concepts of custody and visitation/time-sharing and the distinction
between the two concepts when a party moves for modification.
Though it is often stated that there are two categories of
custody, sole custody and joint custody, there is in
practice a subset of joint custody that combines the
concept of joint custody with some of the patterns of sole
custody-often called “shared custody.” In shared
custody, both parents have legal custody that is subject to
some limitations delineated by agreement or court order.
-10-
Unlike full joint custody, time sharing is not necessarily
flexible and frequently mirrors a typical sole custody
pattern where the child may live with one parent during
the week and reside with the other on alternate weekends.
The weekend parent does not have “visitation,” a solecustody term which is frequently misused in this context,
but rather has “time-sharing,” as he or she is also a legal
custodian. However, in practice, the terms visitation and
timesharing are used interchangeably. Additionally, one
parent may be designated the “primary residential
parent,” a term that is commonly used to denote that the
child primarily lives in one parent’s home and identifies
it as his home versus “Dad’s/Mom’s house.” This
concept is frequently misnamed “primary residential
custody.”
Pennington, 266 S.W.3d at 764-65. The Court went on to discuss the difference
between a motion to modify custody and a motion to modify time-sharing:
Courts have struggled ever since the concept of joint
custody emerged with what part physical or residential
possession of the child plays in each type of custody.
However, a modification of custody means more than
who has physical possession of the child. Custody is
either sole or joint (or the subsets of each) and to modify
it is to change it from one to the other. On the other
hand, changing how much time a child spends with each
parent does not change the legal nature of the custody
ordered in the decree. This is true whether the parent has
sole or joint custody: decision-making is either vested in
one parent or in both, and how often the child’s physical
residence changes or the amount of time spent with each
parent does not change this.
Pennington, 266 S.W.3d at 767 (footnote omitted).
This Court has addressed the effect of Pennington on modification in several
cases, including Kelsay v. Carson, 317 S.W.3d 595 (Ky. App. 2010). In Kelsay,
this Court held that the mother’s motion to change custody, in which she sought to
-11-
be named the primary residential parent, was properly treated as a motion to
modify time-sharing and, therefore, was governed by KRS 403.320. In Gardner v.
Gardner, 2009 WL 1811730 *1 (Ky. App. 2009) (2008-CA-001862-ME), this
Court, in an unpublished opinion, provided a concise summary of the holding in
Pennington:
In Pennington, the Court clarified the distinction between
modification of custody (e.g., sole custody versus joint
custody) and modification of visitation/timesharing
arrangements (e.g. change in visitation schedule). Id.
The Court pointed out that if parents were granted joint
custody with one parent designated the primary
residential parent and the other parent exercising
visitation, this arrangement should be specifically
referred to as “shared custody.” Id. In Pennington, the
Court clearly held that a parent’s motion seeking to
change the primary residential parent was merely a
motion to modify visitation/timesharing and not one to
modify custody. Id. The Court further instructed that a
motion seeking to change the primary residential parent
was properly brought under Kentucky Revised Statutes
(KRS) 403.320, “Visitation of Minor Child.” Id. Under
KRS 403.320, the Court noted that the parent seeking to
be designated primary residential parent must
demonstrate that it was in the child’s best interest. Id.
Turning to the present case, it is apparent that Edward was seeking a change
in the designation of the primary residential parent when he filed his motion to
modify, not the nature of the custody itself. In his pretrial memorandum, he
specifically asked to be named Devin’s primary caretaker. At the hearing, Edward
spoke in terms of where he wanted the children to live. He stated that while he
initially wanted both children to live with him, he acknowledged that Hailey was
more comfortable with Donna. Therefore, he requested that Devin live with him,
-12-
that Hailey live with Donna, and that they both be granted visitation with the other
child. Accordingly, we perceive that Edward was not seeking a change in custody
itself, but in the designation of the primary residential parent. Furthermore, the
record does not reflect that Donna filed a motion to modify custody, specifically to
change the joint custody award regarding Hailey to sole custody. Therefore, we
must hold that the family court sua sponte decided to modify custody of Hailey
from joint to sole in Donna’s favor. This is not permitted by our statutory
structure.
Several cases have addressed whether the court may modify a prior custody
decree on its own motion, and have answered this question in the negative.
The procedure to modify permanent custody is clearly set
forth in KRS 403.340. Simply, the trial court was
without authority to modify the custody decree in
Deborah’s favor on its own motion. See Chandler v.
