ARMINDA MARIE DAVIS v. JAMES ROBERT FARMER and CABINET FOR FAMILIES AND CHILDREN
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RENDERED: April 16, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000953-MR
ARMINDA MARIE DAVIS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE B. VANMETER, JUDGE
ACTION NO. 99-CI-00175
v.
JAMES ROBERT FARMER and
CABINET FOR FAMILIES AND CHILDREN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MINTON, and TACKETT, Judges.
MINTON, Judge.
Arminda Marie Davis (“Davis”) appeals from an
order of the Fayette Circuit Court, entered April 7, 2003, which
awarded
sole
custody
of
the
parties’
husband, James Robert Farmer (“Farmer”).
minor
son
to
her
ex-
Finding no error, we
affirm.
Davis and Farmer were married on September 4, 1996.
This marriage produced one child, R. C., born on October 13,
1997.
Apparently,
Farmer
and
Davis’s
marriage
began
to
deteriorate after they moved into the same house with Davis’s
parents, Earl and Lois Goins, and her forty-year-old brother,
Tyler Sinclair.
their
marriage,
Believing that Davis’s family was straining
Farmer
convinced
Davis
to
move
family’s place and into a separate apartment.
out
of
her
After Davis and
Farmer moved into their apartment, Davis’s family relocated to
the apartment directly across the hallway from Farmer and Davis.
Soon thereafter, Davis and Farmer separated.
the
parties’
separation,
Davis
filed
a
Immediately after
domestic
violence
petition against Farmer in the Fayette District Court.
In her
petition, Davis alleged that Farmer had physically abused her.
Davis further alleged that Farmer had physically abused R. C. by
hitting the child’s head against the ceiling while tossing him
into
court
the
air.
issued
required
Based
an
Farmer
upon
Emergency
to
vacate
petition for divorce.
Davis’s
allegations,
Protective
the
Order
residence.
the
district
(“EPO”),
He
then
which
filed
a
The record contains no medical evidence
that Farmer ever abused R. C. by hitting his son’s head against
a ceiling.
On
January
mediation agreement.
29,
1999,
the
parties
Farmer
would
into
a
According to this agreement, Davis was
granted temporary sole custody of R. C.
that
entered
have
supervised
-2-
The parties also agreed
visitation
twice
a
week.
Further, Farmer agreed to pay Davis temporary child support and
maintenance.
custodial
Finally, both parties agreed to cooperate with a
evaluation
to
be
conducted
by
the
Friend
of
the
Court’s office.
For reasons not explained in the record, Davis refused
to
cooperate
with
the
custodial
evaluation
that
was
being
conducted by Joanne Rice of the Friend of the Court’s office.
According
to
Rice,
Davis
initially
refused
psychological evaluation by Dr. Diana Hartley.
to
undergo
a
Davis’s lack of
cooperation forced the Friend of the Court, on October 15, 1999,
to file a motion with the trial court to compel Davis to undergo
the
psychological
evaluation
with
Dr.
Hartley.
Eventually,
Davis did submit to the court-ordered evaluation but failed to
answer thirteen written questions, responded defensively to the
evaluation, failed to provide medical authorizations to allow
Rice to obtain R. C.’s medical records, refused to cooperate in
making appointments, and refused to provide routine information
to Rice, such as disclosing her employment.
Friend
of
the
Court’s
office
filed
In August 2000, the
another
motion
to
compel
Davis to cooperate with its evaluation.
Despite Davis’s lack of cooperation, Rice was able to
complete and submit her report to the trial court.
In her
report, Rice found no evidence that Farmer had ever abused R. C.
Rice also believed that R. C. should be spending more time with
-3-
Farmer
and
suggested
a
gradual
elimination
of
Farmer’s
supervised visitation but recommended that Farmer not lift R. C.
into the air during visits.
Rice also opined that Farmer should
become more involved in R. C.’s medical care.
As for Davis,
Rice recommended that she report any suspected abuse of R. C. to
the Cabinet for Families and Children (“CFC”) and refrain from
speaking negatively about Farmer in front of R. C.
Rice also
strongly suggested that Davis’s brother, Sinclair, should have
much less involvement with R. C.
demeanor
during
her
According to Rice, Sinclair’s
investigation
was,
at
times,
testy,
belligerent, and “like that of a precocious twelve-year-old boy
who was seeking approval.”
