BRENDA J. WATSON v. MARK WATSON
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RENDERED: June 4, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003077-MR
BRENDA J. WATSON
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 97-CI-315
v.
MARK WATSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from that portion of a decree
of dissolution determining custody and support for the parties’
minor child.
Upon reviewing appellant’s arguments in light of
the record herein and the applicable law, we affirm.
Appellant, Brenda Watson, and appellee, Mark Watson,
were married on November 30, 1991.
One child was born of the
marriage, Jordan Nicole Watson, born June 11, 1992.
On April 1,
1997, Mark filed the petition for dissolution of marriage.
The
parties reached an agreement as to all issues except custody,
visitation, and support of Jordan.
A hearing on those issues was
held before the domestic relations commissioner on September 2,
1997.
In the hearing, evidence was presented that Mark had a
serious problem with alcohol and that he had been hospitalized
and arrested for problems related to his alcohol abuse.
There
was further evidence that the child had ridden in a car with Mark
when he had been drinking alcohol.
There was evidence that
Brenda had in the past smoked marijuana around the child and had
likewise driven the child while she was under the influence of
alcohol.
In his recommendations, which were ultimately adopted
by the court, the commissioner did not find either parent unfit.
However, the commissioner did express concern for the child’s
well-being in the care of both parents, especially Mark.
The
commissioner recommended joint custody, with each parent having
possession of the child on alternating weeks.
The commissioner
further recommended that on the weeks when Mark had the child,
his mother, who has frequently cared for the child, would monitor
and supervise Mark’s custody of the child.
The commissioner
advised that if at any time the paternal grandmother determines
that Mark’s condition poses a threat to the child, she has the
authority to temporarily terminate Mark’s possession of the
child.
The commissioner also recommended that the paternal
grandmother continue to provide after school and other workrelated day care services.
As to “support” for the child, the commissioner stated:
The parties shall each provide for the
support of the child while the child is in
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their respective possession, and each party
should be ordered to pay the paternal
grandmother the sum of $25.00 per week as
support for the child, . . .
From the judgment adopting the above recommendations of the
commissioner, Brenda now appeals.
We note that no appellee’s
brief was filed in the case.
Brenda first argues that the court’s ruling which
requires the paternal grandmother to monitor and supervise Mark’s
custody of the child is essentially an award of joint custody to
her and the paternal grandmother.
Brenda cites those cases which
hold that a court can only award custody to a non-parent if it
has found that the parents are unfit.
Fitch v. Burns, Ky., 782
S.W.2d 618 (1989); Davis v. Collinsworth, Ky., 771 S.W.2d 329
(1989); McNames v. Corum, Ky., 683 S.W.2d 246 (1984).
Brenda
also cites Greathouse v. Shreve, Ky., 891 S.W.2d 387 (1995),
wherein it was held that the best interest test did not apply to
a custody decision between the natural father and the maternal
grandmother, even though the child’s mother joined in the
maternal grandmother’s petition.
We would distinguish the case at hand from those cited
above by the fact that it was a joint custody award where neither
parent was denied custody.
Although the paternal grandmother was
given the authority to monitor and supervise the father’s
physical custody of the child, the grandmother was not named a
joint custodian.
The decision was clearly for the purpose of
safeguarding the welfare of the child in the father’s custody,
where there were concerns as a result of the father’s alcohol
problems but perhaps not sufficient basis to find the father
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unfit.
We see nothing wrong with such stipulations.
On the
contrary, we applaud the court’s prophylactic measures to protect
the child.
In Calhoun v. Calhoun, Ky., 559 S.W.2d 721 (1977), it
was held that cohabitation of parent and the child’s grandparent
does not give rise to the grandparent being the de facto
custodian.
In the absence of evidence that Mark has abandoned
the child in the care of the grandmother, we cannot say the award
of custody to him was actually an award to the grandmother.
Accordingly, the court did not abuse its discretion in its award
of joint custody.
See Eviston v. Eviston, Ky., 507 S.W.2d 153
(1974).
Brenda also argues that the court erred in ordering the
parents to pay the paternal grandmother $25.00 a week “as support
for the child.”
Brenda maintains there is no authority for
requiring a parent to pay support to a non-custodian of the
child.
We agree that the order could have been more artfully
worded because there is no authority for paying child support to
a non-custodian.
See KRS 403.211(1).
However, upon further
review of the order, it is apparent that the monies were not
“support” under KRS 403.211, but were actually compensation for
day care provided by the grandmother ($40.00 a week) and for
expenses of the child while in the grandmother’s care ($3.75 a
week for school breakfast).
A trial court’s findings of fact in
a domestic action will not be reversed unless they are clearly
erroneous.
Ghali v. Ghali, Ky. App., 596 S.W.2d 31 (1980).
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As
the payment to the grandmother was justified by the record, we
cannot say it was clearly erroneous or an abuse of discretion.
Finally, Brenda complains about the court’s order
requiring the parents to use the paternal grandmother for after
school and work-related day care services.
There was evidence
that the paternal grandmother had provided these services in the
past and apparently had a close relationship with the child.
Given our interest in promoting the special bond between
grandparents and grandchildren, see King v. King, Ky., 828 S.W.2d
630 (1992), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L.
Ed. 2d 289 (1992), and in preserving the stability in the child’s
daily schedule, we do not feel the court abused its discretion in
requiring the parents to continue to use the paternal grandmother
for after school and work-related day care.
We also note that
the court likewise encouraged the continuation of the close
relationship between the child and the maternal grandmother.
In sum, we do not see the court’s decision as a ruse to
circumvent the law and allow the paternal grandmother to have
custody.
Therefore, for the reasons stated above, we affirm the
judgment of the Boone Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Greg D. Voss
Edgewood, Kentucky
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