ANGELA F. GIBSON (now BOOTS) v. MICHAEL C. ARNOLD
Annotate this Case
Download PDF
RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001408-MR
ANGELA F. GIBSON (now BOOTS)
v.
APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
CIVIL ACTION NO. 99-CI-00021
MICHAEL C. ARNOLD
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, Chief Judge; DYCHE and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Angela F. Gibson (now Boots) appeals from a
Meade Circuit Court order implicitly overruling her exceptions to
the report of the court’s domestic relations commissioner (DRC) and
adopting his recommendation that Michael C. Arnold be granted
custody of the parties’ two daughters.
Angela and Michael, who were never married, are the
parents of Megan Nicole Arnold, born April 30, 1994, and Michelle
Lynn Arnold, born December 15, 1995.
On January 28, 1999, Angela
filed a petition seeking custody of the children.
Subsequently,
Angela and Michael agreed to share joint custody of the children
with Angela designated as the primary residential custodian and
Michael having standard visitation pursuant to the circuit court’s
guidelines.
The action came before a DRC for a final hearing on
April 8, 1999.
In a report filed on April 29, 1999, the DRC
approved this arrangement, and the circuit court adopted the DRC’s
recommendation in an order entered on October 12, 1999.
Upon
learning
that
Angela
planned
to
relocate
to
California, Michael filed a verified motion for custody of the
children.
matter.
On June 26, 2000, the DRC conducted a hearing on the
During the pendency of this action, Scheer v. Zeigler1 was
decided by this Court.
In light of Scheer, the circuit court
granted Michael leave to file two affidavits in support of his
motion to modify the custody decree pursuant to Kentucky Revised
1
Ky. App., 21 S.W.3d 807 (2000).
Having reviewed and outlined the history of joint custody
in Kentucky courts, we concluded that the approach of Benassi v.
Havens, Ky. App., 710 S.W.2d 867 (1986), to joint custody was
flawed and that it led to the improper threshold requirement of
Mennemeyer v. Mennemeyer, Ky. App., 887 S.W.2d 555 (1994).
We
overruled both cases.
Id. at 811.
In so doing, we held as
follows:
. . .[J]oint custody is an award of custody which is
subject to the custody modification statutes set forth in
KRS 403.340 and KRS 403.350 and that there is no
threshold requirement for modifying joint custody other
than such requirements as may be imposed by the statutes.
Our holding today in no way alters or destroys the
ability of courts to modify joint custody in situations
where the parties are unable to cooperate. Although this
court first delineated this authority in Chalupa [v.
Chalupa, Ky. App. 830 S.W.2d 391 (1992)] without
statutory support, we nonetheless find statutory support
by interpreting KRS 403.340(2) (c) and KRS 403.340(3) to
cover this situation.
Id. at 814.
-2-
Statutes (KRS) 403.340(1),2 ultimately granting him a new hearing
based on those affidavits.
However, a new hearing was never held
as “the [DRC] was left to determine the facts based upon the
hearings previously held, both sides stipulating that he was to
avail himself of the facts already introduced in this action.”
Citing Scheer and “considering the recent amendment to
KRS 403.340,”3 the DRC, in a report issued on May 23, 2001, found
that “it would be in the best interests of the children to have
them restored to the condition that existed prior to their removal
to California by their mother” and recommended that custody be
awarded to Michael.
Angela filed objections4 to the DRC’s report
2
Although KRS 403.340(1) is now subsection (2), it is
substantively unchanged and provides as follows:
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.
3
As observed by this Court in Scheer: “The Benassi court
reasoned that KRS 403.340 and KRS 403.350 related only to
modification of sole custody awards.
Id. at 869.
We can only
surmise that its interpretation is founded upon the statute’s use
of the singular term “custodian.” KRS 403.340.” Id. at 812.
Resolving this ambiguity, KRS 403.340(1) was subsequently
amended and now provides as follows: “As used in this section,
“custody” means sole or joint custody, whether ordered by a court
or agreed to by the parties.”
4
In the instant case and commonly throughout this
jurisdiction, the term “exception” or some variation thereof is
used to describe the procedure by which a party obtains trial court
review of the report of a DRC pursuant to Ky. R. Civ. Proc. (CR)
53.06.
In actuality, CR 53.06 does not contain the term
(continued...)
-3-
to which Michael responded.
Having “reviewed the [m]emoranda of
the parties, the cases cited therein, the record of proceedings and
the applicable statutes,” the circuit court adopted the report of
the DRC in an order entered on June 25, 2001, with a visitation
schedule for Angela to either be agreed upon by the parties or
determined by the court after a hearing upon motion by either
party.
Arguing that the circuit court erred in modifying the
custody decree, Angela appeals from that order.
With the exception of the aforementioned affidavits,
however, the record on appeal was initially devoid of evidence. In
addition, both parties filed briefs which failed to comply with
Kentucky Rules of Civil Procedure (CR) 76.12.
