RONALD STACY V. DORA JEAN STACY
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RENDERED: June 5, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0949-MR
RONALD STACY
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 95-CI-00572
V.
DORA JEAN STACY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
* * * * * * * *
BEFORE:
GARDNER, JOHNSON and MILLER, Judges.
GARDNER, JUDGE:
This is an appeal by Ronald Stacy (Ronald) from an
order of the Laurel Circuit Court which, inter alia, awarded
custody of the parties' two minor children to appellee, Dora Jean
Stacy, and restricted his visitation with the children.
We affirm
in part and reverse and remand in part.
Ronald and Dora were married on December 24, 1985.
The
marriage produced two children, Ronald Dean, born November 30,
1987, and Anthony Wayne, born November 15, 1988.
On September 1,
1995, Dora filed a petition to dissolve the marriage.
Among other
things, Dora requested custody of Ronald Dean and Anthony.
Ronald
filed a response and likewise requested custody of the children.
Hearings on the merits were held in February and July, 1996, before
the Domestic Relations Commissioner (Commissioner). On October 30,
1996, the Commissioner filed his report.
Following objections by
Ronald, on January 10, 1996, a hearing was held before the trial
court addressing Ronald's exceptions to the Commissioner's report.
On January 31, 1997, the trial court entered an order, inter alia,
limiting Ronald's visitation to two hours of supervised visitation
per week, and ordering the Commissioner to prepare new findings of
fact and conclusions of law reflecting the rulings of its order.
On March 18, 1996, the trial court entered a decree of dissolution
of marriage.
Ronald filed a motion to alter, amend, or vacate the
decree. This appeal was filed prior to the trial court's ruling on
the motion, and the motion was withdrawn.
At the conclusion of the final hearing on the merits, the
Commissioner and the parties engaged in a bench conference. In the
course of this conference the Commissioner instructed Ronald to
visit the children prior to the Commissioner's planned interview
with the children.
Ronald did not visit the children, nor did the
Commissioner interview the children.
Ronald argues that it was
improper for the Commissioner to submit his recommendations prior
to compliance with his instructions to the parties.
The trial
court may interview a child in chambers to ascertain the child's
wishes regarding his custodian and visitation.
Kentucky Revised
Statute (KRS) 403.290. It is discretionary with the trial judge as
to whether he should interview a child.
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Brown v. Brown, Ky., 510
S.W.2d 14 (1974).
In deference to the discretion of the trial
court, acting through its Commissioner on this matter, we will not
disturb its rulings just because the planned interview with the
children did not occur.
Similarly, just because a particular
visitation did not occur as planned is no basis for reversal.
Ronald contends that the trial court erred in ordering
that his visitation with the children be restricted to two hours of
supervised
visitation
per
week.
A
non-custodial
parent
"is
entitled to reasonable visitation rights unless the court finds,
after a hearing, that visitation would endanger seriously the
child's
physical,
403.320(1).
mental,
moral,
or
emotional
health."
KRS
"[T]he court shall not restrict a parent's visitation
rights unless it finds that the visitation would endanger seriously
the child's physical, mental, moral or emotional health."
403.320(3).
provide
KRS
As used in the statute, the term "restrict" means to
the
non-custodial
parent
with
something
less
than
"reasonable visitation." Kulas v. Kulas, Ky. App., 898 S.W.2d 529,
530 (1995).
Clearly the statute has created the presumption that
visitation is in the child's best interest for the obvious reason
that a child needs and deserves the affection and companionship of
both parents.
Smith v. Smith, Ky.App., 869 S.W.2d 55, 56 (1994)
(emphasis original).
The burden of proving that visitation would
harm the child is on the one who would deny visitation.
Id.
In
the trial court's order limiting visitation, the only findings of
fact relevant to this issue were as follows:
Although there is some conflict in the
testimony, it appears to the Court that
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Ronald Stacy is subject to periods when
he will become very hot tempered around
the children or otherwise.
