JOE DONOHEW v. SHERRY PURVIS (NOW JACKSON)
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RENDERED:
September 7, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003014-MR
JOE DONOHEW
v.
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 92-CI-00074
SHERRY PURVIS (NOW JACKSON)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Joe Donohew has appealed from an order entered by
the Rowan Circuit Court on October 27, 1999, which awarded sole
custody of his son to the child’s mother, Sherry Purvis Jackson.
Having concluded that the trial court did not err in considering
Sherry’s objections to the Domestic Relations Commissioner’s
report and that the trial court’s findings were not clearly
erroneous and that its custody award was not an abuse of
discretion, we affirm.
Joe and Sherry have one child together, a son named
Joseph Warren Donohew (Joey), who was born out of wedlock on June
15, 1988.
Although Joe and Sherry were never married, Joe has
openly acknowledged Joey as his son and has visited Joey and paid
child support for him.
Prior to the present action, the custody
of Joey had never been adjudicated.
On August 20, 1998, Joe filed a motion for custody of
Joey.
After reports were prepared by a CASA worker and a family
counselor, a hearing was held before the Rowan Circuit Court’s
Domestic Relations Commissioner on August 18 and 19, 1999.
After
summarizing the testimony of some 19 witnesses, the Commissioner
recommended in her report that sole custody of Joey be awarded to
Joe.
Notice of the filing of the Commissioner’s report was filed
on September 13, 1999, and the notice was mailed to the parties
on that same date.
The notice provided: “Within ten (10) days
after being served with this notice, any party may serve written
objections to the report upon the other parties.
UNLESS written
objection is served by any party on the other parties within ten
(10) days after the date of service of this notice, the Court may
adopt the report of the Commissioner as submitted.”
Sherry’s objections to the Commissioner’s report were
apparently received by the Rowan Circuit Court on September 28,
1999, 15 days after notice of the filing of the Commissioner’s
Report and Recommendations.1
1
Joe filed a response on October 6,
For one reason or another, Sherry’s objections were not
(continued...)
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1999, wherein he argued that Sherry’s objections were not timely.
The trial court considered Sherry’s objections and granted sole
custody of Joey to her, with standard visitation to Joe.
This
appeal followed.
In considering the timeliness of Sherry’s objections,
we note that CR2 53.06(2) seems to pronounce rigid guidelines for
the filing of objections to a Commissioner’s report.
It states
that “within 10 days after being served with notice of the filing
of the report any party may serve written objections thereto upon
the other parties.”
However, in Eiland v. Ferrell,3 our Supreme
Court noted that “the trial court has the broadest possible
discretion with respect to the use it makes of reports of
domestic relations commissioners.”4
The Eiland Court noted that
while a trial court is “not obligated to consider such
objections, . . . in view of the broad discretion available to
the trial court with respect to actions on commissioners’
1
(...continued)
actually filed in the Rowan Circuit Court until March 17, 2000,
long after this appeal was commenced. In addition to the file
stamp, however, the document also bears the stamp “REC’D SEP 28”,
giving rise to the inference that the circuit court actually
received the objections on September 28. The certificate of
service stated the objections were “mailed and faxed” to the
trial judge and Joe’s attorney. In any event, the objections
were evidently considered by the trial court prior to October 26,
1999, when the Rowan Circuit Court ordered that custody of Joey
be awarded to Sherry.
2
Kentucky Rules of Civil Procedure.
3
Ky., 937 S.W.2d 713 (1997).
4
Id. at 716 (citing Haley v. Haley, Ky.App., 573 S.W.2d 354
(1978); and Basham v. Wilkins, Ky.App., 851 S.W.2d 491 (1993)).
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reports,” it is not an abuse of the trial court’s discretion to
consider untimely objections.5
In the present action, the trial court clearly
considered Sherry’s objections in its order of October 27, 1999.
While under Eiland, the trial court could have ignored the
objections, it was not an abuse of the trial court’s discretion
to consider them.
We will now consider whether the trial court’s findings
were supported by substantial evidence and whether the award of
sole custody to Sherry was an abuse of discretion.
Pursuant to
CR 53.06(2), a circuit court “may adopt the [Commissioner’s]
report, or may modify it, or may reject it in whole or in part,
or may receive further evidence, or may recommit it with
instructions.”
Under CR 52.01, the trial court’s “[f]indings of
fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.”
Thus, the trial court
had the authority to wholly reject the Commissioner’s findings
and its decision can only be disturbed on appeal if it is clearly
erroneous or an abuse of discretion.
The findings can be held to
be clearly erroneous only if they were not supported by
substantial evidence.6
Substantial evidence has been defined as
evidence sufficient to induce conviction in the mind of a
5
Id.
6
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
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reasonable person.7
An abuse of discretion has been defined as
“arbitrary action or capricious disposition under the
circumstances, at least an unreasonable and unfair decision.”8
A review of the record reveals that Joey has lived with
his mother, Sherry, for his whole life and that he has lived
continuously with her in Rowan County for the past ten years.
Joey has expressed to the trial court, and to various witnesses,
his desire to live with his mother.
Joey has fostered a
relationship with his younger half-sister Kirsten.
Joey has
attended the same school and participated in numerous activities
in Rowan County for many years.
According to his teachers, at
school Joey is well-groomed and clean.
A change in custody to
his father would uproot Joey and require him to pursue his
education and other activities in a different community.
Lane
Veltcamp, a licensed family therapist, who conducted a full
custody evaluation of Joey, recommended that Joey remain with his
mother.
Taken together, all of these facts provide more than a
sufficient evidentiary basis for the trial court’s decision.
While it may be that a sufficient evidentiary basis
also exists to support a custody award in Joe’s favor, it is not
the function of the appellate courts to make factual findings or
to second guess those of the trial court.
We believe the Court
7
Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d
298 (1972).
8
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
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in Dudgeon v. Dudgeon,9 clearly expressed the challenges that
trial judges face with the responsibility of deciding custody
cases:
[C]ourts, both trial and appellate, are
presented with no problem of greater
complexity than the delicate and awesome
responsibility of adjudicating the custody of
children.
. . .
The [custody] issue must be resolved by
careful and conscientious trial judges who
weigh all relevant factors; make a difficult
decision; then are available and vigilant to
supervise the result. This is simply the
best we can do with the means available.
Appellate review must confine itself in
changing determination of the custody of
infants in divorce cases to those situations
where there is a clear and substantial
showing that the manifest error was
committed.10
The trial court’s decision was not clearly erroneous or
an abuse of discretion.
Accordingly, the custody order of the
Rowan Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michelle R. Williams
Mt. Sterling, KY
Jace Nathanson
Morehead, KY
9
Ky., 458 S.W.2d 159 (1970).
10
Id. at 162.
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