JUDY JONES TRAUGHBER (NOW GREEN) v. DARRELL TRAUGHBER
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RENDERED: DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002680-MR
JUDY JONES TRAUGHBER (NOW GREEN)
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NO. 93-CI-00247
v.
DARRELL TRAUGHBER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE: Judy Jones Traughber (now Green) appeals from an
order entered by the Warren Circuit Court on July 19, 1999, that
changed the primary residential custodian of her daughter from
her to her former husband, Darrell Traughber.
Since the change
of the primary residential custodian in this joint custody case
occurred prior to this Court’s rendition of Scheer v. Zeigler,1
1
Ky.App., 21 S.W.3d 807 (2000).
which overruled Mennemeyer v. Mennemeyer,2 the circuit court, in
part, followed the Mennemeyer test.
However, since the circuit
court went beyond the Mennemeyer test and also found proper
grounds for a change in custody under the “serious endangerment”
standard of KRS3 403.340, we affirm on the latter grounds.
Judy and Darrell were married on August 24, 1991, and
their marriage was dissolved by decree on March 3, 1994.
daughter, Susan Paige, was born on March 23, 1992.
Their
Pursuant to
the divorce decree, the parties were awarded joint custody of
Susan with Judy “to act as the primary custodial parent.”
On March 25, 1998, Darrell filed a motion for change of
custody wherein he asked the circuit court “to grant him sole
custody or, in the alternative, designate him as the residential
custodial party sharing joint custody of the minor child.”
In
support of his motion, Darrell stated that he had been “granted
custody by the Warren District Court by virtue of a Temporary
Custody Order.”
Darrell also filed in support of his motion his
affidavit wherein he swore that “[t]here have been numerous
hearings before the Warren District Court regarding my former
wife, Judy . . . , and her use of marijuana, and other
circumstances in the home that are inappropriate to be occurring
within a home with a six-year-old child present.”
2
Ky.App., 887 S.W.2d 555 (1994).
3
Kentucky Revised Statutes.
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On April 22, 1998, Darrell supplemented his motion for
change of custody by filing a second affidavit, wherein he
reiterated his previous allegations and provided more specific
claims that Judy was having serious parenting problems with her
two teenage daughters from a previous marriage.
Darrell claimed
that approximately three years previously “the two older girls
were removed from Judy’s care [; that one of Judy’s girls] has
had numerous problems, including being hospitalized . . . [for]
serious emotional and drug problems, including suicide attempts.”
Darrell also stated:
9.
Susan has told me a number of things
that caused me concern as to what goes on in
Judy’s household. Susan has talked about
marijuana cigarettes and appears to have
inappropriate knowledge for a five year old
regarding marijuana, which is how old she was
when she started talking to me about these
events.
10. Judy’s household at 606 Nutwood could
only be described as chaotic. I lived there
off and on during the time that I was married
to Judy. My disagreement with how Judy
raises Susan and her other children is that
she does not discipline the children and the
children are constantly back-talking to her.
Judy does not correct the children for
misbehavior and there are no consequences for
misbehavior. The environment is hectic and
chaotic. There is a total emphasis on
superficial appearances and not on the actual
care and welfare of the children’s mental and
moral environment.
11. I believe my daughter, Susan, would be
subjected to emotional, mental and physical
endangerment if custody were returned to
Judy. Furthermore, Judy and I cannot agree
as to an environment that would be safe for
my child. The environment that Susan was in
while in her mother’s care was injurious to
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her emotional, moral, mental and physical
health. The environment was chaotic when I
lived there and I believe that Judy is not
able to change her parenting methods and
cannot be cooperative with me in good faith
if she is the custodial parent.
12. It would be in the best interest of my
daughter, Susan, if I were granted her sole
custody or, in the alternative, if I were
designated her residential custodian in order
to protect her from the unhealthy environment
that exists in her mother’s care.
Darrell also filed an affidavit from his current wife,
Geavonda Traughber, that alleged Judy had engaged in sexual
conduct with a man that was accidently witnessed by Susan and
that she had smoked marijuana with one of her teenage daughters.
Geavonda also expressed her opinion “that Susan has had a serious
endangerment of her physical, mental, moral or emotional health.
. . [and] that it would be harmful and injurious to Susan’s
present and future health to be returned to her mother.”
On April 30, 1998, Judy filed a motion seeking “an
immediate return of . . . Susan.”
The Domestic Relations
Commissioner heard evidence in this matter at hearings conducted
on May 29, June 17, and July 15, 1998, but he did not file his
report until June 3, 1999.
The Commissioner noted under
Mennemeyer, supra, that “[t]his is a case of joint custody, and
the court finds that the joint custodians are unable or unwilling
to rationally cooperate with each other regarding decisions
affecting the upbringing of the child, and that said behavior
constitutes an inability of one or both parties to cooperate for
the benefit of the child and therefore the court should consider
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the best interests of the child in reaching the decision to
modify custody.”
