MARSHA FRANCIS KEATON BYRD v. RONALD KEATON
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RENDERED:
November 22, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000030-MR
MARSHA FRANCIS KEATON BYRD
APPELLANT
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JOHN ROBERT MORGAN, JUDGE
ACTION NO. 97-CI-00182
v.
RONALD KEATON
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BUCKINGHAM, JUDGE: Marsha Francis Keaton Byrd appeals from an
order of the Magoffin Circuit Court transferring the custody of
her son to her ex-husband, Ronald Keaton.
Because we conclude
the trial court abused its discretion in denying Byrd’s motion
for change of venue, we vacate and remand.
Byrd and Keaton were married in December 1993.
On
September 16, 1995, Byrd gave birth to the only child born of the
marriage, a son.
On October 14, 1997, the parties were divorced
by a decree in the Magoffin Circuit Court.
Byrd was awarded sole
custody of the child, and Keaton was awarded visitation rights
pursuant to the agreement of the parties.
Byrd and the child moved to Jefferson County in January
1999.
In January 2000, the child developed a chronic rectal
rash.
Keaton alleged that when he questioned the child about the
condition, the child replied that his cousin, who was
approximately two years older than he, had been putting things in
his rectum.
Keaton claimed that as a result of this revelation,
he took the child to the Highland Regional Medical Center
Emergency Room on February 4, 2000.
Dr. Styer, the emergency
room physician on duty at the medical center, concluded from his
examination of the child that the child was normal.
However, Dr.
Styer indicated that sexual abuse could not be ruled out without
further evaluation and testing.
At the same time, Keaton contacted authorities
concerning the alleged abuse.
As a result, Jerri Conley, a
social worker with the Magoffin County Office of Child Protective
Services, was contacted.
Conley interviewed the child and
Keaton, and she thereafter forwarded a report to the Jefferson
County Office of Child Protective Services.
When Keaton returned the child to Byrd on February 6,
2000, he informed her of the allegations.
Byrd asserted that
when she tried to question the child concerning what he had told
Keaton, he denied the incident ever occurred.
On February 7,
2000, Byrd took the child to Dr. Wendy C. Daly, a pediatrician.
Dr. Daly examined the child and confirmed that he had a rash.
She also indicated that she found no signs of sexual abuse.
Based on Dr. Daly’s recommendation, Byrd took the child to see
Therisa K. Ingram, a licensed clinical social worker.
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In
addition to talking with the child, Ingram also interviewed the
alleged perpetrator.
As a result of her investigation, Ingram
concluded that the child had not been sexually abused.
On February 11, 2000, Keaton filed a motion for change
of custody in the Magoffin Circuit Court.
While this action was
pending, Keaton moved the Magoffin District Court to award him
temporary custody.
Conley, as an employee of Child Protective
Services in Magoffin County, assisted in filing the petition.
The petition was presented to a trial commissioner, and the
commissioner awarded temporary custody of the child to Keaton.
However, the commissioner set aside the temporary custody order
two days later after learning that Keaton had already filed a
petition for change of custody in circuit court, that Dr. Daly
had examined the child and had determined that the child suffered
from a rash, that Ingram had interviewed both the child and the
alleged perpetrator, and that both professionals had ruled out
sexual abuse.
During the short time Keaton had temporary custody of
the child, he took him to a pediatrician in Lexington.
The child
was examined by Dr. Barry Ramsey of Westside Pediatrics on
February 22, 2000.
Keaton informed Dr. Ramsey that he believed
the child had been sexually abused.
Upon completion of his
examination, Dr. Ramsey concluded that the child suffered from a
streptococcal perirectal rash.
Furthermore, Dr. Ramsey indicated
that he found no evidence of sexual abuse.
As these events were occurring, the Jefferson County
Office of Child Protective Services conducted its own
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investigation into the allegations of abuse and neglect.
Crystal
Settles, a social worker employed by that office, was assigned to
investigate the allegations reported by Keaton.
At the close of
her investigation, Settles concluded that the allegations were
unsubstantiated.
On March 8, 2000, Byrd filed a motion for change of
venue from the Magoffin Circuit Court to the Jefferson Circuit
Court.
Byrd argued that the child had closer connections to
Jefferson County than to Magoffin County.
She pointed out that
both she and the child resided in Jefferson County and that
Jefferson County was the location of evidence concerning the
child’s care, education, and relationships.
She further noted
that the child attended day care in Jefferson County and that his
pediatrician was located there.
In addition, Byrd noted that the
neglect and abuse allegedly occurred there.
As a result, the
investigation by Child Protective Services would occur in
Jefferson County, prospective witnesses to the alleged
occurrences were located there, and any evaluation of Byrd’s home
would have to occur in that county.
Keaton countered Byrd’s motion for change of venue by
arguing that Magoffin County had been the couple’s last marital
residence and was the county where the divorce and initial
custody order had been entered.
