EDWARDS (WILLIAM LISLE) VS. EDWARDS (LENA DAGHESTANI)
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RENDERED: JULY 22, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-002027-ME
WILLIAM LISLE EDWARDS
v.
APPELLANT
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 04-CI-01283
LENA DAGHESTANI EDWARDS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KELLER AND VANMETER, JUDGES.
DIXON, JUDGE: Appellant, William “Bill” Edwards, appeals from an order of
the Fayette Family Court modifying a prior joint custody agreement and awarding
sole custody of the parties’ minor son to Appellee, Lena Edwards.
Bill and Lena Edwards were divorced by a decree of dissolution entered in
the Fayette Family Court on August 25, 2004. Pursuant to the decree, the parties
were awarded joint custody of their son, Taylor, born February 15, 2002, with
equal timesharing between the parties. No activity occurred in the family court
concerning the parties until October 12, 2009, when Lena filed a motion to
establish specific parenting time and medical decision-making authority, as well as
to determine various financial issues. An agreed order was subsequently entered in
November 2009, resolving the issues related to parental time-sharing and medical
decisions. The financial issues, which were reserved for a hearing, are not relative
to this appeal and will not be discussed herein.
In March 2010, Lena filed a verified motion to modify custody. Therein,
Lena claimed that the parties’ ability to communicate had substantially deteriorated
since the entry of the November 2009 agreed order, and that Bill was not
adequately participating in the care and decision-making with respect to Taylor.
On April 21, 2010, the family court entered an order finding that Lena had met her
burden under KRS 403.340 for an evidentiary hearing on the motion. The family
court thereafter appointed David Feinberg, Ph.D., to perform a custody evaluation.
A hearing was conducted on August 10, 2010, wherein both parties, as well
as Dr. Feinberg by deposition, testified. At the conclusion of the hearing, the
family court ruled that it was in Taylor’s best interest that custody be modified to
grant Lena sole custody. Written findings of fact and conclusions of law were
entered accordingly. Bill’s motion to alter, amend or vacate was subsequently
denied and this appeal ensued.
Bill argues to this Court that the family court erred in finding that there was
no agreement between the parties as to joint custody or as to the use of a parenting
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coordinator. Further, Bill contends that it was an abuse of discretion to modify
custody as it was not in Taylor’s best interest and there was no change of
circumstances justifying the modification.
As a general rule, a family court has broad discretion when determining
matters pertaining to custody of children. Futrell v. Futrell, 346 S.W.2d 39 (Ky.
1961). See also Squires v. Squires, 854 S.W.2d 765, 769 (Ky. 1993); Krug v.
Krug, 647 S.W.2d 790, 793 (Ky. 1983). On appellate review of a child custody
determination, a family court's findings of fact shall not be set aside unless the
factual findings are clearly erroneous. Allen v. Devine, 178 S.W.3d 517, 524 (Ky.
App. 2005); Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974). The family court's
findings of fact are not clearly erroneous if supported by substantial evidence of
probative value. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964).
Substantial evidence is evidence that has sufficient probative value to induce
conviction in the mind of a reasonable person when taken alone or in light of all
the evidence. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005). Finally,
“[an appellate court] must bear in mind that in reviewing the decision of a [family]
court the test is not whether [it] would have decided it differently, but whether the
findings of the family court were clearly erroneous or that [it] abused [its]
discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). Mere doubts
regarding the correctness of the family court's decision are not sufficient grounds
for reversal. Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967).
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The family court correctly determined that custody modification in this case
is governed by KRS 403.340(3), which provides in relevant part:
[T]he court shall not modify a prior custody decree
unless after hearing it finds, upon the basis of facts that
have arisen since the prior decree or that were unknown
to the court at the time of entry of the prior decree, that a
change has occurred in the circumstances of the child or
his custodian, and that the modification is necessary to
serve the best interests of the child. When determining if
a change has occurred and whether a modification of
custody is in the best interests of the child, the court shall
consider the following:
(a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family
of the petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine
the best interests of the child;
(d) Whether the child's present environment endangers
seriously his physical, mental, moral, or emotional
health;
(e) Whether the harm likely to be caused by a change of
environment is outweighed by its advantages to him; and
(f) Whether the custodian has placed the child with a de
facto custodian.
...
Further, pursuant to KRS 403.270(2), the family court “shall determine custody in
accordance with the best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian.” Relevant factors include:
(a) The wishes of the child's parent or parents, and any de
facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
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(c) The interaction and interrelationship of the child with
his parent or parents, his siblings, and any other person
who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and
community;
(e) The mental and physical health of all individuals
involved;
...
