WALLS (WILLIAM NATHAN) VS. WALLS (NOW CONGER) (LORI WYNN)
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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NOT TO BE PUBLISHED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-001849-ME
WILLIAM NATHAN WALLS
v.
APPELLANT
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 05-CI-00081
LORI WYNN WALLS (NOW CONGER)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; SHAKE,1 SENIOR JUDGE.
NICKELL, JUDGE: William Nathan Walls appeals from an order entered by the
Caldwell Circuit Court on September 17, 2010, denying his motion to restore
visitation with his minor daughter. He contends visitation should not have been
denied absent proof that visitation with him would seriously endanger his child,
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Senior Judge Ann O'Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
and the court should have imposed a less restrictive alternative, such as supervised
visitation, rather than indefinitely terminating all visitation. Upon review of the
briefs, the record and the law, we affirm.
FACTS
William and Lori Wynn Walls (now Conger) were married on June
20, 1998. A daughter, KBW, was born to their union on April 17, 2003. William
and Lori separated on June 27, 2004, and on May 3, 2005, Lori petitioned the court
to dissolve the marriage. The following month they filed a child custody and
property settlement agreement under which they shared custody of their daughter,
with Lori being designated as the primary custodian. The agreement awarded
visitation to William and he agreed to pay child support in the amount of $300.00
each month.
On July 6, 2005, the Caldwell Circuit Court entered findings of fact,
conclusions of law, and decree of dissolution of marriage. The court found the
child custody and property settlement agreement was not unconscionable and
incorporated it into the decree of dissolution.
On August 3, 2006, William filed a motion for review of child
support. In August of 2008, Lori married her current husband, Craig Conger. On
December 5, 2008, William filed a motion for review of visitation alleging:
[b]een denied rights for the past year and half. I only see
her when its (sic) convenient for her mother and she says
that I am an unfit father. She goes on what people tell
her and has no right to judge me or keep my daughter and
(sic) from being together.
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Lori responded to the motion stating:
1. Petitioner states that the Respondent has had
reasonable and regularly scheduled opportunities to
visit with the minor child when the child is with his
mother, Wanda Wells.
2. Petitioner does not allow the Respondent to have
unsupervised visitation with the minor child, [KBW],
due to suspected drug use, recent arrests, and his
failure to care for her when she has been in his
physical custody in the past.
3. Petitioner believes that any visitation that the
Respondent has with [KBW] should continue to be
supervised by his mother and Petitioner is prepared to
have witnesses to testify to support her position.
On December 30, 2008, William filed a letter with the court stating he and Lori
had discussed the matter and he no longer wanted to pursue the motion for
visitation.
In 2009, William and Lori executed an agreed order providing that:
1. Petitioner, Lori Conger, shall be awarded the sole
care, custody and control of the minor child, namely,
[KBW], born April 17, 2003. Respondent waives any
and all visitation with the minor child, both present
and/or future.
2. In the event that Petitioner’s husband, in the future,
desires to adopt the minor child, the Respondent
agrees that he shall voluntarily terminate his parental
rights and agrees to execute any and all documents
necessary to effectuate the adoption.
3. Respondent currently owes child support arrearages to
Petitioner in the amount of $1,446.93. Respondent
agrees that this child support arrearage shall be paid,
in full, no later than June 30, 2009. Any future child
support obligation from Respondent to Petitioner is
hereby terminated, effective immediately.
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4. Any and all other orders of the Court not modified by
this order shall remain in full force and effect.
The agreed order was entered by the court on January 21, 2009. On July 9, 2009,
William signed a statement giving permission “for my daughter’s name to be
changed from [KBW] to [KBC].”
On June 23, 2010, William moved the court to restore regular
visitation with his daughter. The motion referenced the agreed order in which he
had waived his visitation rights to his daughter but alleged that he had enjoyed
regular visitation with her until May of 2010 when Lori ceased visitation and all
contact with him.
Following a hearing on September 3, 2010, the court entered an order
denying William’s motion to restore visitation. It is from this order that William
appeals.
ANALYSIS
We begin with William’s framing of the question on appeal as
“whether the trial court’s determination to deny all visitation with [William] was
error.” A critical fact omitted from this statement is William’s voluntary signing
of an agreed order waiving visitation with his daughter in exchange for freedom
from any future child support obligation, an order he never challenged on appeal
and never claimed was signed under duress. That agreement is enforceable by
either party and “courts will enforce the agreement, provided it is for the best
interest of the child.” Combs v. Brewer, 310 Ky. 261, 264, 220 S.W.2d 572, 573
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(Ky. 1949) (internal citations omitted). After reaching their agreement, William
and Lori submitted it to the trial court in the form of an agreed order which the
court signed and entered. Having failed to challenge the order, William must
accept responsibility for his actions.
Next, William cites no authority for his position that the trial court
erred in applying the best interests of the child standard rather than requiring Lori
to prove visitation with William would seriously endanger their daughter’s health
under KRS 403.320(3). Again, we emphasize that William and Lori shared
custody of their daughter when the decree of dissolution was entered in 2005. It
was not until 2009 that William voluntarily relinquished all rights to visitation in
return for freedom from any future child support obligation. William offered no
evidence that he was compelled to sign the agreed order. He candidly testified he
signed it so he would not have to pay child support and would not be sent to jail.
Thus, in the true sense of the word, the trial court did not terminate William’s
visitation with his child. William made that choice of his own accord and
enforcement of the agreed order is entirely appropriate.
Under Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000), cited by
both William and Lori in their briefs on appeal, we:
[w]ill only reverse a trial court’s determinations as to
visitation if they constitute a manifest abuse of discretion,
or were clearly erroneous in light of the facts and
circumstances of the case. Wilhelm v. Wilhelm, Ky., 504
S.W.2d 699, 700 (1973).
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An abuse of discretion occurs when the “trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire
and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). Furthermore, a
court's findings of fact are conclusive if supported by substantial evidence of a
probative value. Spurlin v. Spurlin, 456 S.W.2d 638 (Ky. 1970).
After reviewing the evidence developed during the hearing on the
motion to restore visitation, we conclude the trial court’s factual findings are
supported by substantial evidence. William’s contact with his daughter has been
sporadic at best. He called the child only one or two times during the five-year
period after the separation and divorce and his promises to the child were often
broken. In one striking example, the child returned home after seeing William and
immediately began collecting items for the playhouse they were going to build
together. When she returned home from the next visit with her grandparents she
was distraught and inconsolable because William was not there to begin
construction of the playhouse. In an attempt to placate the child, her stepfather
spent the next month building a treehouse for her. As the trial court found, “[i]t
would be in the best interests of the child for her to continue to have no visitation
with [William] under the circumstances.” Furthermore, the evidence developed
during the hearing fully supports the trial court’s finding that:
[c]onsidering [William’s] demeanor during the hearing,
his past conduct, and the two signed agreements, the
Court is not convinced that [William] is really interested
in maintaining a relationship with his daughter and is not
presently capable of supporting her.
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Finally, William argues that the trial court was required to consider a
less restrictive alternative to denying resumption of visitation. However, William
has offered no authority for this theory.
For the foregoing reasons, the order of the Caldwell Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Natalie M. White
Eddyville, Kentucky
Jill L. Giordano
Princeton, Kentucky
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