Further, Keaton argued that not
only was his residence in Magoffin County1 but also the residence
of several of his extended family who would testify.
Keaton also
asserted that Magoffin County was the residence of the emergency
1
Keaton has since moved to Fayette County.
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room doctor (a witness he did not present to the court during the
trial), a state trooper to whom he reported the allegations (also
a witness he failed to present to the court during the trial),
and Jerri Conley (the social worker who conducted the initial
interviews but did not investigate the case).
In an order entered on April 17, 2000, the circuit
court denied Byrd’s motion for change of venue.
The court
concluded that, as the court in which the original divorce decree
was entered, it retained jurisdiction.
As to venue, the court
concluded that “Magoffin Circuit Court is not an inconvenient
forum because Ronald Keaton’s witnesses who reside and/or work in
and around Magoffin County, Kentucky.”
The order made no mention
of the facts raised by Byrd in her motion.
Byrd immediately appealed the court’s order to this
court.
In an opinion rendered on June 1, 2001, a panel of this
court denied relief.
In explaining its reasoning, this court
first pointed out that the order denying the transfer of venue
failed to recite the finality language required by CR2 54.02,
thus making it an interlocutory order not subject to appeal.
Further, this court noted that even if the order had contained
the necessary language, the appeal would be denied as the proper
avenue to challenge a venue decision was through an appeal of the
final judgment.
The panel of this court then remanded the action
to the Magoffin Circuit Court.
In an order entered on August 2, 2001, the court
directed that the case be tried by deposition.
2
Kentucky Rules of Civil Procedure.
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Keaton was
allowed forty-five days to take his evidence, and Byrd was then
allowed forty-five days to take her evidence.
Keaton was also
allowed an additional fifteen days to take rebuttal evidence.
The taking of proof did not go smoothly, and on October 8, 2001,
Keaton filed a motion seeking a protective order concerning
Byrd’s scheduling of further depositions.
The court resolved the
dispute by canceling all of Byrd’s remaining depositions (except
that of Dr. Daly) and instructing her to reschedule the remaining
depositions so as to conduct them all on a single day.
As a part
of this order, the court granted Byrd an additional thirty days
to take her proof.
On January 4, 2002, the trial court entered an order
modifying the prior custody award and changing custody from Byrd
to Keaton.
The court stated in pertinent part as follows:
This court finds based on factors outlined
above that there has been a change in the
circumstances of the child and the custodian,
Marsha Keaton Byrd, and that Walker Keaton’s
present environment in the custody of Marsha
Keaton Byrd endangers seriously his physical,
mental and emotional health and the harm
likely to be caused by a change of
environment, that is change of custody
granting Ronald Keaton custody of Walker
Keaton is outweighed by its advantages to
Walker Keaton.
It is from that order that Byrd appeals.
Byrd has raised numerous arguments in her brief.
We
conclude that two of these arguments have merit and mandate that
the order be vacated and remanded.
We decline to address the
remainder of her arguments because it is unnecessary to do so.
The parties have properly framed the main issue in this
case as one of venue rather than jurisdiction.
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As the Kentucky
Supreme Court stated in Pettit v. Raikes, Ky., 858 S.W.2d 171,
172 (1993), “[w]hen the custody dispute is wholly intrastate, the
issue is not jurisdiction, it is venue.
In such circumstances,
any circuit court in Kentucky possesses jurisdiction to decide
the case; the only question is which of Kentucky’s 120 circuit
courts is the appropriate venue.”
As we examine the venue issue,
we will not disturb the trial court’s determination that venue
was properly in the Magoffin Circuit Court “absent an abuse of
discretion.”
Lancaster v. Lancaster, Ky. App., 738 S.W.2d 116,
117 (1987).
In the Pettit case our supreme court stated that
“[h]aving determined that the issue is venue and not
jurisdiction, this Court’s decision in Shumaker v. Paxton, Ky.,
613 S.W.2d 130 (1981), controls the outcome.”
at 172.
Pettit, 858 S.W.2d
Under the authority of the Shumaker case as well as
other pertinent Kentucky cases, we conclude that the trial court
abused its discretion in not granting Byrd’s motion for change of
venue.
In the Shumaker case McCracken County was held to be
the county of proper venue in a custody modification case where
the father, mother, and children all lived in that county, even
though the parties were divorced and custody was originally
awarded in Union County.
613 S.W.2d at 132.
Our supreme court
noted that Kentucky’s no-fault divorce law and the Uniform Child
Custody Jurisdiction Act (UCCJA) (KRS 403.400-.460) “have to a
great extent eroded the doctrine of continuing exclusive
jurisdiction.”
Id. at 131.
Further, the court viewed the UCCJA
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“as affording some direction and guidance for the proper forum in
which to maintain an action such as we have here.”
Id. at 132.
