ALSHIELDA BROWN v. DON JENKINS
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October 24, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002571-MR
ALSHIELDA BROWN
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 01-CI-03207
v.
DON JENKINS
APPELLEE
OPINION
AFFIRMING
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BEFORE:
DYCHE, GUIDUGLI, AND McANULTY, JUDGES.
McANULTY, JUDGE:
This is a child custody case in which
Alshielda Brown (Alshielda) appeals from the Fayette Circuit
Court’s order awarding sole custody of Alshielda’s minor child,
Alfonzo Jenkins (Alfonzo), to Don Jenkins (Don), Alfonzo’s
natural father.
Because we conclude that the trial court did
not abuse its discretion in awarding sole custody, we affirm.
Alshielda gave birth to Alfonzo on January 24, 1994.
At the time, Alshielda was unmarried, and Don was married to his
current wife, Nancy Jenkins.
Don and Nancy Jenkins have been
married since February 17, 1990, and have three children, ages
13, 11 and 8.
After Alfonzo’s birth, Don had visitation with Alfonzo
beginning at age two weeks and continuing every weekend.
Paternity was established in Fayette Circuit Court when Alfonzo
was seven months old.
Alfonzo had significant behavior problems as a
kindergartner (the 1999-2000 school year).
Specifically,
Alfonzo would become defiant toward his teachers, would throw
tantrums during which he would sometimes hit and would throw or
push furniture around.
During the kindergarten school year,
Alshielda asked Don to help her and the school in controlling
Alfonzo’s behavior.
In July 2000, Alshielda and Don discussed Alfonzo’s
progress and decided to try having Alfonzo stay with Don during
Alfonzo’s first grade school year.
elementary schools.
As a result, Alfonzo changed
At the new school, Alfonzo’s tantrums and
outbursts still occurred, although they became less frequent and
less severe.
In July 2001, Alfonzo returned to live with
Alshielda.
This case began in August, 2001, when Don filed a
petition for sole custody of Alfonzo.
In addition, Don filed a
motion for an order awarding him temporary sole custody of
Alfonzo, which the trial court granted on September 7, 2001.
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Moreover, the trial court ordered a custodial evaluation of both
parties’ homes.
On September 10, 2001, Don filed a motion to set
visitation and to stop child support.
On September 17, 2001,
the trial court set Alshielda’s visitation for each Friday after
school until 9:00 a.m. on Sunday and each Tuesday after school
until 8:00 p.m.
Moreover, the trial court granted Don’s request
to discontinue his child support obligation.
Alshielda filed a
motion to reconsider the trial court’s order awarding temporary
sole custody to Don.
The trial court conducted a hearing on the
motion, but ultimately denied Alshielda’s request.
Trial was held on October 28 and 29, 2002.
Additional
facts established at trial will be developed later in this
opinion.
Thereafter, the trial court awarded sole custody of
Alfonzo to Don, concluding that
“[b]oth parents are loving and caring parents for
this child. This Court is faced with the issue
of determining the most appropriate primary
custodian for this child who would allow as much
contact as possible with the noncustodial parent.
Considering all the relevant factors under KRS
403.270(2), the Court finds that it is in the
best interest of this child that the
Petitioner/Father have sole custody of Alfonzo
with regularly scheduled time sharing with the
Respondent/Mother.”
In addition to the custody determination, the trial
court also established a timeshare arrangement and ordered
Alshielda not to take Alfonzo to Race Street, a high crime area
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in Fayette County, when she has visitation with him.
Finally,
the trial court ordered Alshielda to pay child support.
In support of the trial court’s conclusions, it found
as follows:
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Alfonzo Jenkins, age eight, born January 24,
1994, is the child of the Petitioner Don
Jenkins (Father) and Respondent Alshielda
Brown (Mother).
The parties were never married to each other,
but had a relationship for approximately nine
(9) years beginning in 1992.
Alfonzo lived with Mother from his birth
until July 2000.
Father had visitation with Alfonzo starting
at age two weeks and then began overnight
visitation when the child was ten months old.
In kindergarten, Alfonzo began exhibiting
serious behavioral problems described as
throwing tantrums, knocking over and throwing
chairs and fighting with his teacher(s).
In July 2000, after kindergarten ended, the
Respondent/Mother suggested that Alfonzo live
with the Father and go to school from the
Father’s home.
From July 2000 until the end of the 2000-2001
school year, Alfonzo lived with his Father
and his Father’s family and became integrated
into the Father’s family.
The Father continued to pay child support to
the Mother for the first year that Alfonzo
lived in his home.
Alfonzo then lived with his Father from
September 7, 2001, until the present time.
The Father has not requested child support
from the Mother, and none has been ordered.
Alfonzo has continued to exhibit behavioral
problems in school since kindergarten but it
is clear that the incidences have decreased
in frequency, intensity and seriousness.
Aflonzo has a good relationship with his
step-mother Nancy Jenkins and with his halfsisters.
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14. Alfonzo loves his Mother and his Father and
is comfortable in both homes.
