DERON TURSANY v. SHARON EISNER
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002376-MR
DERON TURSANY
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 97-CI-00890
v.
SHARON EISNER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
Deron Tursany (Tursany) appeals from an order
of the Campbell Circuit Court dated September 1, 2000, which
denied his motion for physical custody of his minor child.
We
affirm.
Tursany and Sharon Eisner (Eisner) are the parents of
Rhealynn Eisner (Rhealynn), who was born on July 30, 1994.
Rhealynn has lived with Eisner since her birth.
Pursuant to an
order of the trial court entered April 27, 1998, the parties
share joint custody of Rhealynn with Eisner as the custodial
parent.
The order also set forth a schedule for Tursany’s
visitation with Rhealynn.
On January 31, 2000, less than two years after entry of
the joint custody order, Tursany filed a motion seeking physical
custody of Rhealynn.
In support of the motion, Tursany filed an
affidavit in which he alleged that he and Eisner were having
disputes regarding his visitation with Rhealynn.
Specifically,
Tursany alleged that Eisner failed:
to have the child available at the beginning
of my visits and to be available at the end
of my visits to reclaim our child. [Eisner]
regularly refuses to follow through on
activities arranged for our daughter when it
obliges her to make sure that Rhealynn
attends an event that falls during her time
with the child.
Tursany also alleged that he was often told to pick up or drop
off Rhealynn at the homes of Eisner’s relatives, and that
Rhealynn told him that she often stays with Eisner’s relatives.
Tursany indicated that Rhealynn’s life had no structure at
Eisner’s house, and that she and an older half-sibling were
occasionally left home alone.
The affidavit stated that Eisner
often asked him to pick up Rhealynn earlier or drop her off later
than the times set forth in the joint custody order.
Aside from the problems with visitation, Tursany
alleged in the affidavit that while he and his wife were active
in Rhealynn’s school, Eisner had not attended any parent-teacher
conferences.
According to Tursany, Rhealynn was often dressed in
dirty clothes and unbathed when he picked her up for visitation.
He also alleged that he smelled marijuana in Eisner’s home when
he dropped Rhealynn off.
According to the affidavit, Tursany’s
wife observed Rhealynn wearing the same clothes to school on
Monday that she had on when dropped off on Sunday after
-2-
visitation.
Tursany also stated that Eisner sent him “a letter
in which she insisted that all communications between us
concerning our daughter must occur through her attorney.”
Tursany also included an affidavit from his wife,
Kelly, in which she stated that the allegations contained in his
affidavit were accurate.
Kelly alleged that Eisner “generally is
either confrontational about issues that arise between us
concerning the child, or very uncaring with respect to requests
we make or concerns we raise with respect to Rhealynn.”
A hearing on Tursany’s motion was held before a
Domestic Relations Commissioner (the DRC).
Tursany testified
that he generally gets the minimum amount of visitation set forth
in the joint custody order.
According to Tursany, he gets to
spend more time with Rhealynn “if things are going well between
Sharon and myself,” but when he and Eisner argue “she has stated
I will not get [Rhealynn] anymore than my time that is required
by law.”
In regard to the visitation problems, Tursany testified
that they have problems with trying to contact Eisner to find out
if she is going to pick Rhealynn up or they are going to drop her
off.
Sometimes Eisner leaves a note on her door telling them
where to take Rhealynn.
Tursany testified that Eisner currently
has no phone in her house but appears to have a cell phone.
Tursany stated that Rhealynn calls Eisner’s boyfriend “Dad” and
calls him “Poppy.”
In regard to Rhealynn’s health, Tursany stated that
when she gets sick Eisner will call and ask him what to do.
He
further testified that Rhealynn’s doctor appointments are usually
-3-
made on days when he has her or he takes off work to take her to
the doctor.
On cross-examination, Tursany agreed that Rhealynn was
healthy and active, that she had good grades, and that her shots
were up to date.
He also agreed that Eisner had taken Rhealynn
to the doctor on several occasions.