The court found “convincing” reasons for McCracken County
assuming venue to be the fact that the parties and the children
resided in McCracken County for at least the preceding two years
prior to the filing of the modification motion, that evidence
could probably be best produced by witnesses who resided in
McCracken County, that the Department of Human Resources would be
required to make a report on the parties’ homes which would
involve witnesses in McCracken County, and that McCracken County
was the forum most convenient for the parties.
Id.
Citing the Shumaker case, this court, in Hummeldorf v.
Hummeldorf, Ky. App., 616 S.W.2d 794 (1981), stated that the
county of the parties’ marital residence prior to separation, the
usual residence of the children, and the accessibility of
witnesses and the economy of offering proof would be relevant
factors in custody modification cases.
Id. at 798.
In Fitch v.
Burns, Ky., 782 S.W.2d 618 (1989), our supreme court held that
the UCCJA “sheds light by analogy on the present problem by
reason of certain policy considerations stated therein.”
621.
Id. at
The court specifically noted the provisions of KRS 403.400,
which state several general purposes of the UCCJA, including to
assure that custody litigation takes place where the child and
family have the closest connection and “where significant
evidence concerning his care, protection, training, and personal
relationships is most readily available.”
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KRS 403.400(1)(c).
Ash v. Thompkins, Ky. App., 914 S.W.2d 788 (1996), is
also very pertinent to the facts and resolution of this case.
In
that case the Barren Circuit Court determined that it was the
county of proper venue based on the fact that the father of the
child resided there.
After the circuit court granted the
father’s custody modification motion, this court reversed the
judgment and held that Hart County rather than Barren County was
the county of proper venue.
Id. at 789-90.
The court relied on
the facts that the child and mother resided in Hart County, the
child’s paternity had been determined in that county, and all the
child’s significant contacts (including the location of the
child’s pediatrician) were in that county.
The court stressed
the fact that Hart County was the county of the child’s permanent
residence.
Id. at 790.
Considering the aforementioned authority and the
provisions of the UCCJA, we conclude that the trial court abused
its discretion in not granting Byrd’s motion for change of venue.
As we have noted, the basis for the trial court’s decision was
that the original decree had been entered in the Magoffin Circuit
Court and that the court was “not an inconvenient forum because
Ronald Keaton’s witnesses who reside and/or work in and around
Magoffin County, Kentucky.”
These reasons overlook the
significant and compelling reasons why Jefferson County was the
proper venue for the case.
Both Byrd and her child reside in
Jefferson County, and evidence of his care, protection, training,
and personal relationships is most readily available there.
The
child’s pediatrician and daycare center are located in Jefferson
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County.
Jefferson County is also the location of the therapist
that examined the child and the alleged perpetrator.
The alleged
actions which precipitated Keaton’s motion occurred in Jefferson
County, and the Child Protective Services office in Jefferson
County was charged with conducting the investigation into the
allegations.
That office also did an evaluation of the child’s
home in Jefferson County.
Under these circumstances, the trial
court abused its discretion in denying Byrd’s motion.
Byrd’s argument regarding a statement made by the trial
court in its order also raises concerns.
In the order granting
Keaton’s modification motion, the trial court stated that Byrd
had relied on testimony from Dr. Daly, the pediatrician who
examined the child shortly after the allegations came to light,
and Crystal Settles, the social worker who conducted the
investigation into the allegations.
The problem with this
statement by the trial court was that this evidence was not in
the record when the trial court rendered its decision and was not
submitted by Byrd until January 16, 2002, more than two weeks
after the court’s ruling.
Byrd asserts that the trial court either obtained the
transcripts of the video depositions of the witnesses by
prohibited ex parte communication or else did not consider the
evidence despite having made reference to it.
On the other hand,
Keaton responds that Byrd should have brought this issue to the
attention of the trial judge on a motion to set aside, alter, or
amend the court’s findings and that “[o]nly the Trial Judge can
explain his findings of fact.”
Further, Keaton asserts that Byrd
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should have filed the evidence prior to the court’s final order.3
Keaton offers no explanation as to how the trial court came to
learn of this evidence or whether the trial court actually
considered it.
We have concerns as to how the trial court came to
consider and reject evidence by Byrd that had not yet been placed
in the record.
Furthermore, the trial court apparently ruled on
the issue without considering the very relevant testimony of Dr.
Daly and Crystal Settles.
In short, we believe the order should
be vacated for this additional reason.
The order of the Magoffin Circuit Court is vacated, and
the matter is remanded for the entry of an order granting a
change of venue to Jefferson County.
BARBER, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
John T. Byrd
Louisville, Kentucky
John C. Collins
Salyersville, Kentucky
3
The court’s order of August 2, 2001, set deadlines for
taking proof. It did not, however, set a deadline for submitting
the proof (for example, transcribed testimony from depositions).
Furthermore, the court entered the order changing custody without
giving the parties notice or any opportunity to argue their
respective cases either orally or in writing. In fact, Keaton
himself placed his supplemental deposition testimony and
testimony from his present wife into the record after the custody
order had been entered.
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