HUGH BRENT WELLS v. GLENDA S. SINGLETON
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RENDERED: APRIL 23, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002513-MR
HUGH BRENT WELLS
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 01-CI-00113
v.
GLENDA S. SINGLETON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MINTON, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Hugh Brent Wells (“Wells”) appeals from an
order of the Casey Circuit Court, entered November 6, 2002,
which denied his motion to modify custody of the parties’ minor
child.
After thoroughly reviewing the record, the arguments
presented by the parties and the applicable law, we affirm.
Wells and Glenda S. Singleton (“Singleton”) lived
together as an unmarried couple in Casey County, Kentucky, for
approximately 13 years.
This period of cohabitation produced a
son, Lincoln Brent Wells (“Brent”), who was born on March 5,
1989.
After an incident of domestic violence in 2001, Wells and
Singleton separated.
On June 6, 2001, Singleton filed a
petition with the trial court to obtain sole custody of Brent.
On August 13, 2001, the Casey Circuit Court entered an order
granting sole custody of Brent to Singleton.
In its findings of
fact, the trial court was troubled by Singleton’s testimony
concerning Wells’ use of alcohol and the potential consequences
that it may have on Brent.
Moreover, the trial court believed
Wells unduly influenced Brent’s testimony in an effort to
convince the court that it should enter an order granting the
parties joint custody of Brent.
Wells appealed this judgment.
This Court affirmed the trial court’s decision to grant sole
custody of Brent to Singleton in an unpublished opinion rendered
November 27, 2002.
Wells v. Singleton, 2001-CA-002242-MR.
On July 9, 2002, Wells filed a motion, with supporting
affidavits, to modify the trial court’s August 13, 2001 custody
order.
In his motion, Wells alleged Brent’s physical, mental
and emotional health had deteriorated while in Singleton’s
custody.
According to Wells’ motion, Brent had threatened to
harm himself, threatened to run away from Singleton’s home,
solicited others to murder Singleton and informed others of his
unhappiness in Singleton’s home.
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The trial court conducted hearings on Wells’ motion on
August 1, 2002 and August 7, 2002.
During these hearings, Wells
called 14 witnesses to testify concerning his allegations.
Dr.
David Feinberg, a clinical psychologist, testified that Brent
appeared to be angry about his current custody arrangement, that
his relationship with Singleton was deteriorating and that Brent
desired to live with Wells.
However, Dr. Feinberg noted that
Brent was diagnosed with attention deficit hyperactivity
disorder (ADHD), did not handle anger very well and was naïve.
Dr. Feinberg believed that Brent identified himself with Wells,
wanted to be just like Wells and, as such, adopted Wells’
beliefs.
Thus, Dr. Feinberg noted that Brent was easily
influenced by his father.
The remaining witnesses Wells called
to testify, however, provided no information to support Wells’
belief that Brent’s physical, emotional or mental health was
seriously endangered while in Singleton’s custody.
Singleton introduced evidence during these hearings
that Wells had entered a guilty plea in Jessamine District Court
to a charge of driving under the influence of alcohol (“DUI”) on
May 21, 2002.
Singleton also produced evidence that Wells had
been arrested on January 13, 2002 in Fayette County and on July
19, 2002 in Casey County for the same offense.
Lexington Police
Officer Clay Combs testified concerning the January 13, 2002
incident.
Officer Combs testified that he observed an unlocked,
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unattended vehicle running in a convenience store parking lot
near Interstate 75.
Officer Combs entered the convenience store
to speak with the vehicle’s operator about this conduct.
Upon
entering the convenience store, Officer Combs observed that
Wells, who was standing at the front of the store near the
checkout counter, immediately went to the back of the store.
Officer Combs stated that Wells waited in the back of the store
for approximately 15 minutes before returning to the checkout
counter.
Upon Wells’ return to the front of the store, Officer
Combs began to suspect that Wells was under the influence of
alcohol.
Upon questioning, Wells admitted to Officer Combs that
he had driven the running vehicle to the convenience store.
Officer Combs then conducted several field sobriety tests on
Wells, all of which Wells failed.
arrested Wells for DUI.
At this point, Officer Combs
Officer Combs noted that no other
individuals were with Wells at the time of his arrest.
Trooper Brandon Curliss of the Kentucky State Police
testified concerning the July 19, 2002 incident.
Trooper
Curliss testified that he stopped Wells’ vehicle at a traffic
safety checkpoint in Casey County on July 19, 2002.
After
stopping Wells, Trooper Curliss suspected Wells to be under the
influence of alcohol and conducted field sobriety tests.