After discussing evidence related to various
problems of both parents, the Commissioner observed that
“[n]either party has done all that well with what they have.”
The Commissioner concluded his report by recommending that “it
would be in the best interests of Susan for Judy to be designated
as residential custodian, with the parties to maintain joint
custody.”
On June 14, 1999, Darrell filed exceptions to the
Commissioner’s report as well as numerous motions.
The motions
included a motion for a new hearing due to the long delay from
the date of the last hearing on July 15, 1998, and the date the
Commissioner’s report was filed on June 3, 1999; a motion for an
in camera interview of Susan; and a motion for more specific
findings of fact.
Judy responded to Darrell’s exceptions, but
did not file her own exceptions.
In its order changing the residential custodian that
was entered on July 19, 1999, the circuit court indicated that
following the hearing on exceptions it “reviewed the whole
record, including the videotapes of the DRC’s hearings.”
The
circuit court found “that the record supports the DRC’s
recommended finding that Darrell has shown the parties’ inability
to cooperate which justifies a review of joint custody . . . [and
it] adopt[ed] the recommended finding that joint custody would be
in the child’s best interests.”
However, “contrary to the DRC’s
recommendation, the Court [found] from the evidence that the best
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interests of the child require that Darrell be designated as
Susan’s primary residential custodian.”
Judy filed multiple
post-judgment motions under CR 52.04 and 59.05, which were denied
on October 6, 1999.
This appeal followed.
Judy’s first issue concerns whether the circuit court
erred in ruling that Darrell had met the threshold requirements
of Mennemeyer that “in non-consensual modification situations
involving joint custody, . . the trial court may intervene to
modify a previous joint custody award only if the court first
finds that there has been an inability or bad faith refusal of
one or both parties to cooperate.”4
Since Mennemeyer has been
overruled by Scheer, we are no longer concerned with the
Mennemeyer threshold requirement.
Instead, we must determine
whether the circuit court’s ruling meets the requirements of
Scheer or whether it must be vacated and remanded for further
findings.
This Court in an en banc opinion in Scheer held:
[J]oint custody is an award of custody which
is subject to the custody modification
statutes set forth in KRS 403.340 and KRS
403.350 and that there is no threshold
requirement for modifying joint custody other
than such requirements as may be imposed by
the statutes [footnote omitted].
Under KRS 403.340(2), a prior custody decree shall not
be modified by the circuit court
unless it finds, upon the basis of facts that
have arisen since the prior decree or that
4
Mennemeyer, supra at 558.
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were unknown to the court at the time of
entry of the prior decree, that a change has
occurred in the circumstances of the child or
his custodian, and that the modification is
necessary to serve the best interests of the
child.
KRS 403.340(2) and (3) continue by providing:
In applying these standards, the court shall
retain the custodian appointed pursuant to
the prior decree unless:
(a)
The custodian agrees to the
modification;
(b)
The child has been integrated into the
family of the petitioner with consent of
the custodian; or
(c)
The child’s present environment
endangers seriously his physical,
mental, moral, or emotional health, and
the harm likely to be caused by a change
of environment is outweighed by its
advantages to him.
(3) In determining whether a child’s present
environment may endanger seriously his
physical, mental, moral, or emotional health,
the court shall consider all relevant
factors, including, but not limited to:
(a)
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;
(b)
The mental and physical health of all
individuals involved;
(c)
Repeated or substantial failure, without
good cause as specified in KRS 403.240,
of either parent to observe visitation,
child support, or other provisions of
the decree which affect the child,
except that modification of custody
orders shall not be made solely on the
basis of failure to comply with
visitation or child support provisions,
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or on the basis of which parent is more
likely to allow visitation or pay child
support;
(d)
If domestic violence and abuse, as
defined in KRS 403.720, is found by the
court to exist, the extent to which the
domestic violence and abuse has affected
the child and the child’s relationship
to both parents.
In addition to finding that the evidence satisfied the
Mennemeyer threshold “that there has been an inability or bad
faith refusal of one or both parties to cooperate,” the circuit
court also noted:
3.
Moreover, it was implied in Mennemeyer,
887 S.W.2d at 557, that if a party to joint
custody can meet the higher burden of proving
grounds sufficient to modify an order of sole
custody under KRS 403.340, there were per se
sufficient grounds to modify joint custody.
Thus, if a party to joint custody can prove
that the child’s present environment in the
custody of the other parent endangers the
child’s physical, mental, or emotional
health, that should be enough to likewise
modify joint custody, even if the evidence
establishes that the parties have been
cooperating in good faith with one another.
The circuit court continued by stating:
4.
