FORTENBERRY (ELIZABETH BLANCHE) VS. REED (CORY MICHAEL)
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RENDERED: JULY 29, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2011-CA-000083-ME
ELIZABETH BLANCHE FORTENBERRY
v.
APPELLANT
APPEAL FROM CALLOWAY FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 07-CI-00557
CORY MICHAEL READ
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND VANMETER, JUDGES.
LAMBERT, JUDGE: Elizabeth Blanche Fortenberry has appealed from the
Calloway Family Court’s October 1, 2010, order modifying timesharing and
designating her former husband, Cory Michael Read,1 as the primary residential
parent of their minor daughter. Having carefully considered the record and the
parties’ arguments in their briefs, we affirm the family court’s judgment.
1
While the body of the notice of appeal lists Reed as the appellee’s last name, the record
establishes that the correct spelling is Read, which we shall use in this opinion.
Elizabeth and Cory were married in Murray, Calloway County,
Kentucky on October 16, 2004. One child, a daughter named Morgan Read (the
child), was born of the marriage on March 26, 2005. The parties separated on
March 31, 2007, following Elizabeth’s return from active duty in Iraq, and Cory
filed a petition for dissolution on December 26, 2007. Cory requested that he and
Elizabeth be awarded joint custody of the child, that he be named the primary
residential parent, and that Elizabeth be ordered to pay child support. He also
requested an equitable division of marital property and debt, as well as the
restoration of non-marital property. At the time he filed the petition, Cory was a
full-time student at Murray State University and worked part-time for the
university as a stockroom employee. Elizabeth was unemployed. In January, Cory
filed with the court a letter he received from Elizabeth indicating that she disagreed
with the custody requested and disputed the date of separation, claiming that they
separated in June 2006 before she was deployed overseas. She also indicated that
she intended to hire an attorney.
In September 2008, the parties reached an agreement as set forth in
the Marital Settlement Agreement. The necessary proof to support the petition for
dissolution was filed with the court via Cory’s deposition upon written questions.
In the deposition, Cory indicated that Elizabeth had moved to Irvington, Kentucky
and was employed by the National Guard earning $1,300.00 per month. The
family court adopted the parties’ agreement in its findings of fact, conclusions of
law, and decree of dissolution entered September 24, 2008. Pursuant to the terms
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of the agreement, the parties were awarded joint, shared custody of the child, and
she was to spend approximately six months per year with each parent pursuant to a
schedule set forth in the agreement. They also agreed that neither party would be
required to pay child support but that they would split the child’s school and
daycare expenses. The agreement provided that the custody and visitation
schedule was to be reviewed once the child was ready to enter kindergarten.
On August 11, 2010, Elizabeth filed a motion to modify the
timesharing schedule, set child support, and for reimbursement of expenses. By
this time, the child was ready to enter kindergarten, so that by the terms of the
agreement the matter was ripe for review. In her motion, Elizabeth indicated that
Cory had relocated to South Carolina. Furthermore, she stated that the parties had
not abided by the terms of their agreement, as the child had spent the majority of
her time with Elizabeth. Because both she and Cory worked and attended school,
and they resided a great distance from one another, Elizabeth requested that she be
named the child’s primary residential parent and that Cory be permitted visitation
in accordance with the guidelines for long distance situations. She stated that she
was the fit and proper person to have primary care of the child. If granted,
Elizabeth requested child support. Finally, Elizabeth requested reimbursement for
the child’s school and daycare expenses pursuant to their agreement. Elizabeth
attached an affidavit in support of the motion.
In response, Cory first moved to continue the hearing on the motion.
He stated that he was enrolled in a doctorate program at the University of South
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Carolina in Columbia, South Carolina. Cory had enrolled the child in school in
Columbia, but Elizabeth had refused to return the child to him at the end of her
summer visitation period when he went to pick her up in Kentucky. Pursuant to
the terms of their agreement, Cory was supposed to get the child back the day
before school started, which was scheduled to begin on August 18, 2010. Cory
also filed a motion for a rule related to Elizabeth’s refusal to give the child back to
him, but that motion was later withdrawn when Elizabeth turned the child over to
Cory during the evening of August 18, 2010. As grounds for his motion to
continue the hearing, Cory indicated that he had served interrogatories and requests
for production of documents on Elizabeth seeking information regarding her
history of mental problems, medical background, and her having placed other
children up for adoption. The court continued the hearing until September 29,
2010.
