THOMAS K. SPEAKER v. AMY L. SPEAKER
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RENDERED: APRIL 2, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001665-MR
THOMAS K. SPEAKER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 96-FC-001828
v.
AMY L. SPEAKER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BUCKINGHAM AND VANMETER, JUDGES.
EMBERTON, CHIEF JUDGE.
This is an appeal from the Jefferson
Family Court modifying a joint custody decree and awarding sole
custody to the child’s mother, Amy Speaker.
Thomas Speaker
alleges that the court failed to apply the proper legal
standards, make the requisite findings for modification of the
decree and improperly considered irrelevant evidence.
He also
maintains that joint custody did not seriously endanger the
child’s mental or emotional health and that sole custody to Amy
is not in the child’s best interest.
We find no error and
affirm.
Amy and Tom were divorced in March 1996.
Incorporated
into the decree was a child custody and support agreement
pursuant to which the parties were to have joint custody of
their minor child, Austin, with Amy designated as the primary
residential custodian.
Tom was to pay $1,400 per month in child
support and maintain a life insurance policy for Austin’s
benefit.
During the months immediately following the divorce,
Tom did not consistently exercise his visitation with Austin.
When he did resume his visitation schedule, the parties’
relationship became strained and fraught with disagreement over
Austin’s care.
Austin, who has been diagnosed with allergies
and a kidney disease, is required to take daily medication.
Amy
testified that when visiting Tom, Tom failed to give Austin his
medication and that Austin soiled his underwear occasionally and
returned smelling of urine.
She also testified that Tom has a
dog, and during the holiday season a live Christmas tree, to
both of which Austin is allergic.
Austin has been tardy to school.
During Tom’s visitations,
Tom has had various
girlfriends who have spent considerable time at his home and to
whom, Tom admitted, Austin became attached only to have them
disappear from his life.
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On April 28, 1999, Austin, then age five, returned
from his visitation with Tom with black and blue marks on his
buttocks and legs.
On May 1, 1999, Amy took Austin to see Dr.
Deborah Blair, a clinical psychologist, who reported the
incident to Child Protective Services and the Crimes Against
Children Unit.
After it was determined that Austin was at
further risk for abuse, both Tom and Amy were restricted from
using corporal punishment and Tom was ordered to attend anger
management classes.
Tom admitted that he spanked Austin after
he disobeyed and kicked his then girlfriend but denied that he
caused the bruising.
During a visitation in 2000, Tom’s dog bit
Austin requiring stitches and Tom failed to notify Amy of the
incident.
There was evidence that Tom has spanked other
children in Austin’s presence, and to discipline the family dog,
slaps him in the head.
Dr. Edward Berla was appointed by the court as a
custodial evaluator and found that joint custody was not a
viable option and recommended that Amy be awarded sole custody.
Dr. Blair, who continues to treat Austin for behavioral
problems, testified that Austin demonstrates both rage and
depression.
In her opinion, Austin needs the stability offered
by Amy with consistent limits and discipline.
In finding that modification of the decree was
warranted, the court concluded:
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The Court has considered all of the factors
set forth in KRS 403.270(2) and determines
that the child’s present joint custodial
arrangement endangers his mental and
emotional health, that any harm likely to be
caused by modification of custody to sole
custody is outweighed by its advantages to
Austin. It is hoped that the parties’
enduring conflict will be reduced by a clear
understanding that while the parties are to
consult with each other on all major
decision making involving the child, the
final decision in the event of disagreement
will be Petitioner’s. The Court finds that
it is in the best interest of the child that
joint custody be modified to Petitioner’s
sole custody.
The prevailing law applicable to a modification of a
joint custody order is stated in Scheer v. Zeigler:1
We hold that joint 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. (Footnote
omitted.)
Tom concedes that the modification of a joint custody
decree is controlled by KRS 403.340, but argues that the trial
court erroneously applied the 2001 version of the statute
instead of that in effect in June 2000 when Amy filed her motion
for modification for custody.
In comparing the two statutes
there are two notable differences.
The first, and one that has
no bearing on the present case, is that the 2001 version
1
Ky. App., 21 S.W.3d 807, 814 (2000).
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requires a hearing while the earlier statute did not explicitly
state one was required.
A hearing was held in this case and Tom
makes no argument based on this change.
The second, and perhaps
most significant change, is that the earlier version requires
that the court “find” the presence of one of four conditions,
including that:
The child’s present environment endangers
seriously his physical, mental, moral, or
emotional health, and the harm likely to be
caused by a change of environment is
outweighed by its advantages to him.2
The 2001 version, while listing the identical circumstances in
addition to others, lists them as considerations as opposed to
mandated findings.
Thus, Tom argues, modification of custody
under the 2001 statute is easier to obtain than it is under the
2000 statute.
There is no need to discuss the legal soundness
of Tom’s assertion.
The family court made specific findings
that the joint custodial arrangement endangers Austin’s mental
and emotional health and it is in Austin’s best interest to
award Amy sole custody.
The findings would support a
modification under either statute.
Tom contends that the court was required to find that
joint custody “seriously” endangers Austin’s emotional and
mental health.
Although he asserts that the court’s omission of
the term “seriously” requires reversal, he did not make a
2
KRS 403.340(2)(c).
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request for more definite findings of fact pursuant to CR3 52.04.
Additionally, there is ample evidence in the record to support a
finding that Austin’s mental and emotional health are seriously
endangered by Tom’s violent temper, frequent relationships and
their abrupt termination, and his failure to provide for
Austin’s physical and daily needs.
We find no reversible error
in the omission of the term “seriously” in the court’s extensive
findings.
Finally, Tom argues that much of the evidence
considered by the court was irrelevant including an incident
when, prior to the parties’ divorce, he physically assaulted
Amy.
Although KRS4 403.340(2) states that findings must be based
on facts that “have arisen since the prior decree,” it further
states “or that were unknown to the court at the time of the
entry of the prior decree.”
Tom’s violent act was not known nor
could it have been known at the time of the entry of the decree
that incorporated the parties’ agreement.
The remaining
contentions made by Tom regarding the relevancy of the evidence
are without merit.
Guided by our rules of evidence, any
evidence tending to establish the physical, emotional, or mental
effect of a custody arrangement is relevant to aid the court in
3
Kentucky Rules of Civil Procedure.
4
Kentucky Revised Statutes.
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making what is often a difficult decision and ultimately
conclude what is in the best interest of the child.
After review of the record and in accordance with KRS
403.340, we find that the family court did not abuse its
discretion.5
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David B. Mour
Jeffrey A. Cross
BOROWITZ & GOLDSMITH, PLC
Louisville, Kentucky
Terry W. Holloway
Ashley Holloway Frank
FOLEY, BRYANT & HOLLOWAY
Louisville, Kentucky
5
Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974).
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