BARBARA M. TALWAR (NOW EBEL) v. SUNEEL S. TALWAR
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RENDERED:
MARCH 30, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000954-MR
BARBARA M. TALWAR (NOW EBEL)
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE N. GARBER, JUDGE
ACTION NO. 93-FD-003105
v.
SUNEEL S. TALWAR
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
Barbara M. Talwar (now Ebel) brings this appeal
from a March 17, 2000, judgment of the Jefferson Circuit Court.
We affirm.
Appellant, Barbara M. Talwar (now Ebel), and appellee,
Suneel S. Talwar, were married in 1973.
Two children were born
of the marriage, Justin, born January 8, 1988, and Brendan, born
July 23, 1990.
The marriage was dissolved September 8, 1994.
At
that time, appellant was awarded sole custody of the children and
appellee was awarded visitation by order entered November 20,
1995.
On September 3, 1998, visitation was modified, giving
appellee nearly equal time with the children.
At some point in 1997 or 1998, appellant decided to
relocate herself and the children to Florida.
Accordingly, on
June 17, 1999, while appellee and the children were out of town,
appellant petitioned the court to restructure the visitation
schedule pending her imminent move.
After his return, appellee
responded by moving for a temporary restraining order against
relocation of the children.
He simultaneously petitioned the
court for joint custody with appellee as primary custodian, or in
the alternative, sole custody of the minor children.
On July 23,
1999, the court granted appellee's temporary restraining order
which prohibited appellant from relocating the children to
Florida pending a trial on the motion for modification of
custody.
order.
Appellant moved to dissolve the temporary restraining
Appellee countered with a motion for temporary
injunction.
Appellant's motion to dissolve the restraining order
was overruled by the circuit court.
temporary injunction was granted.
Appellee's motion for
Ultimately, the circuit court
granted appellee's motion for modification of custody and awarded
joint custody of the minor children to appellant and appellee
with the children's primary residence being with appellee in
Kentucky.
This appeal follows.
Appellant first asserts the circuit court erred in
granting the restraining order and temporary injunction.
The
motion to dissolve the restraining order was overruled on August
4, 1999.
Ky. R. Civ. P. (CR) 65.03(5) provides, in pertinent
part, as follows:
Unless it provides an earlier termination
date, a restraining order shall remain in
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force until, and not after, (a) the time set
for a hearing on a motion to dissolve the
restraining order unless there is then
pending a motion for a temporary injunction,
or (b) the entry of an order on a motion for
a temporary injunction, or (c) the entry of a
final judgment, whichever is earlier.
An order granting temporary injunction was entered on
August 13, 1999, and a final judgment entered March 17, 2000.
As
such, the restraining order terminated at the very latest March
17, 2000.
The proper procedure for relief from a temporary
injunction is by motion to the Court of Appeals within twenty
days after entry thereof.
CR 65.07.
Cf. Wyatt, Tarrant & Combs
v. Williams, Ky., 892 S.W.2d 584 (1995).
In any event, the
circuit court has entered final judgment in favor of appellee.
As such, this assignment of error is also moot.
Appellant next asserts that the circuit court's
decision to modify her sole custody to joint custody was an abuse
of discretion and clearly erroneous.
CR 52.01.
a custody decree is controlled by statute.
Modification of
Kentucky Revised
Statute (KRS) 403.340(2) provides in pertinent part:
(2) If a court of this state has jurisdiction
pursuant to the Uniform Child Custody
Jurisdiction Act, the court shall not modify
a prior custody decree unless it finds, upon
the basis of facts that have arisen since the
prior decree or that 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. In
applying these standards, the court shall
retain the custodian appointed pursuant to
the prior decree unless:
. . . .
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(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. (Emphases
added.)
A trial judge has broad discretion in determining the best
interests of children when making a determination of custody.
See Krug v. Krug, Ky., 647 S.W.2d 790 (1983).
In the case sub
judice, the court found that both children wanted more time with
their father.
As a result, both children preferred to remain in
Louisville and were seriously upset by the prospect of relocating
to Florida.
This upset was manifested in the older child by
panic attacks and evidence of potential self harm.
child responded by acting and by withdrawing.
The younger
As such, the court
found the forced move would seriously endanger the health of both
children.1
The court concluded that the children's fear of
losing their father is “genuine, deep-rooted and serious.”
The
court further noted that appellant had consistently exercised
sole custody in a manner that has been a major factor causing
this serious disruption and emotional turmoil for both boys.
The
court then determined the resulting threat to the children's
emotional health, warranted modification of custody.
In arriving at the findings and conclusions included in
a detailed twenty-six-page opinion, the court relied on testimony
from no fewer than six experts.
Among those experts were a court
1
Additionally, the court evinced a concern for the boys'
relationship with their mother by noting that the boys'
perception that the mother was keeping them from their dad would
estrange them from her.
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appointed custodial evaluator, a certified child psychologist,
and a licensed clinical psychologist engaged by appellant.
These
experts were consistent in noting the children's fear of losing
contact with their father.
There is similar consistency with
respect to the seriousness of the fear and resulting adverse
consequences on the children's health.
Significantly, the court
also relied on the court's own interview with both children
separately in chambers without the parents or counsel present.
In these interviews, the court found that both children were
adamant in their desires to remain with their father.
Indeed,
the court was impressed with the emotional response of the elder
child when discussing the prospective move.
Upon the whole, we are of the opinion that the circuit
court's modification of custody was in conformity with KRS
403.340(2).
Simply stated, we do not perceive abuse of
discretion by the circuit court, nor do we perceive any findings
of fact to be clearly erroneous.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan M. Meschler
Louisville, Kentucky
Thomas M. Denbow
Louisville, Kentucky
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