The day of the hearing, Cory filed a response to Elizabeth’s motion as
well as a counter-motion requesting to be named the primary residential parent. In
his filing, Cory began with the statement that Elizabeth had been more tuned in to
her own needs than the child’s needs over the last three years. She had lived apart
from the child for extended periods, although Elizabeth was primarily responsible
for raising and supporting the child while he was completing classes at Murray
State and during his first semester at USC. Cory stated that the child had lived
primarily with him from June 2006 to October 2007 while Elizabeth was on active
duty in Iraq and Kuwait as well as upon her return when she lived with other
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people and sought treatment for her mental health problems. The child had also
been in his primary care since January 2010. For his counter-motion, Cory stated
that the child was established in his household and had been in his primary custody
for an overwhelming period of time, other than while he was in school. Therefore,
Cory requested that he be named the primary residential parent.
The family court held an evidentiary hearing on September 29, 2010,
where both parties were able to testify and call other witnesses.
Elizabeth testified that she was on active duty in Iraq from September
2006 until late February 2007, when she came home on leave and stayed. She and
Cory ended their relationship upon her return, and she moved to the Ft. Knox area
where she would be more likely to find a job so that she could take care of the
child. At the time of the hearing, she lived in a three-bedroom house in
Elizabethtown with her fiancé, Jason Kennedy, where the child had her own
bedroom. Because Jason had a full-time job, Elizabeth was able to take classes
and be home when the child was out of school. Elizabeth had enrolled the child in
kindergarten that fall at St. James, where she had attended preschool.
Elizabeth testified that out of the previous twenty-six months, she had
been primarily caring for the child for twenty months. The child had been in
Elizabeth’s care from June 2008, prior to the settlement agreement, and she
continued to live with her until January 2010. During this time, the child did not
spend much time with Cory. In November 2009, Elizabeth told Cory that she
wanted to alter the custody arrangement, which prompted Cory to take the child
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back with him to South Carolina. While she was with Cory, Elizabeth called her
almost every night and sent letters. She also arranged to see the child one time per
month. Elizabeth testified that Cory lived in a one-bedroom apartment and that
while with Cory, the child slept on a twin mattress in his bedroom. The child came
back to live with Elizabeth for summer break in June 2010, and she returned to
Cory’s home on August 18, 2010.
Elizabeth testified to her belief that the child was better off living with
her. She had been in the area for a long time and planned to stay there. The child
was enrolled in a good school, had a good home life, and Elizabeth was able to
spend a lot of time with her. Due to Elizabeth’s class schedule, the child would not
have to spend time in daycare. Elizabeth also testified that she had a good support
system in Elizabethtown, including twenty to twenty-five people in a life group at
the church she attended with Jason. The child played softball on a team coached
by one of the life group members. Elizabeth testified that she and the child had a
good relationship and that they would go on walks, go to the park, and go to
various museums.
Elizabeth also testified about personal issues she had to work through
upon her return from Iraq in late February 2007. She said that she and Cory had
broken up before she left and that she had taken a leave from her military service
so that she could deal with those problems. She admitted to being depressed when
she returned and had to be hospitalized one night after she drank too much alcohol.
She also sought treatment for her depression while she was in a facility. Elizabeth
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went on to testify that she had not had any issues since that time and was
continuing to get better. She also testified that she had given birth to two children
after returning from active duty, both of whom she placed up for adoption. The
first was born in 2007 and was the result of a relationship she had in Iraq that had
ended, and the second, born in May 2009, was from a nonconsensual encounter.
Elizabeth decided that it was in both children’s best interest that they be placed for
adoption.
On cross-examination, Elizabeth testified in more detail about her
return from Iraq, and she admitted that upon her return she spent one day with the
child before leaving to visit friends in another state. She admitted that she was
hospitalized for an overdose of vodka and Tylenol PM and sought treatment for
depression at Four Rivers in Mayfield and later at Lincoln Trail. Following her
two week stay at Lincoln Trail, she went to Camp Abernathy in Indiana and was
released in early June. Elizabeth then went to the Ft. Knox area. She indicated
that her depression arose as a result of her marriage problems, but stated that she
had encountered no real problems since the marriage ended and that presently she
had no physical or mental problems. Finally, Elizabeth testified that she earned
$1,000.00 per month from the military.
Cory testified that he was in graduate school at USC in Columbia,
South Carolina, where he was working on his doctorate degree in organic
chemistry. He received a stipend of $21,000.00 to $24,000.00 per year from the
university. Cory grew up in the Murray area where his family lives, and he hoped
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to return as a professor at Murray State once he completed his doctorate degree.
He testified that he was the primary parent for the child when Elizabeth left for
active duty in 2006. Cory also testified about Elizabeth’s history of mental health
issues. Regarding the child, Cory stated that she had a lot of friends in the area and
was always happy to go to school. He also described the activities they did
together, including visiting the children’s museum.
