CAROLYN SUE MADDEN v. CHRISTOPHER MADDEN
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RENDERED: November 6, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003113-MR
CAROLYN SUE MADDEN
v.
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 97-CI-000082
CHRISTOPHER MADDEN
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
COMBS, KNOPF, and KNOX, JUDGES
KNOPF, JUDGE.
This is a pro se appeal by Carolyn Sue Madden from
an order of the Carter Circuit Court granting custody of the
parties’ infant child to appellee Christopher Madden and
restricting Carolyn to supervised visitation with her child.
We
affirm in part and vacate and remand in part.
The parties were married on January 15, 1994.
The
marriage produced one (1) child, Craig Anthony, born on March 18,
1995.
On March 12, 1997, Christopher filed a petition for
dissolution of the marriage and requested temporary and permanent
custody of Craig.
Carolyn filed a response to the dissolution
petition and likewise requested temporary and permanent custody
of the child.
On April 21, 1997, the trial court entered an
agreed temporary order providing for joint physical custody of
Craig.
Following a contentious interim period and several
continuances, the domestic relations commissioner (commissioner)
held a final hearing on October 17, 1997.
The commissioner
issued a report recommending, among other things, that
Christopher be awarded sole custody of the child and that
Carolyn’s visitations with Craig be supervised.
Following the
filing of exceptions by Carolyn, on November 3, 1997, the trial
court issued an order substantially accepting the commissioner's
custody and visitation recommendations.
This appeal followed.
On appeal pro se, Carolyn raises a rambling assortment
of complaints, including allegations to wit:
that she was not
adequately represented by her attorneys, that the commissioner
was unfair, that she lacked transportation to attend hearings and
transport the child, and that she did not receive notice of the
final hearing.
It appears that few of these issues were raised
before the trial court.
When the trial court has not had an
opportunity to address an alleged error, an appellate court is
precluded from reviewing the alleged error.
See, Sherley v.
Commonwealth, Ky., 889 S.W.2d 794, 799 (1994).
Furthermore,
Carolyn has failed to establish proper citation to the trial
court record that her arguments are preserved for appeal.
Errors
to be considered for appellate review must be precisely preserved
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and identified in the lower court.
Combs v. Knott County Fiscal
Court, Ky., 141 S.W.2d 859 (1940); CR 76.12(4)(c)(iv);
Skaggs v.
Assad, By and Through Assad, Ky., 712 S.W.2d 947, 950 (1986).
Nevertheless, our review of the record reflects that Carolyn’s
fundamental concerns, the awarding of custody of Craig to
Christopher and the restrictions on her visitation with the
child, are preserved for review, and we accordingly address those
issues.
We discern no abuse of discretion by the trial court in
awarding sole custody of Craig to Christopher.
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.
Neither the commissioner nor the trial court made
findings of fact addressing the best interest factors of KRS
403.270.
The trial court is obligated to make specific findings
of fact supporting its determination of the child’s best
-3-
interest.
McFarland v. McFarland, Ky. App., 804 S.W.2d 17, 18
(1991); CR 52.01.
Where these findings have not been made, as
here, the proper procedure is to request them in writing.
52.04.
CR
Failure to bring such an omission to the attention of the
trial court by means of a written request will be fatal to an
appeal.
Eiland v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997).
In
the case at bar, Carolyn did not make the requisite request for
findings of fact to now complain, on this appeal, of the trial
court’s best interest determination.
In any event, the trial judge has broad discretion in
deciding what is in the best interest of the child when making a
custody determination.
Krug v. Krug, Ky., 647 S.W.2d 790 (1983).
We will not substitute our judgment for that of the trial court
unless a manifest abuse of discretion has occurred.
Smith v.
Smith, Ky., 429 S.W.2d 387, 391 (1968); Borjesson v. Borjesson,
Ky., 437 S.W.2d 191, 193 (1969).
In view of the broad discretion
accorded the trial court in determining the best interest of the
child, we cannot say that there was an abuse of discretion in the
trial court's conclusion that Christopher should be awarded sole
custody of Craig.
The second issue preserved for our review is the trial
court’s ruling that Carolyn’s visitation with Craig be restricted
to supervised visitation at the Department of Social Services in
Carter County.
While neither the commissioner's report nor the
trial court’s order explicitly so states, in her brief, Carolyn
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states that her visitation is further restricted to one hour one
day 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, mental,
moral, or emotional health."
KRS 403.320(1).
"[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."
KRS 403.320(3).
As used in
the statute, the term "restrict" means to provide the
non-custodial parent with something less than "reasonable
visitation."
(1995).
Kulas v. Kulas, Ky. App., 898 S.W.2d 529, 530
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.
(1994).
Smith v. Smith, Ky.
App., 869 S.W.2d 55, 56
The burden of proving that visitation would harm the
child is on the one who would deny visitation.
Id.
The record reflects that Carolyn has demonstrated a
pattern of disregarding orders of the trial court.
Specifically,
Carolyn has defied the visitation schedules established by the
trial court by refusing to return Craig to Christopher pursuant
to the schedules.
As a result of her defiance, the trial court
understandably found Carolyn in contempt of court.
Presumably
the trial court had Carolyn’s pattern of contempt in mind when it
restricted visitation.
However, the trial court did not make the
-5-
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 Carolyn’s visitation with Craig.
See
Alexander v. Alexander, Ky. App., 900 S.W.2d 615, 616 (1995).
On
remand, the trial court should conduct additional proceedings, as
needed, and enter appropriate findings of fact and conclusions of
law pursuant to KRS 403.320.
For the foregoing reasons we affirm in part and vacate
and remand in part.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carolyn Sue Madden Adams
Pro se
South Bloomfield, Ohio
Charles C. Leadingham
Flatwoods, Kentucky
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