Rice believed that, based upon her
findings, Davis and Farmer should be granted joint custody of
R. C.
On November 1, 2000, the trial court entered an order
that granted Farmer unsupervised visitation on specific dates
but
left
sole
custody
of
R. C.
with
Davis.
The
decree
of
dissolution of marriage was entered on April 27, 2001; but the
trial
court
reserved
for
adjudication
at
a
future
date
the
issues of child custody, child support, and timesharing.
Throughout
the
litigation
of
this
matter,
Davis
continued to express the belief that Farmer was abusing R. C.
In order to confirm this belief, Davis took R. C. to numerous
medical providers in an effort to find some physical condition
-4-
related
to
Farmer’s
alleged
physical
and
sexual
abuse.
On
February 1, 1999, Dr. Julie Lindemuth examined R. C. and found
his
physical
condition
to
be
normal.
Unsatisfied
with
this
result, Davis took R. C. to a medical clinic in Rowan County.
This clinic referred her to a neurologist, Dr. Edward Escobar.
Dr. Escobar arranged for R. C. to have an EEG and a CT scan on
April 27, 1999.
The results of the EEG were normal.
The CT
scan, however, noted an abnormality described as “multiple old
bilateral
centrum
semiovale
watershed
distribution”
hypoxic/ischemic event.
that
white
were
matter
most
hypodensities
consistent
with
in
a
Dr. Escobar provided no opinion as to
what type of hypoxic or ischemic event had occurred.
Davis had also taken R. C. to the St. Claire Medical
Center and the Menifee Medical Center, alleging that Farmer had
sexually and physically abused the child.
Medical examinations
conducted at these locations produced normal results.
Davis
also
took
R. C.
to
Violet
Vago,
therapist working for St. Claire Homecare Agency.
a
physical
Vago found
R. C. to be a “toe-walker,” a condition that was intermittent
and increased when the child became tired.
Vago recommended
that the family help the child do exercises to strengthen his
legs.
Davis’s brother, Sinclair, refused to permit R. C. to
perform these exercises, claiming that R. C.’s legs could not be
spread since he was a victim of sexual abuse.
-5-
Vago noted that
the
family
abuse
in
consistently
front
investigation
of
that
discussed
R. C.
Vago
Davis’s
family
the
allegations
informed
members
Rice
were
of
sexual
during
very
her
dramatic
about R. C.’s alleged physical conditions in order to present
Farmer in a bad light.
Further, Vago stated that when she was
treating R. C. in the home, she observed only normal toddler
behaviors
that
proportion.
the
family
had
blown
completely
out
of
Finally, Vago, on Davis’s insistence, prescribed
R. C. leg braces on a limited basis.
Shortly thereafter, the
Davis family discharged Vago based upon their belief that R. C.
should wear the braces at all times.
Davis also involved the courts in her endless pursuit
of evidence against Farmer.
On October 16, 2001, Davis filed a
petition with the Montgomery District Court alleging that Farmer
had sexually abused R. C.
The Montgomery District Court entered
an EPO that allowed Farmer only supervised visitation with the
child
during
the
pendency
of
that
proceeding.
The
district
court also ordered CFC to investigate Davis’s allegations.
At a
February 2002 hearing, social worker Blanche Zalone informed the
district court that the sexual abuse charges against Farmer were
found to be unsubstantiated.
At this point, the district court
urged the parties to resolve their disputes by agreement.
At
the district court’s suggestion, the parties agreed that the
October 16, 2001, petition would be dismissed with a finding
-6-
that no domestic violence had occurred.
Moreover, the parties
entered into an agreed order on February 13, 2002. This agreed
order granted the parties joint custody of R. C., with Farmer to
have unsupervised visits every other week.
The parties also
agreed to exchange the child at CFC’s Montgomery County office.
On March 15, 2002, immediately after Farmer picked up
R. C. at CFC’s Montgomery County office, Davis filed another
domestic violence petition with the Montgomery District Court
alleging that Farmer had again physically and sexually abused
R. C.
As a result of this petition, the district court entered
another EPO; and R. C. was subsequently removed from Farmer’s
custody.
These
allegations
were
later
found
to
be
unsub-
stantiated by CFC.
