JACQUILINE FRANCISCO BARNES v. KIRK ANTHONY GARRETT
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RENDERED:
DECEMBER 28, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000404-MR
JACQUILINE FRANCISCO BARNES
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 99-CI-00764
KIRK ANTHONY GARRETT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY, MILLER, AND TACKETT, JUDGES.
McANULTY, JUDGE: This is an appeal to determine the primary
residential custody of the two daughters of Jacquiline Francisco
Barnes (hereinafter appellant) and Kirk Anthony Garrett
(hereinafter appellee).
The parties were never married.
The
Madison Circuit Court awarded them joint custody of the children,
and designated appellee primary residential custodian.
Appellant
argues that the trial court applied the incorrect standard to
this case, as she claims this was a custody modification rather
than an initial custody determination.
In addition, appellant
argues that the trial court's award of custody was contrary to
the evidence before the court.
Finally, she argues that the
trial court relied upon evidence which was not properly before
the court.
Appellant contends that the trial court erred in using
the “best interest of the child” standard in KRS 403.270 because
this was not an initial custody determination, but a modification
of a previous custody order.
In 1993, appellee's paternity of
the children was established in the Madison District Court.
At
the same time, appellee was ordered to pay child support.
Appellant was the custodian of the children, and appellee had
visitation with them.
In 1997, appellee became behind on child
support payments, and the parties returned to district court to
resolve the matter.
the children.
The parties agreed to have joint custody of
The Madison District Court entered an Agreed Order
Holding Child Support in Abeyance and Order Payment on Arrears on
August 19, 1997.
The order stated, in pertinent part:
The parties herein, having agreed to the
terms of child support for the minor children
Brittney Garrett, d.o.b. 6/1/90 and Kember-Le
Garrett, d.o.b. 4/18/93; the parties of the
minor children currently have joint custody
and having, therefore, agreed that child
support payments be suspended and the Court
being duly advised therefrom;
IT IS HEREBY ORDERED AND ADJUDGED AS
FOLLOWS:
1. That current child support payments shall
be held in abeyance for so long as the
parties have joint custody of the minor
children or until further orders of the
Court.
Appellant alleges that this was an award of joint
custody so that when appellee filed his petition for custody and
visitation in this case it should have been treated as a
modification of a custody decree under KRS 403.340.
-2-
KRS
406.051(2) permits a district court to exercise jurisdiction,
concurrent with that of the circuit court, to determine matters
of child custody and visitation in cases where paternity is
established under the Uniform Act on Paternity.
Appellant
contends that the district court exercised this jurisdiction in
her case.
She argues that the result of this is that the circuit
court had to find a serious endangerment to the children, under
KRS 403.340(2), in their present environment, since it had been
less than two years since the district court order.
We disagree.
The statute in question governs the
modification of a “custody decree.”
We do not find that the
district court issued any decree or order awarding custody in
this case.
Rather, the district court's order deals only with
the issue of child support.
The court did not make an award of
custody, but dealt only with the custody arrangement decided upon
by the parties.
Most significantly for our decision, we note
that nowhere in the Agreed Order is there any indication that the
district court employed the factors designated in KRS 403.270 and
the best interest of the child standard to determine custody.
These are requirements under KRS 403.270 when a court is ruling
on custody issues.
Therefore, we find that the trial court was
issuing an order regarding child support while acknowledging the
predetermined custody arrangement of the parties, not issuing a
“custody decree.”
The determination of the Madison Circuit Court below as
to custody issues was an initial custody determination in this
-3-
case.
The Madison Circuit Court's use of the best interests of
the child standard was proper.
Next, appellant argues that even if the trial court
employed the correct standard, the award of custody in this case
was contrary to the evidence.
Appellant did not designate the
videotape of the hearing in this case, and so we are unable to
review the evidence presented to determine whether the award was
supported by the evidence.
See CR 75.01.
Appellant further argues that the trial court failed to
follow the factors in KRS 403.270 in reaching its decision on
custody.
Having reviewed the findings of fact and order in this
case, we believe the trial court considered all of the factors in
the statute in determining its decision on custody.
We do not
find that the trial court concentrated on some factors to the
exclusion of others.
Appellant argues that the trial court improperly
considered the results of her drug test, and that the drug test
results were hearsay and were not properly authenticated at the
hearing in this case.
Without a videotape of the hearing, we are
unable to review these arguments as to the admission of the drug
tests into evidence or even as to the preservation of objections
to this evidence.
Therefore, we find that these arguments were
not preserved for review.
Finally, appellant argues that the trial court erred in
giving appellant's drug use any consideration without a finding
that this misconduct had affected or was likely to affect the
children adversely, citing Krug v. Krug, Ky., 647 S.W.2d 790
-4-
(1983).
We are unable to determine whether appellant objected to
the drug test evidence on this ground without the videotape of
the hearing.
Further, appellant did not make a request for a
finding of fact on this issue.
CR 52.04.
Appellant argues that
KRS 403.270(3) requires a finding of fact as to how appellant's
drug use impacted the parent/child relationship in this case.
Krug stated that the trial court may consider whether misconduct
of a parent is likely to adversely affect the child in the future
if it continues.
Id. at 793.
The court stated in its findings
that appellant's drug usage, and exposure of the children to it,
was of concern to the court.
We believe the trial court
articulated a finding that the drug use of appellant had affected
or would affect the children.
We conclude that the findings of
the trial court were sufficient on this point.
We do not find
any error.
We affirm the Order of the Madison Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tracey E. Burkett
Richmond, Kentucky
Jimmy Dale Williams
Richmond, Kentucky
-5-
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