15. Father and step-mother do not work outside
the home. They are supported by the income
produced from assets purchased with stepmother’s inheritance.
16. The Mother does not work outside the home and
receives government housing, subsidies and
financial aid from her grandmother.
17. Mother has some difficulty setting boundaries
for Alfonzo and has not followed the advice
of removing his TV, VCR and Nintendo from his
bedroom while he was in kindergarten. From
the testimony, this Court believes it is
clear that Alfonzo has not been properly
supervised by the Mother and has been found
further away from home than would be safe and
appropriate for his age.
17. The Mother has a prior felony record that
occurred prior to his birth and which was not
reported truthfully to the evaluator in this
case. She has a number of friends, many of
whom have criminal records, and she has
allowed them to babysit, transport and have
significant contact with Alfonzo. She has
allowed Alfonzo to be on Race Street which is
inappropriate.
Alshielda raises several issues on appeal.
First,
Alshielda argues that the trial court erred in considering
misconduct on the part of Alshielda without finding that such
misconduct was likely to adversely affect Alfonzo.
Second,
Alshielda argues that the trial court should have awarded joint
custody because it found that both parents were loving and
caring parents for Alfonzo, but made no finding that Don and
Alshielda were unable to cooperate concerning Alfonzo.
Third,
Alshielda argues that the trial court’s findings of fact were
clearly erroneous.
Finally, Alshielda argues that the trial
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court erred in using Alshielda’s residence in government housing
against her in awarding custody to Don.
The trial court possesses broad discretion in
determining whether joint custody or sole custody serves the
child’s best interest.
765, 768 (1993).
See Squires v. Squires, Ky., 854 S.W.2d
Moreover, “[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.”
CR 52.01.
In accord, our review is limited to
whether the findings of the trial court are clearly erroneous or
whether the trial court abused its discretion in awarding sole
custody to Don.
(1986).
See Carnes v. Carnes, Ky., 704 S.W.2d 207, 208
“[F]indings of fact are clearly erroneous only if there
exists no substantial evidence in the record to support them.”
V.S. v. Commonwealth, Ky. App., 706 S.W.2d 420, 424 (1986).
KRS 403.270 provides:
(2) The court shall determine custody in
accordance with the best interests of the child
and equal consideration shall be given to each
parent and to any de facto custodian. The court
shall consider all relevant factors including:
(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
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individuals involved;
(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.
(3) The court shall not consider conduct of a
proposed custodian that does not affect his
relationship to the child. If domestic violence
and abuse is alleged, the court shall determine
the extent to which the domestic violence and
abuse has affected the child and the child's
relationship to both parents.
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(5) The court may grant joint custody to the
child's parents, or to the child's parents and a
de facto custodian, if it is in the best interest
of the child.
Alshielda argues that the trial court’s findings as to
her 17-year-old prior felony conviction and the criminal records
of her friends were not relevant because there was no evidence
that such conduct affected her relationship with Alfonzo.
In
support, Alshielda cites Moore v. Moore, Ky., 577 S.W.2d 613,
614 (1979), which held that KRS 403.270 requires proof that a
parent’s misconduct affects the relationship of the parent to
the child; otherwise, the misconduct is irrelevant.
However, we
conclude, that Alshielda’s reliance on Moore is misplaced.
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First, in any child custody case, no set of facts and
circumstances will be exactly the same, and the overriding
consideration is the best interest of the child.
Second, in Krug v. Krug, Ky., 647 S.W.2d 790, 791
(1983), the Kentucky Supreme Court granted discretionary review
in order to further address the procedures required by KRS
403.270 and by its earlier decision in Moore.
The question was
“whether a party seeking to show misconduct of a spouse as a
factor in the determination of child custody must first
introduce evidence showing that the alleged misconduct has
adversely affected the child before the proffered evidence may
be admitted or considered by the trial court.”
Id. at 791.
The
Krug court concluded that a court may consider, in its
reasonable discretion, misconduct that either has affected or is
likely to affect the child adversely if permitted to continue.
See id. at 793 (emphasis added).
The Krug court reiterated that a trial judge has broad
discretion in determining what is in the best interest of the
child when it makes a determination as to custody.
Moreover, a
trial court may draw upon its own common sense and experiences
“to reach a reasoned judgment concerning the likelihood that
certain conduct or environment will adversely affect children.”
Id. at 793.
“In other words, a judge is not required to wait
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until the children have already been harmed before he can give
consideration to the conduct causing the harm.”
Id.
In this case, we believe the findings made by the
trial court in reference to Alshielda’s criminal history and the
criminal conduct of her friends that have close contact with
Alfonzo relate to an unwholesome environment.
When read it its
entirety, this finding lists a number of potential influences
and factors that bear currently on Alfonzo’s well-being and
safety as a nine-year old and could likely affect him adversely
as he grows up.
Alshielda’s next argument is that the trial court
should have awarded joint custody because it found that both
Alshielda and Don were loving and caring parents, but made no
finding that they were unable to cooperate in decisions
pertaining to Alfonzo.