Bill claims that contrary to the family court’s findings, he and Lena
agreed to follow Dr. Feinberg’s recommendation to maintain joint custody and
employ the services of a parenting coordinator. During the hearing, Dr. Feinberg
testified that he believed it was in Taylor’s best interest that Bill and Lena retain
joint custody since Taylor had a significant attachment and relationship with both
of them. Dr. Feinberg recommended that the parties employ the services of a
parenting coordinator, who would assist with the communication and scheduling
issues.
Indeed Lena testified during the hearing that she would accept Dr.
Feinberg’s recommendations in whole, including keeping joint custody, if that was
what he believed was in Taylor’s best interest. However, there clearly was no
“agreement” between the parties as Bill argues, because if such was the case, the
hearing would necessarily not have been required.
Bill next contends that the family court failed to give any
consideration to the parties’ testimony or Dr. Feinberg’s recommendation in
making the best interests determination. Further, Bill complains that the family
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court erred by only relying on certain excerpts of Dr. Feinberg’s testimony in
concluding that sole custody was warranted.
In discussing the requirements of joint custody, the family court cited
Pennington v. Marcum, 266 S.W.3d 759, 764 (Ky. 2008), wherein our Supreme
Court noted,
Joint custody as a legal concept has several defining
characteristics. Both parents have responsibility for and
authority over their children at all times. Equal time
residing with each parent is not required, but a flexible
division of physical custody of the children is necessary.
A significant and unique aspect of full joint custody is
that both parents possess the rights, privileges, and
responsibilities associated with parenting and are
expected to consult and participate equally in the child's
upbringing.
Relying on the above language, the family court herein concluded that joint
custody was no longer a viable option in this case:
These parents do not communicate well. Early on after
the divorce they had better communication. However,
since the child has become older his medical issues have
become more known and explained. Since he has started
school and extracurricular activities, communication is
either non-existent or extremely dysfunctional. Father
admits he does not know if Mother and Father will ever
be able to get back to that level of communication of
years ago. Dr. Feinberg recommends and the parties both
agree that there can be no flexibility in the timesharing
arrangement and it must be strictly set. Mother is the
parent primarily responsible for making appointments
and attending appointments for the child’s medical needs,
psychological needs and tutoring needs.
The family court concluded that because Taylor had been “caught in the crossfire”
of the parties inability to communicate and work with each other, it was in his best
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interest to have “a primary home so that he is not caught in the middle.” Further,
the family court rejected the notion of a parenting coordinator, stating that there
was no precedent in Kentucky for authorizing such.1 Regardless, the family court
noted that a parenting coordinator costs both parents money that could be better
spent on the child, and that parents must be able to co-parent themselves to have
joint custody.
A court may modify joint custody where the parties are unable to
cooperate so long as the lack of cooperation by one or both parties rises to the
statutory level required for modification of custody under KRS 403.340. See
Scheer v. Zeigler, 21 S.W.3d 807, 814 (Ky. App. 2000). The family court herein
evaluated the testimony of all witnesses and concluded that a change in
circumstances had occurred such that it was in Taylor’s best interest that Lena be
awarded sole custody. In making that determination, the family court was not
required to accept all or any of the recommendations of Dr. Feinberg. While this
Court may have decided the matter differently, we simply cannot conclude that the
family court’s decision was clearly erroneous or not supported by substantial
evidence. The simple truth is that there was evidence to support both parties’
positions. It was the duty and function of the family court to evaluate the evidence
1
Actually, in the unpublished decision in Telek v. Bucher, 2008-CA-002149 (April 2, 2010), a
panel of this Court noted that pursuant to KRS 403.330(2), a family court may order parents to
work with a parenting coordinator. “A parenting coordinator is assigned to help the parties work
together . . . . In instances where the parties are unable to agree, the parenting coordinator will
make a decision that is in compliance with the family court’s orders. If either party should
disagree with the parenting coordinator’s determination, they may turn to the family court for a
final determination.” Slip op. p. 5. Further, Rule 6.1 of Kentucky’s new Family Court Rules of
Procedure and Practice (FCRPP), effective January 1, 2011, appears sufficiently broad so as to
grant the Family Court the authority to order a parenting coordinator.
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and decide what was in Taylor’s best interest given the totality of the
circumstances. This court cannot find that the family court erred in its
determination.
The Fayette Family Court’s findings of fact and conclusions of law are
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa J. Oeltgen
Ann D’Ambruoso
Lexington, Kentucky
Anita M. Britton
Lexington, Kentucky
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