Davis’s allegations of March 15, 2002, also prompted
CFC
to
investigate
R. C.’s
physical
and
emotional
health.
According to Denise Weider, a CFC specialist, Davis had taken
R. C.
to
Dr.
James
Jackson
in
Morehead
for
treatment
Attention Deficit Hyperactivity Disorder (“ADHD”).
prescribed
clonidine
to
treat
the
ADHD.
Later,
of
Dr. Jackson
R. C.
was
referred to Dr. Sarah Winter at Cincinnati Children’s Hospital
for a developmental evaluation at Davis’s request.
Dr. Winter
determined that R. C. did not have a clear diagnosis for ADHD
and advised Davis to discontinue using clonidine.
Dr. Jackson
never received a copy of Dr. Winter’s report, nor was he even
-7-
aware that R. C. had been evaluated by Dr. Winter.
On March 26,
2002, Davis’s family contacted Dr. Jackson’s office and obtained
a refill for clonidine.
Finally, CFC removed R. C. from Davis’s
custody on April 26, 2002.
During this removal, Davis gave
Weider
prescription
the
child’s
clonidine
Weider of Dr. Winter’s diagnosis.
but
never
informed
Afterward, Weider discovered
that Davis was medicating R. C. against Dr. Winter’s advice.
Moreover,
during
her
investigation,
Weider
learned
from
the
child’s psychologist, Dr. Christopher Allen, that the child was
sexually precocious and that nobody in the family was beyond
suspicion.
Thus,
on
May
16,
2002,
Weider
petition with the Fayette District Court.
filed
a
juvenile
That court ultimately
placed R. C. in CFC’s custody.
On January 24, 2003, Farmer filed a motion to modify
the trial court’s February 13, 2002, order establishing joint
custody.
In his motion, Farmer noted that CFC had removed R. C.
from Davis’s custody and requested that the trial court grant
him sole custody of their child.1
matter on March 20, 2003.
A hearing was held in this
After hearing all of the evidence,
the trial court entered an order granting Farmer’s motion to
modify
custody.
The
trial
court
1
further
granted
Davis
CFC did not object to or otherwise contest Farmer’s motion. CFC
did, however, object to R. C. returning to the custody of the Davis
family.
-8-
supervised visitation but ordered that R. C. have no contact
with Davis’s parents or her brother.
This appeal follows.
On appeal, Davis argues that the trial court erred in
awarding Farmer sole custody of R. C.
In support of this argu-
ment, Davis contends in her brief that the evidence presented by
all
parties
at
trial
did
not
“remotely
support
the
extreme
judgment entered” by the trial court.
In
reviewing
a
child
custody
determination,
the
standard of review is whether the factual findings of the trial
court
are
erroneous
evidence.3
clearly
if
they
erroneous.2
are
Findings
manifestly
of
against
fact
the
are
weight
clearly
of
the
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.4
Ultimately,
a
trial
court's
decision
regarding
custody will not be disturbed absent an abuse of discretion.5
Abuse of discretion implies that the trial court's decision is
unreasonable or unfair.6
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
2
Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle,
Ky., 719 S.W.2d 442, 444 (1986).
3
Wells v. Wells, Ky., 412 S.W.2d 568, 570 (1967).
4
Reichle, supra.
5
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
6
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
-9-
the trial judge were clearly erroneous or an abuse of judicial
discretion.7
In Scheer v. Zeigler,8 we held that the same criteria
apply
for
a
modification
of
modification of sole custody.
modification
party
of
seeking
joint
joint
custody
as
apply
to
a
Thus, in order for there to be a
custody,
modification
as
in
must
all
first
custody
meet
cases,
the
the
threshold
requirements for modification contained in KRS9 403.340.
KRS 403.340(2) mandates that no motion to modify a
custody decree shall be made earlier than two years after being
entered, unless the court permits it to be made on the basis of
affidavits
child’s
that
physical,
there
exists
mental,
a
reason
moral,
or
to
believe
emotional
that
health
may
seriously endangered by the child’s present environment.
there
is
no
question
that,
on
the
basis
of
the
be
Here,
affidavits
from
Weider, Farmer, and Dr. Allen that were submitted to the trial
court with Farmer’s motion to modify custody, the trial court
had sufficient information permitting it to believe that R. C.’s
physical,
mental,
endangered
while
Accordingly,
the
moral,
he
and
was
trial
emotional
residing
court
health
with
correctly
the
were
Davis
determined
possessed the authority to consider Farmer’s motion.
