RICHARD HARDY v. RICHELLE HARDY LAYNE; AND GEORGE HOWELL
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RENDERED:
October 5, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002435-MR
RICHARD HARDY
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 97-CI-00208
v.
RICHELLE HARDY LAYNE;
AND GEORGE HOWELL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Richard Hardy has appealed from two orders of
the Boyd Circuit Court entered on September 13, 2000, and October
9, 2000.
Having concluded that the trial court did not abuse its
discretion in refusing to modify custody and in awarding an
attorney’s fee against Hardy, we affirm.
Richard Hardy and Richelle Hardy Layne were married on
May 5, 1988, and their marriage was dissolved by a decree of
dissolution of marriage entered on September 12, 1997.
One
child, Ian Kye Hardy, was born of this marriage.
years of age on the date of dissolution.
He was eight
In an order and
judgment entered on January 27, 1998, the trial court awarded the
parties joint custody of their son with the mother having
“primary physical custody.”
In an order entered on February 23,
1998, the trial court provided the father with additional
findings of fact regarding custody, to wit:
With respect to the issue of custody and
visitation, the Court found pursuant to KRS
403.270(4) that the best interest of the
child called for an arrangement of joint
custody. The Court feels that the Respondent
must be involved in significant decisions
regarding the child’s upbringing. The
circumstances surrounding the Petitioner’s
departure of her previous employer together
with her financial irresponsibility dictate
that she not be the sole decision maker on
issues of significance concerning the child’s
upbringing. The regular hours of the
Petitioner compared to the call out situation
of the Respondent dictate that physical
custody should be with the Petitioner.
On February 8, 2000, the father filed a motion to
modify custody, whereby primary custody of the child would have
been changed to the father.
The father’s motion stated that “for
the third time, possibly the fourth, within a twenty-four month
period the [mother] has again uprooted the minor child of this
union from his residency.”
The father claimed the mother “has
also remarried for the second time since the dissolution of the
parties.”
The father stated that he “fears due to the mobile and
transient lifestyle of the [mother] the minor child will suffer
irreparable psychological harm.”
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The father’s motion continued
by generally stating, “[t]he history of this case is one of longstanding nature, wherein several significant events have
occurred, all at the hands of the [mother] which has [sic]
created a terribly disturbing, disruptive lifestyle for the minor
child of this marriage.”
The father claimed that after his son
was relocated for a second time that the child’s teacher
“approached” him and asked “if there was some problem with Kye,
and upon further discussion, the teacher advised that every day
that week Kye had complained with a headache, stomach ache, and
said he needed to call his mother.”
The father alleged that the
teacher “feared that this type of situation would interfere with
Kye’s scholastic abilities.”
The father also claimed the mother
“has created difficulties in taking the child to and picking him
up from sport activities, creating again a very unstable
environment for this child.”
The father also attached to his
motion a letter from the school principal, which showed that Kye
had been absent for four days and tardy for 11 days.
A hearing on the motion to change custody was held
before the Domestic Relations Commissioner on August 10, 2000.
In addition to himself, the father called as witnesses the
child’s school principal, the child’s fourth grade teacher,1 two
neighbors, and Bobby Jean Hardy, the child’s stepmother at the
time of the hearing.
The Commissioner filed a report on
September 1, 2000, which recommended a finding that the father
1
Kye was in the sixth grade at the time of the hearing.
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“had failed to carry his burden of proof to justify a change of
custody under KRS2 403.340”, and that the “child is well off in
the physical custody of the [mother].”3
The Commissioner also
recommended that the father’s motion be found to be “meritless in
fact and law” and that he “be responsible for the [mother’s]
attorney’s fees.”
The father filed objections to the
Commissioner’s report, which were denied by the trial court on
September 13, 2000.
Subsequently, counsel for the mother filed a
motion and affidavit seeking an attorney’s fee of $2,350.00.
The
trial court entered an order on October 9, 2000, awarding an
attorney’s fee of $2,350.00 to attorney George C. Howell.
This
appeal followed.
In his brief, the father set forth three arguments: (1)
whether the trial court abused its discretion in denying a change
of custody; (2) whether the trial court abused its discretion in
2
Kentucky Revised Statutes.
3
Nowhere in the pleadings, orders or briefs do the parties
or the trial court make reference to Scheer v. Zeigler, Ky.App.,
21 S.W.3d 807 (2000). Scheer was a significant en banc decision
of this Court concerning modification of joint custody, which
overruled Benassi v. Havens, Ky.App., 710 S.W.2d 867 (1986), and
Mennemeyer v. Mennemeyer, Ky.App., 887 S.W.2d 555 (1994). Scheer
was rendered by this Court on June 23, 2000, which was during the
time the motion for change of custody in the case sub judice was
being litigated. However, there is no reference to Scheer
anywhere in the record. Regardless, since the father’s motion
was filed within less than two years from the date of the
original custody decree, under KRS 403.340(1) he was required to
show that “[t]he child’s present environment may endanger
seriously his physical, mental, moral, or emotional health.”
This requirement was the same both pre-Scheer and post-Scheer.
See Briggs v. Clemons, Ky.App., 3 S.W.3d 760 (1999), and Scheer,
supra at 809-814.
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awarding an attorney’s fee against the father; and (3) whether
the trial court erred by adopting findings which had been
prepared by the mother’s attorney.
For the father to prevail in
this appeal, he must demonstrate that the trial court’s findings
of fact were clearly erroneous or that the trial court abused its
discretion.
Under CR4 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.”
The findings can be
held to be clearly erroneous only if they were not supported by
substantial evidence.5
Substantial evidence has been defined as
evidence sufficient to induce conviction in the mind of a
reasonable person.6
An abuse of discretion has been defined as
“arbitrary action or capricious disposition under the
circumstances, at least an unreasonable and unfair decision.”7
The findings adopted by the trial court were that the
father failed to meet his burden of demonstrating how “the
child’s present environment may endanger seriously his physical,
mental, moral or emotional health[,]” and that “[t]his child is
well off in the physical custody of the [mother].”
While the
father may be very concerned that the mother moved three to four
4
Kentucky Rules of Civil Procedure.
5
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
6
Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d
298 (1972).
7
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
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times in two years and that she had married twice during this
time, there is substantial evidence in the record to support the
trial court’s findings.
Accordingly, we must affirm.
While the father also takes great exception to the
trial court finding his motion for change of custody “meritless
in fact and law[,]” there is substantial evidence to support such
a finding; and we cannot conclude that the trial court abused its
discretion in awarding an attorney’s fee of $2,350.00.
Trial
courts are given wide discretion in awarding attorney’s fees in
domestic relations cases, and we find no abuse of discretion.8
Finally, the father objects to the Commissioner, and
ultimately, the trial court adopting the findings prepared by the
mother’s attorney.
While this approach has been criticized by
the courts,9 we do not believe that it rises to an abuse of
discretion in this case.
For the foregoing reasons, the orders of the Boyd
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Richard A. Hughes
Ashland, KY
George C. Howell
Ashland, KY
8
Underwood v. Underwood, Ky.App., 836 S.W.2d 439, 444
(1992).
9
Bingham v. Bingham, Ky., 628 S.W.2d 628 (1982).
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