On cross-examination, Cory admitted that Elizabeth resumed her
visits with the child in 2007 and that Elizabeth’s mental issues had arisen prior to
the signing of their settlement agreement. He also admitted that the child slept on
a twin mattress in his bedroom. Regarding the custody arrangement set forth in the
settlement agreement, Cory stated that they never really followed the six-month
time split due to his graduate school studies. Elizabeth had been the child’s
primary caregiver and financial supporter from the time they signed the settlement
agreement through January 2010. Cory had the child for the spring semester, and
then she returned to Elizabeth for the next three months leading up to the current
litigation.
Barbara Baumgardner testified by telephone. Ms. Baumgardner is a
teacher at St. Peter’s, a Catholic school in Columbia, South Carolina, where Cory
had enrolled the child in kindergarten. Ms. Baumgardner had previously had the
child in her class. She testified that the child was energetic, loved to play, was not
shy, and was above average. She met Cory when he volunteered for a field trip the
previous school year. She stated that Cory compared well with the other parents
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and that the child was always prepared and ready for school with her lunchbox and
backpack.
Michael Chance, Cory’s co-worker from USC, testified as to Cory’s
interaction with the child. They lived in the same apartment complex in Columbia
and visited after work. Mr. Chance stated that Cory treated the child very well and
was a loving, providing parent. He also mentioned that Cory was involved with
reading to the child.
Finally, Elizabeth’s fiancé, Jason Kennedy, testified. He works fulltime for the Kentucky National Guard, and he and Elizabeth live in a house he
purchased in Elizabethtown. He and Elizabeth met in early 2008 at Ft. Knox.
Jason considers the child to be a part of his life, and he spent time reading books to
her and taking her to school while she lived with them. He also testified about his
church’s Oasis Life Group and stated that they would take the child to functions
the life group held where she would interact and play with other children her age.
On October 1, 2010, the family court entered its findings of fact,
conclusions of law and judgment. The court first determined that due to the
distance between the parties’ residences and the child having reached school age, it
was appropriate to modify the current timesharing arrangement in order to serve
the child’s best interest. While it found that either parent could be appropriately
designated as the residential parent, the family court concluded that designating
Cory as the residential parent was in her best interest. The family court stated that
Cory “has historically been more stable emotionally and is believed to be focused
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on completing his plan to build a better and more secure life for both [the child]
and himself.” The court also stated that the evidence supports the conclusion that
Cory makes the child “his first priority while she is in his care.” Based upon its
findings and conclusions, the court ordered that the parties were to retain joint
custody, designated Cory as the child’s residential parent, and designated Elizabeth
as the non-residential parent. The court also awarded Elizabeth visitation in
accordance with the standard schedule for long distances. Finally, the court
ordered Elizabeth to pay Cory $193.05 per month in child support effective
October 1, 2010.
Elizabeth filed a motion for a new trial, to alter, amend or vacate the
judgment, or to amend the findings of fact and conclusions of law. She requested
that she be named the primary residential parent and that the family court correct
errors in the ruling. In an order entered December 9, 2010, the family court
amended the original order to correct some spelling errors and to omit an incorrect
date, but otherwise denied Elizabeth’s motion. This appeal now follows.
In her brief, Elizabeth contends that several of the family court’s
findings of fact were not supported by substantial evidence and that its conclusions
of law were arbitrary as a result. On the other hand, Cory argues that the family
court’s findings were not clearly erroneous and that its decision should not be
disturbed.
The standard of review in the area of child custody and visitation is
well settled in this Commonwealth. The party seeking modification of custody or
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visitation/timesharing has the burden of filing a motion before the court, and the
decision to modify is within “the sound discretion of the trial court.” Pennington
v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). KRS 403.320(3) provides for the
modification of visitation and is applicable in cases where a party seeks
modification of timesharing, as in this case. The statute provides that a “court may
modify an order granting or denying visitation rights whenever modification would
serve the best interests of the child[.]” See also Pennington, 266 S.W.3d at 769
(“Since ‘serious endangerment’ or ‘best interests’ is not defined, it is left to the
sound discretion of the trial court whether the party opposing relocation has met
his burden on either a modification of custody or visitation/timesharing.”).
Regarding the best interests standard, “any factual findings are reviewed under the
clearly erroneous standard; any decisions based upon said facts are reviewed under
an abuse of discretion standard.” Young v. Holmes, 295 S.W.3d 144, 146 (Ky.
App. 2009).
Elizabeth’s first argument addresses whether the family court’s findings of
fact are clearly erroneous. In conjunction with this argument, Elizabeth also
contends that the family court’s factual findings were incomplete and should have
been amended to conform to the undisputed facts presented at the hearing.
An appellate court may set aside a lower court’s findings made pursuant to
Kentucky Rules of Civil Procedure (CR) 52.01 “only if those findings are clearly
erroneous.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). To determine
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whether findings of fact are clearly erroneous, we must decide whether the 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.
Id. at 354 (footnotes omitted).