Judy’s open marijuana use in the home,
the chaotic environment in Judy’s home, the
mental and emotional state of the halfsisters whom Judy could not control, and the
interventions by CFC and the district court
removing Susan from the home are all evidence
of an inability on Judy’s part to make
rational decisions regarding the child
regardless of the level of cooperation
between Darrell and her. And, while Dr.
Reeves was not able to state the magic words
“serious endangerment,” the Court concludes
that the evidence taken as a whole points to
an endangerment of Susan’s mental and
emotional health under the current joint
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custody arrangement unless Darrell is made
the primary residential custodian.
5.
Using the standard set out in KRS
403.270, the Court concludes that the best
interests of the child would be promoted by
continuing joint custody with Darrell to be
the primary residential custodian. The best
interests of the child further dictate that
Judy will have liberal opportunity to have
Susan with her. KRS 403.270 and KRS 403.320
As a general rule, a trial court has broad discretion
in determining the best interests of children when awarding child
custody.
Not infrequently, a trial judge may draw upon common
sense and personal life experiences, as well as those of mankind,
to determine that certain conduct or environment will adversely
affect children.5
In reviewing a child custody determination,
the standard of review is whether the factual findings of the
trial court are clearly erroneous.6
Findings of fact are clearly
erroneous if they are manifestly against the weight of the
evidence or not supported by substantial evidence.7
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.8
A trial court’s decision
on an award of custody will not be disturbed absent an abuse of
5
Krug v. Krug, Ky., 647 S.W.2d 790, 793 (1983).
6
CR 52.01; Reichle v. Reichle, Ky., 719 S.W.2d 442, 444
(1986); Basham v. Wilkins, Ky.App., 851 S.W.2d 491, 493 (1993).
7
Wells v. Wells, Ky., 412 S.W.2d 568, 571 (1967); Poe v.
Poe, Ky.App., 711 S.W.2d 849, 852 (1986).
8
Reichle, supra.
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discretion.9
The discretion granted to a trial court allows it
to adopt a conclusion on the facts before it, if such conclusion
could have been reached by a reasonable person based on the
evidence.
Abuse of discretion implies that the trial court’s
decision is unreasonable or unfair.10
We hold that the circuit court findings of fact are
based on substantial evidence of record and not clearly
erroneous.
Furthermore, in making its determination of custody
based on those findings of fact, the circuit court did not abuse
its discretion.
The circuit court specifically found “that the
evidence taken as whole points to an endangerment of Susan’s
mental and emotional health under the current joint custody
arrangement unless Darrell is made the primary residential
custodian” [emphasis added].
While the circuit court continued
by making reference to the “best interests of the child” standard
provided for in KRS 403.270, to us it is clear that the circuit
court found and concluded that under KRS 403.340(2)(c) Susan’s
present environment with Judy as the primary residential
custodian “endanger[ed] seriously [her] physical, mental, moral
or emotional health, and the harm likely to be caused by a change
of environment is outweighed by its advantages to [her].”
Obviously, in determining whether the change of custody is
9
Dudgeon v. Dudgeon, Ky., 458 S.W.2d 159, 160 (1970); Cherry
v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
10
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994);
City of Louisville v. Allen, Ky., 385 S.W.2d 179, 182-84 (1964).
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advantageous to the child, the circuit court must consider the
child’s best interests.
We do not believe the circuit court’s
reference to the best interests standard of KRS 403.270 precludes
it from also making a determination of serious endangerment under
KRS 403.340.
The second issue raised by Judy concerns the delay of
over one-year from the date of the last hearing before the
Commissioner on July 15, 1998, and the circuit court’s decision
on July 19, 1999.
Judy states that “[t]hese facts create a
situation in which the Court is rendering a decision predicated
on evidence which is not timely as to the current status of the
parties involved.”
She claims that “due to the lack of
timeliness of the decision being made in this case, the Warren
Circuit Court erred in basing its decision on improper and dated
evidence as well as its failure to take additional, current proof
in this matter.”
Judy takes particular exception to the following
finding by the circuit court:
Susan has now lived with Darrell continuously
since March, 1998. In the pursuit of a
secure home, which the record demonstrates to
be a need paramount to the welfare of this
child, the Court cannot ignore that Susan has
been living in Darrell’s home now for almost
16 months. The time factor weighs heavily in
favor of maintaining what appears to be a
healthy status quo for Susan. Moreover, the
evidence indicates that Susan is well
adjusted in her father’s home and is enrolled
at Cumberland Trace Elementary School. She
will attend the same school beginning three
weeks from now if Darrell continues as the
residential custodian.
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Judy points out that KRS 454.350(2) provides:
Where a report, findings, or
recommendations of a commissioner or hearing
officer are required by statute or rule as a
prerequisite to an order or judgment by the
circuit or district Court the same shall be
filed within ninety (90) days of the
conclusion of the trial or hearing at which
the commissioner or hearing officer presided.