Because this case
involves an issue of utmost importance, the custody of two little
girls, we were unwilling to invoke the penalties available in the
event of such deficiencies set forth in CR 76.12(8), opting instead
to issue an order requiring Angela to designate as a part of the
record on appeal either video recordings or transcripts of all
hearings held before the DRC or the court subsequent to December 2,
1999, within ten days following entry of the order.
We further
ordered Angela to file a supplemental brief in compliance with CR
76.12 (4)(c)(iv) within 15 days following the designation of the
record.
fully
Likewise, we ordered Michael to file a supplemental brief
complying
thereafter.
with
CR
76.12
(4)(d)(iii)
within
15
days
As we are now in possession of the video recording of
4
(...continued)
“exception” but rather speaks of “objections.”
To maintain
consistency with the rule, we will use the term “objection”
throughout this opinion.
-4-
the
hearing
held
supplemental
Unfortunately,
before
briefs,
the
the
however,
DRC
case
the
on
is
June
now
26,
ripe
supplemental
2000,
for
briefs
and
the
decision.
are
of
no
assistance.5
Likewise, the DRC’s report, set forth below in its
entirety, can only be categorized as inadequate:
The [DRC] has been requested to revisit this
action in light of recent developments in the law,
specifically rendering of the decision in Scheer v.
Zeigler, [] and, also, considering the recent amendment
to KRS 403.340.
The
Courts
are
now
to
consider
the
best
interest of a child in modifying custody.
The [DRC] was left to determine the facts based
upon the hearings previously held, both sides stipulating
that
he
was
to
avail
himself
of
the
facts
already
introduced in this action.
The [DRC] finds that the children were removed
from an integrated environment without sufficient cause.
They were close to both sides of their families, both
5
To begin with, neither supplemental brief contains the
proper heading, Angela’s being referred to as a “supplemental
statement of appeal” and Michael’s being entitled a “supplemental
counter-statement of the case,” indicating a lack of understanding
of and/or attention to the order issued by this Court. Further
indication of this inattention is the length and content of the
supplemental briefs — they are two pages and one page in length,
respectively, and contain no additional detail or insight to aid in
“an understanding of the issues presented by the appeal,” merely a
brief, repetitive summary of the information already provided which
is accompanied by references to the video recording of the hearing
designated as part of the record pursuant to our instructions.
-5-
paternal and maternal, resident in or near Meade County,
and were removed across the continent by their mother
following her paramour.
There
was
evidence
that
the
paramour
of
[Angela], who is ex-military, exercised strict discipline
of the children, including corporal punishment for slight
infractions.
There was also evidence that Megan had not been
treated in a timely fashion for an injury to her leg.
There was evidence that the children were close
to their father and his family, which cannot now be
sustained
by
the
distance
between
the
separate
residences.
The [DRC] finds and reports to the Court there
exists
sufficient
facts
to
indicate
that
serious
endangerment was present to support a modification of
custody.
He further goes on to find, pursuant to the
amendment, that it would be in the best interests of the
children to have them restored to the condition that
existed prior to their removal to California by their
mother.
The [DRC], therefore, recommends that [Michael]
be granted custody of the two children of the parties.
Noticeably lacking from the DRC’s report are factual
findings to support his recommendation; “There was evidence . . .”
is a conclusory statement, as is “there exists sufficient facts”
-6-
absent further elaboration.
As the evidence at the hearing before
the DRC included testimony from Angela, Michael, Michael’s mother,
Angela’s fiancé (now husband) and Megan, the DRC presumably found
Megan’s version of the events in question, i.e., frequency and
severity of the “strict discipline” allegedly administered by her
stepfather,
more
credible
than
the
account
offered
stepfather given the DRC’s ultimate conclusion.6
by
her
However, we
cannot fulfill our obligation to conduct a meaningful review based
on inference and conjecture, nor are we comfortable attempting to
make a decision of such magnitude without sufficient information.
Pursuant to CR 52.01,
“to the extent that the court
adopts them,” the findings of a commissioner “shall be considered
as the findings of the court.”
Our standard of review in this
context is well established. “Since this case was tried before the
court without a jury, its factual findings ‘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.’”7 If a factual finding is supported by substantial
evidence, it is not clearly erroneous.8
“Substantial evidence is
evidence of substance and relevant consequence sufficient to induce
conviction in the minds of reasonable people.
‘It is within the
6
While the DRC mentions an alleged delay in seeking
treatment for Megan’s leg injury, suffice it to say that this issue
was not determinative and, in any event, the record reveals that
the issue lacks merit as reflected by its omission from Michael’s
brief.
7
Cole
v.
Gilvin,
(2001)(emphasis supplied).
8
Ky.
Id. at 472-473.