Wells
failed all of the field sobriety tests, prompting Trooper
Curliss to arrest Wells for DUI.
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Trooper Curliss testified that
an unidentified woman and male child were passengers in Wells’
vehicle at the time of the July 19, 2002 arrest.
Trooper
Curliss stated that he did not inquire about the identities of
the woman or the child, but noted that the male child appeared
to be approximately 10 to 12 years of age.
In rebuttal, Wells denied operating a motor vehicle
under the influence of alcohol on January 13, 2002 in Fayette
County.
Wells asserted that a man by the name of David Rodgers
was actually driving the vehicle at the time of his January 13,
2002 arrest.
Wells did, however, admit to operating a motor
vehicle in Casey County on July 19, 2002 after drinking alcohol.
Despite this admission, Wells contended that Brent was not the
unidentified male child in his vehicle on July 19, 2002.
David
Rodgers, the unidentified woman or the unidentified male child
were not present at the hearings and did not otherwise offer any
evidence concerning Wells’ DUI arrests.
Finally, the trial court interviewed Brent in
chambers.
Brent indicated that he preferred to live with Wells.
Brent testified that Singleton yells at him every week, smacks
and hits him on occasion and told him on one occasion that “I
brought you into this world, I can take you out.”
Brent stated
that Singleton drinks alcohol around him and made him deliver
two bottles of beer to a neighbor.
Brent further informed the
trial court that he simply wanted to get away from Singleton.
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Brent noted, however, that he has a good relationship with Wells
and that Wells has never consumed alcohol around him.
Upon
further examination by the trial court, Brent acknowledged that
he has prevented Wells from operating an all-terrain vehicle
after drinking alcohol.
On November 6, 2002, the trial court entered its
findings of fact, conclusions of law and order in this matter.
In this judgment, the trial court determined that Brent had been
“coached” by Wells in an effort to convince the court that Wells
should be granted custody.
Moreover, the trial court found that
Wells was not truthful concerning his DUI arrests.
As such, the
trial court believed that Wells possessed a serious alcohol
problem and that his alcohol abuse posed a serious danger to
Brent.
After finding that Brent’s best interests would not be
served by removing Brent from Singleton’s custody, the trial
court denied Wells’ motion to modify custody.
This appeal
followed.
Wells raises four arguments on appeal.
Wells argues
that the trial court erred by failing to determine at the
hearing whether or not Wells’ misconduct affected or would
likely affect Brent, erred by considering evidence of his DUI
conviction and arrests, erred by “speculating” about his failure
to call certain witnesses and erred by failing to find that
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Brent’s present environment may seriously endanger his physical,
mental and emotional health.
In reviewing a child custody determination, the
standard of review is whether the factual findings of the trial
court are clearly erroneous.
Kentucky Rule of Civil Procedure
(CR) 52.01; Reichle v. Reichle, Ky., 719 S.W.2d 442, 444 (1986).
Findings of fact are clearly erroneous if they are manifestly
Wells v. Wells, Ky., 412
against the weight of the evidence.
S.W.2d 568, 570 (1967).
Since the trial court is in the best
position to evaluate the testimony and to weigh the evidence, an
appellate court should not substitute its own opinion for that
of the trial court.
Reichle, 719 S.W.2d 442.
Ultimately, a
trial court's decision regarding custody will not be disturbed
absent an abuse of discretion.
S.W.2d 423, 425 (1982).
Cherry v. Cherry, Ky., 634
Abuse of discretion implies that the
trial court's decision is unreasonable or unfair.
Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
Kuprion v.
In reviewing the
decision of the trial court, therefore, the test is not whether
the appellate court would have decided it differently, but
whether the findings of the trial judge were clearly erroneous
or that he abused his discretion.
Cherry, 634 S.W.2d 423.
We first address Wells’ assertion that the trial court
erred by failing to find that Brent’s present environment may
seriously endanger his physical, mental and emotional health.
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Upon review of the record, we observe that Wells did not make a
request for more definite findings of fact pursuant to CR 52.04.
We are of the belief that the rationale of Cherry, 634 S.W.2d at
425, is dispositive:
The trial judge did not make as in-depth
findings of fact as could have been made so
as to clearly comply with CR 52.01; however,
CR 52.04 provides: 'A final judgment shall
not be reversed or remanded because of the
failure of the trial court to make a finding
of fact on an issue essential to the
judgment unless such failure is brought to
the attention of the trial court by a
written request for a finding on that issue
or by a motion pursuant to Rule 52.02.'...
The failure, if there was a failure, on the
part of the trial judge to make adequate
findings of fact was not brought to his
attention as required by CR 52.02 or CR
52.04; consequently, it is waived....
