CLIFTON HOLLOWELL AND JUANITA HOLLOWELL v. BELINDA KNIGHT AND BRADLEY DEAN KNIGHT
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RENDERED: May 25, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001532-MR
CLIFTON HOLLOWELL AND
JUANITA HOLLOWELL
APPELLANTS
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 96-CI-00238
v.
BELINDA KNIGHT AND
BRADLEY DEAN KNIGHT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE: Clifton Hollowell and Juanita Hollowell (the
Hollowells) bring this appeal from a June 12, 2000, judgment of
the Caldwell Circuit Court.
We affirm.
Appellees, Bradley Dean Knight and Belinda Knight1, are
the biological parents of Dakota Knight, born April 9, 1997.
Bradley and Belinda were separated at the time of Dakota's birth.
Belinda and the child resided with the maternal grandparents, the
Hollowells.
1
Although Belinda Knight is a named party to this appeal,
she has failed to file an appellate brief.
On September 14, 1998, by agreement of the parties,
Belinda was awarded sole custody of Dakota and Bradley was
granted visitation rights.
From April 1997 to October 1999, the
evidence indicates that Belinda moved in and out of the
Hollowells' home, but the Hollowells' residence remained Dakota's
primary residence.
charges.
In October 1999, Belinda was arrested on drug
Consequently, a child neglect and dependency action was
commenced in the Caldwell District Court.
Temporary custody of
the child was placed with the Hollowells.
In March 2000, Bradley
filed a custody petition in the Caldwell Circuit Court.
The
parties stipulated that the Hollowells had been the primary
caretakers of the child for a period longer than one year and
thus qualified as de facto custodians under Kentucky Revised
Statutes (KRS) 403.270.
Following a hearing, Bradley and the
Hollowells were awarded joint custody with primary physical
custody exercised by Bradley.
This appeal follows.
The Hollowells contend that the circuit court committed
reversible error by failing to properly consider KRS 403.340.
That statute states, in relevant part, as follows:
(1)
No motion to modify a custody
decree shall be made earlier than
two (2) years after its date,
unless the court permits it to be
made on the basis of affidavits
that there is reason to believe
that:
(a) The child's present environment
may endanger seriously his
physical, mental, moral, or
emotional health; or
(b) The custodian appointed under the
prior decree has placed the child
with a de facto custodian.
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We think the circuit court correctly applied KRS
403.340.
The court cited to a district court order which removed
custody from Belinda and temporarily placed it with the
Hollowells.
The circuit court also found that Belinda had been
convicted of a drug offense and had tested positive as recently
as February 2000 for drugs.
The circuit court observed that
Belinda currently lives with her boyfriend in Lyon County and
that the child resides with the Hollowells in Caldwell County.
Based upon the above evidence, the court concluded that Belinda's
sole custody seriously endangered the child's physical, mental,
moral, or emotional health under KRS 403.340.
Upon the whole, we
cannot say that the circuit court's findings were clearly
erroneous, nor can we say the circuit court abused its discretion
in so holding. Ky. R. Civ. Proc. 52.01.
The Hollowells also argue that KRS 403.340 somehow
applies to determine custody of the child between them and
Bradley.
The Hollowells were awarded temporary custody by the
district court.
In Shifflet v. Shifflet, Ky., 891 S.W.2d 392,
393 (1995), the Court held that “[c]learly the standards set
forth in this statute [KRS 403.340] are intended to apply only to
modifications of permanent awards of custody.”
As the Hollowells
had only been granted temporary custody, we do not believe that
KRS 403.340 is applicable.
The Hollowells maintain that the circuit court erred by
failing to grant them equal consideration as mandated by KRS
403.270 in determining custody.
We think not.
The circuit court
clearly viewed the Hollowells as de facto custodians and placed
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them “upon equal footing” with the natural father, Bradley.
Indeed, the court specifically concluded that “in determining
whether custody should be placed with the grandparents, who are
de facto custodians, or the natural father, the Court will use
the best interest of the child standard as established by KRS
403.270.”
We are of the opinion that the circuit court engaged
in the correct legal analysis as mandated by KRS 403.270(2).
The Hollowells further contend that the circuit court
committed reversible error by determining that the best interest
of Dakota mandated a joint custody award between them and
Bradley, with Bradley exercising primary custodianship.
The
Hollowells also maintain that the circuit court abused its
discretion by relying solely upon the age of the Hollowells in
determining the best interest of Dakota.
Our standard of review
is enunciated in Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974),
wherein the Court stated:
In reviewing the [custody] decision, the test
is not whether we would have decided
differently but whether the findings of the
trial judge were clearly erroneous or he
abused his discretion.
In deciding the best interest of Dakota, the circuit court
specifically found:
[T]he more difficult question is whether it
is in the best interest of the child to be in
the custody of his maternal grandparents or
his father.
In making this determination, the Court
must not look just to the present, but to the
future. Undoubtedly the maternal
grandparents provide a good home for this
three year old. However, it is equally
convincing that the father is capable of
providing a good home, especially in the
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environment in which he now lives. Both of
the maternal grandparents are in their late
fifties. The most difficult years in raising
this young boy remain in the future,
especially the teenage years when they will
be moving into old age.
Young Cody might very well be in the
best of hands to remain in the primary
custody of his maternal grandparents over the
next few years. However, stability is also
critical to his well being. Therefore, it is
in Cody's best interest that the Court
fashion a custody arrangement at this time
under which there will be the least amount of
upheaval and custodial chaos in his future.
At the same time, his bonding with the
maternal grandparents and his mother is
sufficient that they should also share a
substantial portion of his life.
Considering all of these things, the
Court finds that it is in the best interest
of Cody that joint custody be awarded to the
Petitioners, Clifton Hollowell, Juanita
Hollowell, and Belinda Knight, and the
Respondent, Bradley Dean Knight. . . .
After January 1, 2001, primary physical
custody shall vest with the
Respondent/father, Bradley Dean Knight,
subject to reasonable visitation awarded to
the Petitioners, Clifton Hollowell and
Juanita Hollowell. . . .
As is evident from its opinion, the circuit court
balanced many factors in determining the best interest of Dakota.
It looked to the ability of Bradley to take care of the child,
the relationship that Bradley has with the child, and his
contribution to the support of the child.
The court also noted
that Mr. Hollowell suffered from progressive heart disease and
took into account the age of the grandparents.
The circuit court
admitted that the grandparents had provided a good and stable
home for Dakota during the first three years of his life.
Upon
the whole, we do not believe that the circuit court abused its
-5-
discretion by considering the age of the grandparents.
The
circuit court considered a plethora of factors in deciding the
best interest of the child.
While we may not have found as the
circuit court, we cannot say that its findings of fact were
clearly erroneous.
Id.
Hence, we are of the opinion that the
circuit court did not commit reversible error by awarding joint
custody of the child to Bradley and the Hollowells with Bradley
serving as primary custodian.
For the foregoing reasons, the judgment of the Caldwell
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE, BRADLEY
DEAN KNIGHT:
Rebecca J. Johnson
Marion, Kentucky
Barclay W. Banister
Princeton, Kentucky
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