EDLIN (TIMOTHY G.) VS. EDLIN (TAMMY R.)
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RENDERED: JUNE 24, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001935-ME
TIMOTHY G. EDLIN
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 09-CI-00247
TAMMY R. EDLIN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON, JUDGE; LAMBERT,1
SENIOR JUDGE.
CLAYTON, JUDGE: Timothy G. Edlin appeals from a judgment of the Marion
Circuit Court, which made Tammy R. Edlin the primary residential custodian of
the parties’ minor children. After careful review of the record, we affirm.
1
Senior Judge Joseph E. Lambert 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.
FACTUAL AND PROCEDURAL BACKGROUND
Timothy and Tammy were married on October 10, 1997, in Marion
County Kentucky. The marriage was dissolved by a decree of dissolution on April
20, 2010. During the marriage, they had three daughters, who at the time of the
dissolution were eleven, ten, and four. The parties entered into a property
settlement agreement, which resolved all issues except for child custody and child
support.
The trial court held a hearing on June 1, 2010. Following the hearing
and after consideration of the depositions, the trial court entered its decree on
October 1, 2010, adopting the August 13, 2009, temporary custody order as
modified by the November 7, 2009, order. The trial court granted the parties joint
custody with Tammy as the primary residential custodian. In the order, the trial
court set Timothy’s parenting schedule pursuant to the Standard Visitation
Schedule for the Eleventh Judicial Circuit with the modification in the later order.
In essence, Timothy’s parenting time with the children was every other weekend
from Friday at 6:00 p.m. until Sunday at 6:00 p.m., as well as every Thursday
evening from 5:00 p.m. until 7:00 p.m. In addition, the modified custody order
stated that Timothy takes them to church school on Wednesday evening and is
responsible for the children’s transportation to sporting events.
Timothy appeals from the June 1, 2010, decree. He argues that the
trial court erred in its determination of the best interests of the children and
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maintains that the best interests of the children would best be served by dividing
the parenting time equally between the parents.
STANDARD OF REVIEW
This Court will only reverse a trial court’s determination as to a
designation of primary residential parent if the decision constitutes a manifest
abuse of discretion, or was clearly erroneous in light of the facts and circumstances
of the case. See e.g., Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000) (citing
Wilhelm v. Wilhelm, 504 S.W.2d 699, 700 (Ky.1973)). “A finding of fact is clearly
erroneous if it is not supported by substantial evidence, which is evidence
sufficient to induce conviction in the mind of a reasonable person.” B.C. v. B.T.,
182 S.W.3d 213 (Ky. App. 2005). In deciding whether to set aside the trial court’s
findings of fact “due regard [shall be] given to the opportunity of the trial judge to
view the credibility of the witnesses.” Reichle v. Reichle, 719 S.W.2d 442, 444
(Ky. 1986) (citing Kentucky Rule of Civil Procedure (CR) 52.01). Moreover, a
trial court’s conclusion of law is reviewed under a de novo standard of review.
McClendon v. Hodges, 272 S.W.3d 188, 190 (Ky. 2008).
ANALYSIS
The issue for appellate review is whether the trial court abused its
discretion in its decision regarding the parenting schedule. The nature of the
custodial arrangement however is not being challenged since Timothy is not
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contesting the joint custody but rather the time-sharing element of the decree. As
stated by the Kentucky Supreme Court in Pennington v. Marcum, 266 S.W.3d 759
(Ky. 2008),
modification of custody means more than who has
physical possession of the child. Custody is either sole or
joint . . . 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: decisionmaking 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.
....
While there is no statute that specifically addresses
modification of timesharing in a joint custody setting, it
is reasonable to infer that modifying it does not alter the
nature of joint custody. Also, since the nature of the
custody does not change, the trial court is not bound by
the statutory requirements that must be met for a change
of custody [KRS 403.340], but can modify timesharing
based on the best interests of the child as is done in
modifying visitation.
Id. at 767-68. Thus, pursuant to Pennington, we review the issue as it relates to
modification of the parties’ visitation/time-sharing arrangement. Consequently,
the best interest standard of KRS 403.320 applies. The sole issue for the Court is
whether the trial court erred in its determination of the best interests of the children
when it designated Tammy as the primary residential custodian.
Timothy posits that the children’s best interest is better served by
dividing the time equally between the parents rather than designating Tammy as
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the primary residential custodian. On appeal, Timothy presents information about
the advantages of splitting the parenting time equally between the parents. Yet,
Timothy, for the most part, does not refute or dispute any of the evidence, which
was considered by the trial court in its determination that the children’s best
interest was served by naming Tammy as the primary residential custodian.
One major contention that Timothy makes is that Tammy’s smoking
around the children is not in their best interest. He cites to Polley v. Allen, 132
S.W.3d 223 (Ky. App. 2004), in support of his contention that it is in the child’s
best interest to live with a parent who does not smoke. But we find that case
distinguishable from the case at bar. In Polley, it was established that the father
repeatedly exposed the children to cigarette smoke when in the presence of the
children. It has not, in the present case, been established that Tammy exposes the
children in a similar manner to second-hand smoke. At best, conflicting evidence
exists on that issue. Moreover, apparently Timothy’s concern is only related to a
half-time split of the children’s time. He does not suggest that the children should
not spend any time with their mother.
Where conflicting evidence exists, it is the trial court’s task to
determine the credibility of the witnesses. And appellate courts are to give due
regard to the trial court’s determination. Reichle, 719 S.W.2d at 444. Thus, absent
any valid criticism concerning the trial court’s findings, it is our decision that they
are not erroneous.
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Our next action is to ascertain whether the trial court’s decision was
an abuse of discretion. A trial court has not abused its discretion unless its
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004). Statutory direction
as to the best interests of the child is found in KRS 403.270(2).
After an examination of the best interest factors, the trial court
awarded the parties’ joint custody and made Tammy the primary residential
custodian. In making this decision, the trial court, in its findings, emphasized
Tammy’s interaction and interrelationship with her children plus her historical role
as the primary caretaker. Besides that, the trial court recognized the substantial
time that Tammy spent with the children particularly while working full-time. The
trial court also noted that when Timothy spent less time in the home, Tammy
increased her time at home. Furthermore, the children now live with Tammy in the
same home in which they have always lived. Hence, not only did the trial court
have substantial evidence exist to support its findings, Timmy never established
that the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Consequently, we have no rationale to show that the trial court abused
its discretion.
CONCLUSION
In light of the foregoing, we cannot conclude that any of the findings
of fact made by the trial court were clearly erroneous or that the court abused its
discretion in naming Tammy as the primary residential custodian. Accordingly,
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we affirm the Marion Circuit Court’s Findings of Fact, Conclusions of Law, and
Decree entered June 1, 2010.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elmer J. George
Lebanon, Kentucky
James L. Avritt, Jr.
Lebanon, Kentucky
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