Even though the trial judge may not have
made in-depth findings of fact as
contemplated by CR 52.01; nevertheless, when
the record as a whole is considered, we do
not find that the action of the trial judge
was clearly erroneous .... (internal
citation omitted).
It is well established that if a party fails to
request a more definite finding of fact, the issue is deemed
waived.
Id.
As Wells failed to make such a request under CR
52.04, we need not address this argument.
See id.
Next, Wells argues that the trial court erred in
failing to determine at the time of the hearing whether or not
Wells’ alcohol-related misconduct adversely affected or was
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likely to adversely affect Brent.
In addressing this issue, we
also consider Wells’ contention that the trial court erred by
considering evidence of his DUI conviction and arrests.
Kentucky Revised Statute 403.270(3) states, in
relevant part, that the “court shall not consider conduct of a
proposed custodian that does not affect his relationship to the
child.”
In Krug v. Krug, 647 S.W.2d 790 (1983), the Kentucky
Supreme Court provided the standard to be used in considering
the misconduct of parties involved in a custody determination.
Our Supreme Court held:
[W]hen the misconduct of a proposed
custodian is advanced as a factor in the
determination of custody, evidence of such
misconduct may be heard and received, but
before giving any consideration to such
misconduct, the court must conclude, in his
reasonable discretion, that such misconduct
has affected, or is likely to affect, the
child adversely. If such a determination is
made, the trial court may then consider the
potential adverse effect of such misconduct
as it related to the best interests of the
child.
Id., at 793.
Thus, the trial court “is not required to wait
until the children have already been harmed before he can give
consideration to conduct causing harm.”
Id.
Here, we believe that the trial court did not err in
considering Wells’ DUI conviction in Jessamine District Court.
This DUI conviction occurred approximately three months prior to
Wells filing his motion to modify custody.
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The record further
showed that Wells had been arrested for DUI in Fayette County in
January 2002 and had again been arrested for DUI in Casey County
on July 19, 2002.
The Casey County DUI charge is highly
significant because this arrest occurred not only during the
pendency of this action, but placed his passengers, including an
unidentified male child, at severe risk of injury.
The trial
court found, despite Wells’ contention that Brent was not the
unidentified male child in the vehicle at the time of his Casey
County DUI arrest, that Brent was probably a passenger of the
vehicle Wells was operating at the time of his arrest.1
This
finding is magnified by Brent’s admission that he would not
allow Wells to operate an all-terrain vehicle after drinking.
As such, we believe that the trial court correctly determined
that Wells’ behavior posed a potential danger to the child.
The
“trial court is not precluded from consideration of
circumstances where the . . . environment has not yet adversely
affected the children but which, in his discretion, will
adversely affect them if permitted to continue.”
793.
Krug, supra at
Therefore, Wells’ arguments concerning these issues are
completely without merit.
Finally, we address Wells’ assertions that the trial
court erred by “speculating” about his failure to call certain
1
Brent was 13 years of age at the time of the Wells’ July 19, 2002 arrest for
DUI in Casey County.
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witnesses to support his testimony concerning the facts
underlying his DUI arrests.
We reject this argument.
Kentucky law permits the trial court to judge the
demeanor and credibility of the witness in any action tried
without a jury.
CR 52.01.
As such, the trial judge is free to
make any determinations about the credibility of the witness
based upon the evidence presented.
Appellate courts must be
mindful that the trial court possessed the opportunity to hear
and observe the witnesses so as to evaluate their credibility,
placing the trial court in the best position to make appropriate
findings of fact.
Bealert v. Mitchell, Ky. App., 585 S.W.2d
417, 418 (1979).
Having reviewed the record, we cannot say that the
trial court erred in finding Wells’ testimony concerning his DUI
arrests to have little credibility.
The trial court did not
reach this conclusion by “speculating” about why Wells did not
call certain witnesses to support his testimony.
Rather, the
trial court merely determined that Wells’ testimony concerning
his DUI arrests was not credible based upon the weight of the
evidence of record.
Wells could have easily supported his
testimony concerning the Fayette County DUI arrest with
testimony from David Rodgers.
Moreover, other witnesses could
have affirmed Wells’ contention that Brent was not present
during his DUI arrest in Casey County.
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Instead, Wells
introduced his own self-serving testimony which the court deemed
to have little credibility when compared to the testimony of the
two arresting police officers.
Accordingly, we find no error.
The judgment of the Casey Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Justin Genco
Stanford, Kentucky
Dawn Lynne Gregory
Theodore H. Lavit
Theodore H. Lavit & Associates,
P.S.C.
Lebanon, Kentucky
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