Tursany further agreed that
his motivation in seeking physical custody of Rhealynn was his
belief that he and his wife could provide a more stable
environment than Eisner.
Tursany acknowledged that there have
been periods of time when he and Eisner were able to agree on
issues concerning Rhealynn, and also agreed that he has
occasionally been less than cordial with Eisner.
Tursany also
agreed that some of their problems could be solved by setting up
a set exchange time and place.
In his opinion, Eisner does not
encourage his relationship with Rhealynn because Rhealynn does
not call him “Dad.”
Kelly Tursany testified that she volunteers at
Rhealynn’s school and participates in school activities and
functions.
In Kelly’s opinion, communications with Eisner are
good at times and hostile at times.
Kelly stated when Tursany
and Eisner argue, Tursany’s visitation is limited to that
provided in the joint custody order, and then when the
relationship improves they get to see Rhealynn more often.
Like
Tursany, Kelly testified that it would be in Rhealynn’s best
interest to live with them because they can provide a stable and
consistent environment.
On cross-examination, Kelly agreed that
Rhealynn is verbal, inquisitive, healthy, and active.
-4-
Kelly
agreed that Rhealynn was well-taken care of at Eisner’s, but
stated that she and Tursany could provide more stability.
In a report dated August 3, 2000, the DRC recommended
that Tursany’s motion be denied.
In so finding, the DRC stated:
Petitioner and Respondent have joint legal
custody of Rhealynn. At the time of the
hearing in this case, the state of the law as
indicated in the case of Mennemeyer v.
Mennemeyer, 887 S.W.2d 555 (Ky.App., 1994)
established a threshold requirement that the
Court find an inability or bad faith refusal
to cooperate before a party may proceed to
attempt to modify a joint custody decree. In
this present case, having heard the testimony
of the parties and all witnesses, the
Domestic Commissioner finds that Petitioner
and Respondent have shown an ability to
cooperate regarding decisions effecting the
upbringing of their child. In fact, it
appears that Petitioner and Respondent have
cooperated better than most parents who
appear before this Court. This is not to say
that the parties have not had disputes and
have had occasions when they have not
cooperated with each other. However,
Petitioner and Respondent have made a joint
determination to send their daughter to a
parochial school, and on occasions Respondent
has contacted Petitioner to obtain
Petitioner’s opinion regarding an illness or
special medical problem with Rhealynn.
Another important aspect of the cooperation
of these parties is that Petitioner has often
requested extra time with his daughter for
special events such as birthday parties, and
Respondent has usually agreed to this extra
time. Petitioner has also asked for extra
time when there was no special event, and
Respondent usually agreed.
Based upon the requirement in the Mennemeyer
case that the Court first find an inability
or bad father refusal on the part of one of
both parties to cooperate regarding the
decisions effecting [sic] the upbringing of
the child, the Domestic Commissioner finds
that the inability or bad faith refusal to
cooperate does not exist in this case, and
therefore this threshold has not been met.
-5-
Presently, the statue of the Mennemeyer case
is unsettled and may be overruled by a recent
Court of Appeals case. However, even if
Mennemeyer is overruled, and the state of the
law reverts back to the status prior to
Mennemeyer, the Domestic Commissioner cannot
find that the modification of the joint
custody arrangement should occur. Both
Petitioner and Respondent, and the witnesses
that testified at this hearing, all
acknowledge that Rhealynn is a happy and
healthy child, and that she has done very
well in kindergarten. Obviously the joint
custody arrangement for Rhealynn has been
successful. There have been times when the
parties do not get along, but overall the
joint custody arrangement for Rhealynn has
been successful. It does also appear that
Petitioner has the belief that he can provide
a better home, a better environment and more
stability for Rhealynn, and that Petitioner
does not approve of Respondent’s life style,
living arrangements or her employment.
However, even if the Mennemeyer case is
overruled, Petitioner filed his motion to
modify custody within two years after the
Order was entered on April 23, 1998, and this
Commissioner cannot find that Rhealynn’s
present environment may seriously endanger
her physical, mental, moral or emotional
health.