Judy claims that if the Commissioner’s report had been filed
within the 90-day period, the status quo issue would have favored
her because she “was the primary caregiver to the child from the
time of the child’s infancy through the time period immediately
preceding the May 1998 hearings.”
In response, Darrell notes that “KRS 403.270(1)(d)
requires the trial Court to consider the child’s adjustment to
his home, school, and community.”
Darrell claims that Judy’s
failure to fully exercise the visitation she was granted with
Susan contributed to the status quo favoring Darrell.
He also
claims that Judy “did not submit to the trial Court that there
had been any problems with Susan’s present living situation [and
that] [i]f there had been such problems certainly those facts
which may have supported a new or supplemental hearing would have
been brought to the Court’s attention by affidavit.”
While neither party has presented any case law that
addresses this issue, we are acutely aware of the difficult
problem that the parties and the courts face in giving the proper
weight to the stability of the child’s living arrangements in
making a child custody determination.
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Obviously, great
discretion has to be placed with the trial court in such matters;
and we do not believe that the trial court abused its discretion
concerning the status quo factor as a factor favorable to Darrell
being the primary residential custodian.
While Judy objected to the delay, she has failed to
specifically identify any additional evidence that she was not
allowed to present to the trial court.
We fail to see how merely
the taking of additional evidence by the trial court would have
benefitted Judy’s case.
Obviously, to help Judy’s case, the
additional evidence would have had to have been favorable to Judy
or unfavorable to Darrell.
The additional delay in taking
additional evidence would have added time to Susan’s residing
primarily with Darrell, whereby the status quo factor would have,
without some evidence to the contrary, favored Darrell’s position
even more.
In discussing her third issue, Judy expands her
criticism of the trial court for “its failure to take additional
proof in this matter to support its finding of facts, and [claims
it] abused its discretion in altering the Commissioner’s report
in a manner which does not properly reflect the record.”
Judy
takes particular exception to the underlined portions of the
trial court’s findings in paragraphs 6 and 7:
6.
Since Susan’s removal from the home,
Judy says that she has given up marijuana.
Her claim is supported by negative drug tests
performed routinely pursuant to the district
court’s order and continued by her
voluntarily. She has successfully completed
the reunification plan designed for her by
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CFC,[11] including parenting classes. The
two older children are back home stabilized,
according to Judy, but with ongoing
psychotherapy and medication. Judy married
Murphy Green in 1998 and moved to a large new
house with a swimming pool and ample space to
accommodate the family comfortably. Murphy
is a retired medical doctor. Judy believes
that her personal life is under control, her
older children’s turbulent lifestyle is
calmer, and she is anxious for Susan’s
return. Judy is a loving parent for Susan
and there is a close bond between this mother
and daughter. But, unless Judy has learned
stronger parenting techniques in the two
years that CFC has put her through their
various programs, Judy is not capable of
providing the control and discipline of her
older daughters necessary to protect Susan
[emphases added].
7.
According to Judy, Susan interacts well
with her half-sisters in her home, especially
the older half-sister. But, the Court is
required also to consider the mental health
of all of the individuals involved. The
Court finds that the mental health of Susan’s
half-sisters, which has been a major
contributing factor to the chaos of Judy’s
home, has yet to be demonstrated as
sufficiently settled to warrant Susan’s
permanent return [emphases added].
Judy states that “[t]he parties can only speculate as to what
current evidence the Court has relied upon in making the decision
referenced in paragraph 7.”
Darrell does not specifically
address this argument in his brief.
As we stated previously, we have reviewed the record
and we believe the trial court’s findings are supported by
substantial evidence and are not clearly erroneous.
Judy puts
great emphasis on the Commissioner’s recommendation being
11
Cabinet for Families and Children.
-14-
favorable to her, but obviously the trial court was authorized to
give the Commissioner’s report whatever weight it chose.12
As we
noted concerning the status quo issue, Judy has failed to specify
any evidence that she wished for the trial court to consider that
was rejected by the trial court.
The trial court’s obligation
was to decide the case based on the evidence before it.
If the
trial court had wanted to allow for the submission of additional
evidence, it certainly would have been within its discretion to
have done so.
But, in the same regard, the trial court’s
determination to decide the case on the evidence before it was
also certainly not an abuse of discretion.
Judy concludes her brief with an argument alleging
cumulative error.
Having found no error, there are no grounds
for finding cumulative error.
Accordingly, the order of the
Warren Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
David F. Broderick
Andrew A. Stanford
Bowling Green, KY
Pamela C. Bratcher
Bowling Green, KY
ORAL ARGUMENT FOR APPELLANT:
David F. Broderick
Bowling Green, KY
12
Eiland v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997).
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