Although
there is a dispute in the testimony it
appears that Ronald Stacy has shot at
Dora Stacy and/or threatened Dora Stacy
in the presence of the infant children of
the parties which had such a reaction
upon the children that they have been
required to seek counseling.
The trial court did not make the requisite findings to
restrict visitation under KRS 403.320(1).
The trial court's
failure to make the mandatory finding under KRS 403.320(1) "that
visitation would endanger seriously the child's physical, mental,
moral,
or
emotional
health"
requires
us
to
vacate
the
order
restricting visitation and remand for additional findings on the
issue of Ronald's visitation with the children.
See Alexander v.
Alexander, Ky. App., 900 S.W.2d 615, 616 (1995).
In his enumerated Argument III, Ronald makes several
contentions.
He alleges that it was not proper for the trial court
to award sole custody of the children without first considering
joint custody.
This is incorrect.
preference for joint custody.
S.W.2d 765, 769-770 (1993).
In Kentucky there is no
See Squires v. Squires, Ky., 854
Ronald then raises the issue that
there is no evidence in the record to indicate whether the trial
court ever considered joint custody. Dora argues that the issue is
not preserved for our review because Ronald failed to raise the
issue before the trial court.
unless
the
trial
court
has
No claim will be heard on appeal
made
or
been
unambiguous findings on all essential issues.
Ky., 937 S.W.2d 713 (1997).
requested
to
make
Eiland v. Ferrell,
Ronald raised the issue in his motion
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to vacate.
However, this appeal was filed before the trial court
ruled on the motion to vacate and Ronald withdrew his motion.
Because
of
this,
we
agree
that
the
issue
is
unpreserved.
Nevertheless, following is an examination of joint custody issues
on the merits.
KRS 403.270(4) provides that the court may grant joint
custody to the children's parents if it is in the best interest of
the children.
There is no preference in favor of either joint
custody or sole custody.
Squires v. Squires, supra.
The parties
are entitled to an individualized determination of whether joint
custody or sole custody serves the best interest of the children.
Squires v. Squires, 854 S.W.2d at 770.
In determining whether
joint custody is appropriate, the trial court must initially
consider the factors set forth in KRS 403.270(1).
Squires, 854 S.W.2d at 769.
Squires v.
Thereafter, the court should assess
the likelihood of future cooperation between the parents and their
respective levels of emotional maturity.
Id.
In deciding whether
joint custody is appropriate, the trial court must weigh the
positive and negative aspects and determine whether joint custody
is in the best interest of the child.
S.W.2d at 768.
Squires v. Squires, 854
The trial court possesses broad discretion in
determining whether joint custody serves the child's best interest.
Squires v. Squires, 854 S.W.2d at 770; McNamee v. McNamee, Ky., 432
S.W.2d 816 (1968). While the decree does not specifically refer to
the issue of joint custody, a great deal of evidence was adduced on
the issue of child custody.
We have reviewed this evidence and,
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regardless of whether we might have reached a different conclusion
if sitting as the triers of fact, we cannot say that the trial
court abused its broad discretion by determining that it was in the
children's best interest to award sole custody to appellee.
Ronald next argues that the trial court applied the wrong
test to the issue of custody.
He alleges that the trial court
applied the "primary caretaker test" rather than the "best interest
of the child" test as set forth in KRS 403.270.
In rendering child
custody decisions the trial court is bound by the "best interests"
standard set out in KRS 403.270:
(1) The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be
given to each parent.
The court shall
consider all relevant factors including:
(a) The wishes of the child's parent or
parents as to his custody;
(b) The wishes of the child as to his
custodian;
(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; and
(e) The mental and physical health of all
individuals involved.
"In child custody cases, the trial court must consider
all relevant factors including those specifically enumerated in KRS
403.270(1) in determining the best 'interests of the child.' In so
doing, it is mandatory under CR 52.01 that the facts be so found
specifically."
