JUDD (CLARK ALLEN) VS. JUDD (AMANDA BETH)
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RENDERED: MAY 27, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001234-ME
CLARK ALLEN JUDD
v.
APPELLANT
APPEAL FROM GREEN CIRCUIT COURT
HONORABLE DAN KELLY, JUDGE
ACTION NO. 07-CI-00189
AMANDA BETH JUDD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND KELLER, JUDGES; ISAAC,1 SENIOR JUDGE.
KELLER, JUDGE: Clark Allen Judd (Clark) appeals from the trial court's order
awarding the parties joint custody of their minor daughter, designating Amanda
Beth Judd (Amanda) as primary residential parent,2 and setting time-sharing. On
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute(s)
(KRS) 21.580.
2
The court used the term "primary residential custodian”; however, in Pennington v. Marcum,
266 S.W.3d 759, 765 (Ky. 2008), the Supreme Court of Kentucky stated that the appropriate
term is "primary residential parent." Therefore, we use that term when discussing the court's
order.
appeal, Clark argues that the trial court's order was not based on the facts, which, if
followed, would have compelled the court to designate him as primary residential
parent. Amanda argues that there were more than sufficient facts to support the
court's decision. Having reviewed the record, we affirm.
FACTS
Clark and Amanda married on May 3, 2002, separated on May 30,
2007, and their marriage was dissolved on March 25, 2009. One child, a daughter,
was born of the marriage.
Initially, the parties agreed to temporary joint custody with Clark
having time-sharing every other weekend. However, in July 2008, Clark filed an
affidavit alleging that the daughter had been sexually abused while in Amanda's
care. The court entered an emergency order, awarding temporary custody to Clark.
Amanda then filed a motion seeking a return of custody. The parties apparently
resolved their differences and entered an agreed order on August 22, 2008, stating
that they would resume temporary joint custody with week-to-week time-sharing.
The agreed order also provided that Amanda would not permit her daughter to
have any contact with the two boys who allegedly abused her.
Thereafter, the Kentucky State Police conducted an investigation of
the abuse charges. During the course of that investigation, the daughter, the
parties, their parents, and one of the alleged perpetrators were interviewed. The
daughter underwent a physical examination that revealed abnormal findings
"suggestive/consistent with child sexual abuse." However, the records from the
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investigation also indicate that the examination findings could have been the result
of an accident and an underlying medical condition. Furthermore, the daughter,
when interviewed a second time, stated that she had lied, and that Clark had told
her to do so. It appears from the record that the abuse claim against one of the
alleged perpetrators was found to be unsubstantiated and the other claim was found
to be substantiated. However, there was no finding of neglect or abuse against
either Amanda or Clark.
In addition to the above, the parties testified at the final custody
hearing and presented evidence calling into question each others' parenting skills
and character. Briefly, Clark alleged that Amanda had a spotty work record; had
participated in an adult website; had smoked marijuana and used cocaine; had
assaulted him; and spent three days in rehabilitation. Amanda alleged that Clark
had a problem with alcohol and drug abuse; that she and Clark smoked marijuana
and used cocaine; that Clark participated in the adult website; that Clark had issued
various threats against her and her family; that Clark had assaulted her and their
daughter; and that Clark had been unemployed and living with his parents for
several years.
Based on the evidence, the court found that both parties had a close
relationship with the daughter; that the daughter had a close relationship with her
maternal half-sister and her paternal grandparents; that Clark lead a "dual life,"
attending to the daughter when she was with him and "partying hard all week long"
when she was not with him; and that Amanda had "remarried into what appears to
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be a stable relationship, has established independent living for her and her children
and has a record of steady employment." Having made the above findings, the
court awarded the parties joint custody and awarded Clark time-sharing according
to the "standard visitation schedule."
Clark filed a motion to alter, amend, or vacate asking the court to
make additional findings of fact and arguing that the court misconstrued his
testimony about "partying," his employment, and his living arrangements. The
Court granted Clark's motion in part, amending its order by specifically quoting his
testimony regarding those matters. Furthermore, the court noted that the additional
findings requested by Clark consisted of
a litany of facts reflecting negatively on [Amanda] and
were addressed in finding #6 in the courts [sic] order.
Equally negative behavior by the petitioner could have
been adopted by the court in the findings. The court told
both parties, at the hearing, that neither would qualify for
parent of the year and each had terrible records in regard
to their behavior in the care of this child. However, the
court found that both parties were attempting to change
their behavior, therefore, the court did not base its
decision on their past bad behavior. The court based its
decision on what the court thought would be best for the
child based on the current circumstances.
Following entry of the order denying his motion to alter, amend, or vacate,
Clark filed this appeal.
STANDARD OF REVIEW
The standard of review in a child custody case is whether the lower court's
factual findings are clearly erroneous. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky.
App. 2005). "A finding of fact is clearly erroneous if it is not supported by
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substantial evidence, which is evidence sufficient to induce conviction in the mind
of a reasonable person." Id. The questions for the reviewing court are not whether
it would have come to a different conclusion, but whether the family court applied
the correct law and whether the family court abused its discretion. Id. at 219-20.
ANALYSIS
On appeal, Clark argues that the evidence compelled a finding in his favor.
In support of his argument, Clark cites Krug v. Krug, 647.S.W.2d 790 (Ky. 1983),
for the proposition that a "trial court does not just consider whether the past
misconduct of the parties has adversely affected a child, but rather it must consider
whether the misconduct indicates it is likely to adversely affect the child's wellbeing in the future."
However, Clark misreads the Supreme Court's holding. In Krug, the
appellant argued that the trial court impermissibly admitted and relied on her past
misconduct in awarding custody to the appellee. In addressing that issue, the
Supreme Court held that:
when the misconduct of a proposed custodian is
advanced as a factor in the determination of custody,
evidence of such misconduct may be heard and received,
but before giving any consideration to such misconduct,
the court must conclude, in his reasonable discretion, that
such misconduct has affected, or is likely to affect, the
child adversely. If such a determination is made, the trial
court may then consider the potential adverse effect of
such misconduct as it relates to the best interests of the
child.
Id. at 793. (Emphasis added). The Supreme Court did not hold that the trial court
was required to consider such misconduct, only that it could. Furthermore, the trial
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court herein considered Amanda's past misconduct, as well as Clark's, and
determined that designating Amanda as primary residential parent is in the
daughter's best interest.
The parties demonstrated an inability to agree about time-sharing and who
should be the primary residential parent. Therefore, the trial court was forced to
make those determinations for them. Clark's arguments to the contrary
notwithstanding, the evidence did not compel the trial court to designate him rather
than Amanda as primary residential parent. In fact, as the trial court noted, both
parties exhibited significant deficits as parents. As is often the case, the trial court
was faced with the dilemma of forging a solution in the best interest of the minor
child, which it did. We discern no reversible error in its choice; therefore, we
affirm.
CONCLUSION
For the foregoing reasons, we affirm the trial court's award of joint custody,
its designation of Amanda as primary residential parent, and its award of standard
time-sharing to Clark.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph R. Stewart
Lebanon, Kentucky
Melinda M. Laslie
Bowling Green, Kentucky
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