We have carefully reviewed the evidentiary hearing held in this case
along with the documentary record. As set forth below, while we agree that some
of the factual findings were perhaps lacking in some respects, we disagree with
Elizabeth’s argument that several of the family court’s findings were not supported
by substantial evidence of record for purposes of its ultimate conclusion. In other
words, these were not material issues of fact pertinent to the family court’s
ultimate legal conclusion to name Cory as the residential parent.
First, Elizabeth contends that the family court incorrectly found in its
sixth finding that the child had spent approximately 60% of her life with both
parents and the other 40% solely with Cory prior to September 24, 2008, the date
on which the family court entered the initial decree. While the dates are rather
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imprecise, Elizabeth’s calculation of a 71%/29% split is more accurate. Her
calculation took into account her resumption of visits with the child in mid-2007
following her return from active duty in Iraq and subsequent treatment. However,
this finding had little, if any, bearing on the family court’s decision as it was not
mentioned again. Therefore, this finding is not clearly erroneous.
Second, Elizabeth contends that the family court’s ninth finding failed
to address the undisputed facts concerning the reasons for her decision to leave her
employment and the length of time she had known her fiancé. She also argues that
the family court erroneously downplayed her support system, especially in light of
its findings related to Cory’s support system. While we do agree with Elizabeth
that the finding stating that she had known her fiancé for one year was incorrect
based upon Jason’s testimony that he met Elizabeth in early 2008, as before, this
finding does not appear to have any bearing on the ultimate decision. Therefore,
we decline to disturb the family court’s findings in this paragraph, noting that it is
within the province of the court, as the fact-finder, to judge and weigh the evidence
presented by the parties.
Third, Elizabeth disputes the family court’s additional finding in its
conclusions of law regarding each parent’s visits or calls during the time the other
parent was caring for the child. The family court noted that “both parties testified
to a lack of visitation or even calls to check on their child’s general well being by
the other parent while [the child] was in their individual care[.]” We disagree with
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Elizabeth on this issue because the record does reflect testimony to this effect, and,
again, it is within the province of the fact-finder to weigh the testimony.
In conjunction with this finding, the court concluded that Cory made
the child “his first priority while she is in his care.” Elizabeth argues that there was
no evidence presented at the hearing to support the finding that Cory makes the
child any more of a priority than Elizabeth does, whether the child was in his care
or not. However, the family court did not state or conclude that Elizabeth did not
also provide the child with the same priority while in her care; rather, the court
clearly stated that either parent could appropriately be named as the residential
parent. Accordingly, we do not find this statement to be clearly erroneous.
The two findings upon which the family court appeared to base its
ruling, Cory’s emotional stability and his focus on completing his education to
provide for his and the child’s future security, are not specifically argued as being
unsupported by substantial evidence. Therefore, we hold that the family court’s
findings of fact were not clearly erroneous.
Because we have determined that there was a sufficient evidentiary
basis for the pertinent factual findings, we shall next consider whether the family
court abused its discretion in modifying the timesharing arrangement and in
designating Cory as the residential parent. There is no dispute that the family court
did not abuse its discretion in deciding to modify timesharing; the sole issue raised
below and on appeal concerns the family court’s decision to designate Cory as the
residential parent.
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Elizabeth contends that the family court abused its discretion in failing
to name her as the residential parent, but instead finding it in the best interest of the
child to name Cory as the residential parent. She argues that the family court
arbitrarily relied upon her history of emotional problems, which she stated had
been resolved by the time she and Cory entered into their original agreement in
2008. Elizabeth also argues that the family court improperly relied upon Cory’s
speculative, future plans, rather than relying upon changes she had already brought
about in her own life. These changes included the child’s living arrangements with
her and Elizabeth’s decision to continue her education, which permitted her to be
at home when the child was out of school. She also points to Cory’s voluntary
decision to leave the child in her care while he was pursuing his degree after they
had entered into the agreement. In his brief, Cory argued that the family court
properly considered all of the factors and did not abuse its discretion in the
designation of the residential parent.
Based upon the evidence of record, we cannot conclude that the
family court abused its discretion in naming Cory as the residential parent.
Clearly, the family court had a difficult decision to make, and by its own statement,
either parent could appropriately have been designated as the residential parent.
However, due to the distances between their residences and the fact that the child
was ready to enter kindergarten, the family court had to name one. While it
certainly would have been reasonable for another court to rule in a different
manner for the reasons Elizabeth argued, the family court had to consider
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Elizabeth’s history of mental and emotional problems as well as her ability to
provide for the child on a long term basis in light of Cory’s career plan. Therefore,
we cannot hold that the family court abused its considerable discretion in deciding
that the child’s best interests would be served by naming Cory as the residential
parent.
For the foregoing reasons, the judgment of the Calloway Family Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
K. Bryan Ernstberger
Murray, Kentucky
Ricky A. Lamkin
Stephanie Perlow
Murray, Kentucky
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