-7-
App.,
59
S.W.3d 468, 472
province
of
the
fact-finder
to
determine
the
credibility
of
witnesses and the weight to be given the evidence.’”9
More specifically, the Supreme Court has described the
respective roles of the circuit court and the DRC as follows:
A great many circuit courts in Kentucky make use of
[DRCs].
The rules relating to such commissioners are
found in CR 53.03-53.06, inclusive. Of significance here
is
CR
53.06
commissioner.
which
relates
to
the
report
of
the
Subsection (2) of CR 53.06 provides that
within ten days after notice of the filing of the report,
any party may serve written objections and have a hearing
thereon before the circuit court.
With respect to the
report, the court may adopt, modify or reject it, in
whole or in part, and may receive further evidence or may
recommit it with instructions.
In sum, the trial court
has the broadest possible discretion with respect to the
use it makes of reports of [DRCs].10
A trial court is entitled to reevaluate the evidence and
reach a different conclusion than the DRC.
“While actions before
the court without intervention of a jury are governed by CR 52, et
seq., it seems apparent that on matters referred to a commissioner
pursuant to CR 53.03, the specific provisions of the rules relating
to commissioners prevail.”11
Our function, then, is to ascertain
9
Id. at 473.
10
Eiland v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997).
11
Id.
-8-
whether there is substantial evidence to support the circuit
court’s factual findings and determine whether the court abused its
discretion in finding that the custody decree at issue should be
modified so as to grant custody of Megan and Michelle to Michael.
It stands to reason that we cannot determine whether
there is substantial evidence to support factual findings that are
nonexistent.
In accordance with KRS 403.340(3):
. . . the court shall not modify a prior
custody decree unless after hearing 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.12
In making this determination, the court must consider
certain criteria which, in relevant part, includes: “The factors
set forth in KRS 403.270(2)[13] to determine the best interests of
12
Emphasis supplied.
13
The relevant factors include:
(a) The wishes of the child’s parent or parents, and any
de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child
with his parent or parents, his siblings, and any other
person who may significantly affect the child’s best
interests;
(d) The child’s adjustment to his home, school, and
community;
(e) The mental and physical health of all individuals
involved;
(continued...)
-9-
the
child;
Whether
the
child’s
present
environment
endangers
seriously his physical, mental, moral, or emotional health;” and
“Whether the harm likely to be caused by a change of environment is
outweighed by its advantages to him[.]”14
Although the DRC references the “best interests” standard
and finds that “serious endangerment was present to support a
modification of custody” in his report and the circuit court may
very well have considered these statutorily mandated factors in
modifying the decree, in the absence of factual findings, we are
unable
to
make
that
determination
on
the
record
before
us.
Accordingly, we are compelled to vacate the circuit court’s order
and remand with instructions that the court make specific factual
findings and apply the statutory factors in determining whether a
change in custody is in the best interests of Megan and Michelle.
In so doing, the circuit court must also consider whether
their
current
environment
seriously
endangers
their
physical,
mental, moral or emotional health and whether the harm caused by
such a drastic change would be outweighed by its advantages and
13
14
(...continued)
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the
child with a de facto custodian; and
(i) The circumstances under which the child was placed or
allowed to remain in the custody of a de facto custodian,
including whether the parent now seeking custody was
previously prevented from doing so as a result of
domestic violence as defined in KRS 403.720 and whether
the child was placed with a de facto custodian to allow
the parent now seeking custody to seek employment, work,
or attend school.
KRS 403.340(c)(d)(e).
-10-
explain the reasoning behind its conclusion.
In our estimation,
the pivotal issue and only legitimate basis for modifying custody
on
the
current
facts
(of
which
we
are
aware),
given
the
intentionally high threshold, concerns the nature of discipline
administered by the children’s stepfather, i.e., does it rise to
the level of “serious endangerment?”
As is often the case with the
kind of allegations being made here, the evidence consists of
conflicting testimony with inherent reliability issues.
In other
words, this case presents exactly the type of situation which the
Cabinet for Families and Children is uniquely equipped to evaluate
and we strongly encourage the circuit court to enlist its services
in resolving the instant controversy for the benefit of everyone
involved
rather
than
relying
solely
on
evidence
that
is
inconclusive. Hopefully, employing such measures, while having the
undesirable side-effect of further delaying the process, will
enable those charged with the responsibility of determining whether
such a life-altering change is warranted to truly serve Megan and
Michelle’s “best interests.”
To that end, the circuit court’s order is vacated and
this case is remanded to Meade Circuit Court with directions to
conduct further proceedings consistent with this opinion in the
expeditious and thorough manner this case demands.
EMBERTON, Chief Judge, CONCURS.
DYCHE, Judge, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark T. Scott
Brandenburg, Kentucky
Phyllis K. Lonneman
LONNEMAN & ASSOCIATES, PLLC
Elizabethtown, Kentucky
-11-
-12-
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.