For the reasons stated above, the Domestic
Commission finds that Petitioner’s motion to
modify custody should be denied, and the
joint legal custody arrangement as ordered by
this Court on May 23, 1998 shall remain in
effect.
The DRC also recommended that the parties be referred to a local
mediator to resolve issues regarding custody and the drop
off/pick up procedures.
In his objections to the DRC’s report, Tursany once
again maintained that he and his wife could provide a more stable
environment for Rhealynn.
Tursany also alleged that Eisner’s
circumstances had “apparently” changed since the date of the
hearing because Eisner and Rhealynn had “virtually” moved in with
-6-
Eisner’s mother “although there is some back and forth between
that residence and their former home.”
Tursany argued that
Eisner’s change in residence would have been a factor in the
DRC’s recommendations had he been aware of it.
However, it is
interesting to note that Tursany made no attempt to reopen the
proceedings before the DRC to place these additional facts before
him for consideration.
The trial court overruled Tursany’s
objections and adopted the DRC’s report and recommendations in an
order entered September 1, 2000.
This appeal followed.
Tursany maintains that he presented evidence sufficient
to satisfy the standards of both Mennemeyer and Scheer v.
Zeigler, Ky.App., 21 S.W.3d 807 (2000), which overruled
Mennemeyer.
Having reviewed the record on appeal, we disagree.
In order to modify a joint custody order under
Mennemeyer, which was the law in effect at the time of hearing,
the petitioning party must show “that there has been an inability
or bad faith refusal of one or both parties to cooperate.”
Mennemeyer, 887 S.W.2d at 858.
Although the evidence of record
shows that the parties have had disputes in the past, there has
been no evidence which shows inability or a bad faith refusal to
cooperate on Eisner’s behalf.
Tursany agreed that Eisner allows
him the minimum amount of visitation under the joint custody
agreement and that he occasionally has visitation with Rhealynn
above and beyond the minimum provided by the order.
Ongoing
arguments about issues surrounding a child are not sufficient to
satisfy the Mennemeyer standard absent a showing of inability or
-7-
bad faith refusal to cooperate on behalf of the non-petitioning
party, this has not been shown.
Nor does the evidence satisfy the Scheer standard for
modification.
Under Scheer, a party seeking to modify a joint
custody order must comply with the custody modification
provisions of KRS 403.340 and KRS 403.350.
814.
Scheer, 21 S.W.3d at
Under KRS 403.340, a party who seeks modification of a
custody order before two years have passed since the date of its
entry must show that “[t]he child’s present environment may
endanger seriously his physical, mental, moral, or emotional
health.”
KRS 403.340(1)(a).1
As the evidence shows, both
Tursany and his wife agree that Rhealynn is healthy and active
and that the sole ground for the motion is their belief that they
can provide a more stable environment for her.
Although
Tursany’s affidavit alluded to the scent of marijuana in Eisner’s
home, this was not developed during the hearing.
Based on the
evidence contained in the record, Tursany has not satisfied KRS
403.340(1)(a).
Finally, Tursany maintains that Eisner’s conditions
have changed significantly since the hearing and that the DRC and
the trial court refused to take this into account in denying his
motion.
However, we note that aside from the allegations
contained in Tursany’s objections to the DRC’s report, there is
no evidence of any change in Eisner’s living arrangement and
1
KRS 403.340(1)(b), which allows for modification of a
custody order before the two year period if the child has been
placed with a de facto custodian, has no application to this
case.
-8-
there was no attempt by Tursany to reopen the proceedings before
the DRC to address his concerns.
Because Tursany failed to move
to reopen the matter before the DRC and the trial court for
consideration of this evidence, it would not be proper for us to
remand this matter with orders to do so.
Having considered the parties’ arguments on appeal, the
order of the Campbell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Susanne Cassidy
Covington, KY
Carl Turner
Cold Spring, KY
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