McFarland v. McFarland, Ky. App., 804 S.W.2d 17
(1991) (emphasis original).
However, the appellate court may look
to the entire record to determine whether the factual findings are
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clearly erroneous or the trial judge abused its discretion. Cherry
v. Cherry, 634 S.W.2d at 425.
While the trial court could, in
drafting its rulings regarding child custody, have better observed
the elements of KRS 403.270, nevertheless, the findings the trial
court did make were of the type, under the statute, relevant to the
best interests of Ronald Dean and Anthony Wayne.
Among other
things, the trial court found that Dora was the parent who took the
children to the doctor and dentist, enrolled the children in
school, attended PTA meetings, was responsible for the children's
social activities, and was the one who cooked, bathed, and attended
to the other personal needs of the children.
On the other hand,
the trial court found that Ronald was very hot tempered around the
children and had threatened Dora in the presence of the children.
The trial court concluded that Dora "is most definitely the person
who has accepted the role of parenting and care taking for the
children and should continue in this role."
The trial court is in
the best position to evaluate the testimony and weigh the evidence,
so an appellate court should not substitute its own opinion for
that of the trial court.
442, 444 (1986).
Reichle v. Reichle, Ky., 719 S.W.2d at
Considering the entire record, even though the
trial court could have better observed the elements of KRS 403.270,
we cannot say the trial court abused its discretion in awarding
sole custody of the children to Dora.
Finally, Ronald argues that it was not proper for the
trial court to sign and enter the dissolution decree prepared by
the Commissioner prior to the running of the ten day objection
-7-
period prescribed by CR 53.06.
sequence
of
events,
the
We disagree.
March
17,
1997
As evidenced by the
filing
was
not
a
"commissioners report" within the meaning of CR 53.06. Following a
hearing on the merits, on October 31, 1996, the Commissioner
entered his report.1
On November 8, pursuant to CR 53.06, Ronald
filed objections to the Commissioner's report.
hearing was held on these exceptions.
On December 13, a
On January 31, 1997, the
trial court issued an order ruling on Ronald's exceptions and
ordering the Commissioner to prepare new findings of fact and
conclusions of law for the court's signature, reflecting its
rulings, and otherwise overruling any other exceptions by Ronald.
Pursuant
to
the
trial
court's
instructions,
on
March
17
the
Commissioner filed a document identical to its October 31 report
with the exception that three paragraphs were added to reflect the
trial court's January 31 rulings.
The trial court signed this
document on March 18, 1997.
The March 17 filing of the Commissioner was drafted at
the trial court's direction for the purpose of implementing the
rulings made in its January 31 order.
These modifications to the
original report were not the commissioner's recommendations.
The
Commissioner's recommendations remained unchanged from the October
31 report, and in preparing the final draft of the decree the
Commissioner was merely acting as a scrivener under the trial
court’s direction.
Under these circumstances, Ronald was not
1
Rather than a “report”, this document was a recommended
findings of fact, conclusions of law, and decree of dissolution of
marriage, ready for the trial court’s signature.
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entitled to file a second round of exceptions.
The proper means to
challenge the trial court's final decree is by means of a CR 60.02
motion to vacate.2
The
order
of
the
trial
court
is
affirmed
in
part,
reversed in part and remanded for further proceedings consistent
with this opinion.
ALL CONCUR.
2
We note that appellant did file a CR 60.02 motion raising
this issue. However, prior to the trial court’s ruling, appellant
filed this appeal and withdrew the motion. In view of this, this
issue is not properly preserved for our review. The trial court
should first be given the opportunity to rule on questions before
they are available for appellate review. Massie v. Persson, Ky.
App., 729 S.W.2d 448, 452 (1987). However, appellee did not raise
this argument and we have accordingly addressed the issue on the
merits.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Elliott Yeager
Baroubrville, Kentucky
Larry G. Bryson
London, Kentucky
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