CRYSTAL FAYE GHOLSON v. BRUCE JOSEPH BRAWNER
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RENDERED:
December 27, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
96-CA-0660-MR
CRYSTAL FAYE GHOLSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LEON M. EICHENHOLZ, SPECIAL JUDGE
CIVIL ACTION NO. 95-FC-004212
BRUCE JOSEPH BRAWNER
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
DYCHE, GUIDUGLI and SCHRODER, Judges.
GUIDUGLI, JUDGE.
This is an appeal from a judgment of the
Jefferson Circuit Court awarding custody to the appellee/father,
Bruce Joseph Brawner (Brawner) of a child born out of wedlock.
The child has resided with his mother, Crystal Faye Gholson
(Gholson) since birth, a period of over five years, prior to this
action for custody being commenced by the father.
Appellant
argues that the trial court erred by awarding custody to the
child's father, by not utilizing KRS 403.340(2) and (3) in that
this case was actually a modification of a prior custody
agreement and by not considering awarding joint custody under KRS
404.270(4).
Having reviewed this matter thoroughly, and having
found that the court's judgment is not clearly erroneous, we
affirm.
The trial court made specific findings of fact in which
it set forth, in detail, the testimony presented at the hearing
and the history of the parties as it relates to this case.
However, some basic facts must be delineated so that the issues
can be defined.
Aaron J. Brawner-Gholson was born on June 1, 1990, to
the parties hereto.
never married.
He was born out of wedlock and the partes
Paternity was established and appellee has
regularly paid court ordered child support and faithfully
maintained weekly visitation with the child.
testified that the other was a good parent.
Both parties
There was no
testimony that the child suffered from any physical, mental,
moral or emotional harm.
The primary emphasis of the testimony
before the court was that appellee was employed earning
approximately $50,000 per year, lived in a house he purchased in
Jeffersontown with his new family and was able to provide a
better standard of care and environment for Aaron than appellant.
Appellant is an unemployed single mother of four children, living
in an apartment in an area of downtown Louisville that the trial
judge characterized as being a "difficult neighborhood in which
to live from a standpoint of crime and safety."
The court also heard from a representative from the
Louisville Police Department as to the number and nature of
police runs to appellant's neighborhood and from Richard K.
Johnson, Ph.D., a licensed clinical psychologist who performed a
court ordered custodial evaluation on the parties and child.
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The trial court set forth specific findings of fact as
to the evidence it considered in awarding sole custody to the
father in its order entered February 8, 1996.
It also correctly
set forth the standard it utilized in making its determination to
be KRS 403.270.
By doing so, the court found that this was an
original custody action and not, as appellant argues, a
modification of a previous custody determination which would have
required the court to follow KRS 403.340.
Although paternity of
the child was established by previous court action in 1990, the
district court, who entered the paternity/child support order,
did not have statutory authority to address the custody issue.
Therefore, appellant's argument, whether properly preserved or
not, simply does not have any legal basis or validity.
Since KRS 403.340, the modification of custody statute,
is not applicable, appellant argues that the trial court erred
when it based its custody determination primarily on economic
factors.
A review of the record, as well as the court order,
finds this not to be the case.
In addition to the financial
circumstances of the parties, the court specifically considered
the child's educational opportunities, the parties' housing
arrangements, the crime rate and related problems of appellant's
neighborhood, her unemployment, the professional opinion of the
court appointed psychologist, and the attitude and demeanor of
the parties.
Having heard the testimony and giving equal
consideration to each parent, the court found that it would be in
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the best interest of the child to award sole custody to the
father.
Although poverty alone should never be the sole reason
for denying custody, the court must, in part, base its decision
on the existing living condition of the parties.
Ky. App., 577 S.W.2d 43 (1979).
Jones v. Jones,
"Though every effort must be
made to exclude or offset the element of economic disadvantage,
it cannot be completely ignored if the ultimate objective is the
welfare of the child.
Regrettably it is a fact of life and there
is no way to deny its relevance."
S.W.2d 721, 723 (1977).
Calhoun v. Calhoun, Ky., 559
On appellate review, this Court will not
interfere with the trial court's discretion in determining
custody unless that discretion is abused.
Davis v. Davis, Ky.
App., 619 S.W.2d 727 (1981).
It appears that the trial court did not make its ruling
solely on economic factors as appellant contends, but rather that
the judge weighed all relevant factors under KRS 403.270 as it
relates to the best interest of the child in awarding custody of
the child to the father and that his ruling is obviously not
clearly erroneous.
Appellant also argues that the trial court erred when
it failed to consider joint custody.
Citing Chalupa v. Chalupa,
Ky. App., 830 S.W.2d 391 (1992) and Squires v. Squires, Ky., 854
S.W.2d 765 (1993), appellant contends that the trial court must
not have considered joint custody since the court did not, in
fact, grant joint custody.
Again, this is not the case.
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The
trial court judge specifically stated in his findings that he had
considered Dr. Johnson's testimony and was impressed with said
report and found the evaluation to be very thorough in assessing
the parties.
As appellant states in her brief, Dr. Johnson
recommended that the court award joint custody with primary
residency with the father.
To now claim that the judge did not
consider that evidence when making his final determination as to
sole custody simply ignores the evidence and facts.
In this matter, the Jefferson Circuit Court made
specific findings based upon all the evidence presented and
applied the correct standard under KRS 403.270 as to awarding
custody to the father based upon the best interest of the child.
Custody questions are among the most difficult issues to be
resolved.
However, in this case, we cannot say that the findings
of the trial court were clearly erroneous.
Therefore, we affirm.
ALL CONCUR.
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CR 54.01.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alan W. Roles
Louisville, KY
Peter L. Ostermiller
Robert G. Stallings
E. Bruce Blythe, III
Louisville, KY
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