Chandler, Ky., 535 S.W.2d 71 (1975). The applicable
statute contemplates that a motion for modification be
made with supporting affidavits. As in the Chandler
case, supra, there was “no semblance of compliance”
with the mandates of KRS 403.340. The motions and
affidavits before the court concerned only the issue of
visitation. Bruce did not ask for or indicate that he even
wanted custody. In fact, he told Dr. Tadajewski that he
wasn’t sure he should be the day-to-day custodian of
Amanda. There being no request for the court to modify
custody, it appears the court was punishing Deborah for
being, in its opinion, unreasonable in withholding
visitation.
Gladish v. Gladish, 741 S.W.2d 658, 661 (Ky. App. 1987). Even the Pennington
Court made a similar statement: “[A] trial court’s sua sponte review and
-13-
modification of a custody order within the two year period was in error.”
Pennington, 266 S.W.3d at 767.
Accordingly, because the family court erred when it improperly modified
custody of Hailey from joint custody to sole custody in favor of Donna when no
such motion had been filed by either party, we must reverse that portion of the
order.
Next we shall address whether the circuit court abused its discretion in
restricting Edward’s visitation with Hailey. Our resolution of this issue also
includes Edward’s remaining argument that the circuit court erred in finding any
contact between him and Hailey would cause serious endangerment. The gist of
Edward’s argument is that Donna failed to present any expert evidence by a mental
health professional regarding any emotional or mental danger to Hailey.
KRS 403.320(3) addresses modification of a visitation order, providing as
follows: “The court may modify an order granting or denying visitation rights
whenever modification would serve the best interests of the child; but the court
shall not restrict a parent’s visitation rights unless it finds that the visitation would
endanger seriously the child’s physical, mental, moral, or emotional health.” In
support of this argument, Edward cites to this Court’s opinion in Hornback v.
Hornback, 636 S.W.2d 24 (Ky. App. 1982), for the statement that “[t]he standards
for modifying a judgment to disallow visitation are no less stringent than the
standards to deny visitation at the outset of the case.” Id. at 26. Hornback made it
clear that in a situation where one party wishes to modify visitation rights that have
-14-
previously been granted, “the court may not take away a parent’s visitation rights
without a showing that the child would be seriously endangered by visitation.” Id.
The Court went on to state that “[o]nce a finding has been made that the children’s
welfare is endangered, however, the court may not modify the judgment without
finding that the best interests of the child are served.” Id. We note that, as
opposed to in this case, Hornback involved a situation where the mother was
seeking to modify the initial decree, which denied her visitation privileges, so as to
allow her to have regular visitation with her three children. As applied to the
matter before us, the family court had to find that Hailey’s physical, mental, moral,
or emotional health would be seriously endangered in order to restrict or suspend
Edward’s visitation with her.
On this issue, the family court found that Edward “has continuously berated
and degraded the child to the point where the child feels afraid and helpless in his
presence.” Edward argues that the family court’s findings are clearly erroneous
because the evidence presented in the two hearing was inconsistent and because
there was inadequate evidence to establish any serious endangerment to Hailey.
The crux of his argument is that that no evidence from a mental health professional
was introduced on which the family court could base its findings. However,
Donna points out that KRS 403.320 does not require that parties must introduce
evidence from a mental health professional in order to establish the serious
endangerment standard. She also argued that testimony established the stress
-15-
Hailey felt while in her father’s presence, which manifested itself in panic attacks,
shortness of breath, and nightmares.
Based upon the limited circumstances of this case and despite our holding on
the first issue, we hold that the family court did not commit any error in
suspending Edward’s visitation with Hailey at this time based on a finding that she
would be seriously endangered. The testimony presented at the hearing as well as
information elicited from Hailey during her interview with the court are sufficient
to establish that at least her mental and emotional health would be seriously
endangered if visitation with Edward were to continue. The family court
specifically found that Edward “has continuously berated and degraded the child to
the point where the child feels afraid and helpless in his presence.” This finding is
supported by substantial evidence in the record and is therefore not clearly
erroneous. There is no requirement in KRS 403.320 that the parties introduce
evidence from a mental health professional to establish the serious endangerment
standard. We note that this ruling is of course subject to modification by the
family court upon the filing of an appropriate motion once the parties have
complied with the court’s directives to attend and complete parenting classes and
counseling has been undertaken.
For the foregoing reasons, the orders of the Carter Family Court are affirmed
in part and reversed in part. The ruling as to Edward’s visitation or time-sharing
with Hailey is affirmed, and the ruling as to the award of sole custody of Hailey to
-16-
Donna is reversed. This matter is remanded for further proceedings in accordance
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
MaLenda S. Haynes
Grayson, Kentucky
Derrick E. Willis
Grayson, Kentucky
-17-
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.