An award of joint custody in a proper
case is an option available under KRS 403.270 however its use is
not mandated in any case.
See Squires, 854 S.W.2d at 768.
In
the trial court’s analysis, it must consider all relevant
factors, giving equal consideration to each parent, and
formulate a result which is in the best interest of the child
whose custody is at issue.
at 768.
See KRS 403.270; Squires, 854 S.W.2d
Indeed, a cooperative spirit between the parents is not
even a condition precedent to a determination of joint custody.
See Squires, 854 S.W.2d at 768.
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In this case, while we recognize the significance of
the care and nurturing Alshielda gave to Alfonzo from birth to
age 6, we do not believe that the trial court abused its
discretion in concluding that sole custody in Don was in
Alfonzo’s best interests.
The findings of the trial court
demonstrate that it considered the relevant factors specifically
set out in KRS 403.270 and additional factors pertaining to
these parties.
In reviewing the transcript of evidence, we conclude
that there is substantial evidence to support the court’s
findings.
Alshielda asserts that there is no basis for the
trial court’s findings that are both numbered 17 and which are
set out in their entirety above.
Specifically, Alshielda argues
that there is no evidence that she has some difficulty setting
boundaries for Alfonzo and has not followed the advice of
removing his TV, VCR and Nintendo from his bedroom while he was
in kindergarten.
By her own admission, Alshielda has not
removed Alfonzo’s TV, VCR and play station from his room even
though his kindergarten teacher suggested that she do so.
testimony is as follows:
Q.
A.
Q.
So even though that Mr. Mink and Ms. Finn
suggested back when A.J.[Alfonzo] was in
kindergarten that you, perhaps, take the
television, the VCR out of his room-Uh-huh (affirmative).
--you have not done that, have you?
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Her
A.
Q.
A.
Q.
A.
Because he was removed from my home September
the 7th and he’s not with me during the school
week. So why does it matter? He’s only with
me on weekends. So he can look at TV on
weekends.
But you didn’t take it out in the -- any that
year that he was with you in kindergarten,
did you?
Oh, no.
No. Okay. And-I didn’t take it out. I just wouldn’t let
him look at it. But no, I did not remove it
from the room.
In addition, Alshielda argues that Joanne Rice, the
custodial evaluator, testified that she believed Alshielda had
been truthful to her when asked about any prior felony
convictions.
However, the evidence shows that Alshielda did not
respond truthfully when asked about her prior arrests.
She
informed Ms. Rice that she’d been arrested in 1983 for credit
card theft and that she’d had no arrests since then.
In
actuality, Alshielda was arrested again in 1985 for theft by
unlawful taking.
In conjunction with this charge, she was
subsequently charged with being a persistent felony offender.
Ultimately, she was sentenced to five years in prison, but was
given shock probation after serving six months of incarceration.
Whether or not Ms. Rice believed that Alshielda was lying, the
fact remains that she was not truthful, and the trial court did
not err in concluding the same.
We move to Alshielda’s argument that the trial court
erred in failing to make findings on evidence that was favorable
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to Alshielda.
It seems that Alshielda is essentially arguing
that the trial court’s findings were incomplete.
The trial
court is required to find those facts that are mandated by the
statute.
See Stafford v. Stafford, Ky. App., 618 S.W.2d 578,
580 (1981), overruled on other grounds by Largent v. Largent,
Ky., 643 S.W.2d 261 (1982).
It is not required to make a
finding on all the evidence heard.
Moreover, if Alshielda took
exception with the trial court’s findings, CR 52.04 mandates
that she file an appropriate motion with the trial court to
See Eiland v. Ferrell, Ky., 937 S.W.2d
identify the defect.
713, 716 (1997).
“[F]ailure to bring such an omission to the
attention of the trial court by means of a written request will
be fatal to an appeal.”
Eiland, 937 S.W.2d at 716.
case, Alshielda filed no such motion.
In this
Further, we believe the
trial court’s findings are complete given the factors set out in
KRS 403.270.
Alshielda’s final argument is that the trial court
erred in using Alshielda’s poverty against her.
finding at issue is:
The specific
“The Mother does not work outside the home
and receives government housing, subsidies and financial aid
from her grandmother.”
This finding is supported by substantial
evidence and is one of many factors the trial court considered
in concluding that sole custody in Don was in Alfonzo’s best
interests.
As the trial court’s ultimate objective is the
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welfare of the child, it was not an abuse of discretion for it
to consider the economic circumstances of the parties, so long
as it was not the only circumstance considered in resolving
custody.
See Calhoun v. Calhoun, Ky., 559 S.W.2d 721, 723
(1977) (“Though every effort must be made to exclude or offset
the element of economic disadvantage, it cannot be completely
ignored if the ultimate objective really is welfare of the
child.”).
Because we believe that the trial court’s decision to
award sole custody to Don is amply supported by the evidence of
record and does not, therefore, represent an abuse of
discretion, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda B. Sullivan
Lexington, Kentucky
Lois T. Matl
Lois T. Matl & Associates, PSC
Lexington, Kentucky
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