7
8
9
Cherry, supra.
Ky.App., 21 S.W.3d 807 (2000).
Kentucky Revised Statutes.
-10-
seriously
family.
that
it
KRS 403.340(3) sets forth the threshold circumstances
that must be met in order for the circuit court to reconsider an
initial custody award:
If a court of this state has jurisdiction
pursuant
to
the
Uniform
Child
Custody
Jurisdiction Act, 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. When determining if a change has
occurred and whether a modification of
custody is in the best interests of the
child,
the
court
shall
consider
the
following:
(a)
Whether the custodian
modification;
(b)
Whether the child has been integrated
into the family of the petitioner with
consent of the custodian;
(c)
The factors set forth in KRS 403.270(2)
to determine the best interests of the
child;
(d)
Whether the child's present environment
endangers
seriously
his
physical,
mental, moral, or emotional health;
(e)
Whether the harm likely to be caused by
a change of environment is outweighed
by its advantages to him; and
(f)
Whether the custodian has placed
child with a de facto custodian.
-11-
agrees
to
the
the
The test trial courts must use to determine the best
interests
of
the
child
is
codified
in
KRS
403.270(2).
statute states in pertinent part:
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
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
school, and community;
(e)
The mental and physical health of all
individuals involved;
(f)
Information, records, and evidence
domestic
violence
as
defined
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
of
the
-12-
child
to
as
his
to
his
home,
of
in
This
(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.
Contrary to Davis’s assertions, there is no evidence
in the record before us indicating that the trial court failed
to apply the relevant factors listed in both KRS 403.340(3) and
KRS 403.270(2).
In
particular,
the
trial
court
extensively
addressed whether modification of custody was in the child’s
best
interests
by
specifically
determining
whether
the
environment provided by the Davis family seriously endangered
R. C.’s physical, mental, moral, or emotional health and whether
the harm likely to be caused by changing his environment is
outweighed by its advantages to him.
factors,
our
review
reveals
that
the
In addressing these two
trial
court
determined:
[T]hat the repeated filings of Domestic
Violence Petitions by the mother show an
abuse of legal process and evidence an
effort to prevent visitation by the father.
Further, the mother has not promoted the
child’s relationship with his father, but
has
in
fact
actively
undermined
that
relationship.
The mother’s perception of
facts is often different from that of third
parties,
such
as
social
workers
and
physicians.
She provided a video tape of
-13-
correctly
the child to the Friend of the Court’s
Office demonstrating what she considered to
be problematic behavior by the child, but in
the opinion of the custodial evaluator and
the Court, this behavior was normal for a
child that age.
Similarly, the mother has
failed to recognize that no head injury had
occurred to the child, despite determinations by experts. She has reported that the
child is afraid of his father and does not
wish to visit him, although every witness
other than the mother and her family state
that child and father have a strong bond.
The mother lacks any insight into how her
perception of these facts may differ from
impartial third parties.
The mother sought medication for the child
that he did not need, and then when informed
that the medication was not necessary and
that the child should be weaned from it, she
nonetheless failed to take him off the
medication.
These actions by the mother constitute
emotional abuse that creates a serious
potential for continued danger to the child
and the harm likely to be caused by a change
of
environment
is
outweighed
by
the
advantages to the child.
In addition to these facts, the record reveals that
the whole Davis family, following the breakup of the marriage,
engaged in a concerted effort to deny R. C. any contact with his
father.
misled
Davis took the child to numerous medical providers,
them
about
the
child’s
history
and
prior
medical
treatment, and ultimately failed to follow the recommendations
of these medical providers if their advice was contrary to her
ultimate goal of collecting medical proof to support her theory
-14-
that
Farmer
had
physically
or
sexually
abused
R. C.
The
incident with the child’s leg braces is typical of this pattern.
Davis insisted that the child obtain leg braces, even though the
physical
therapist
opined
otherwise.
Davis
and
her
family
refused to allow R. C. to exercise as the therapist instructed.
However,
when
the
therapist
finally
relented
and
recommended
braces under very limited circumstances, Davis discharged the
therapist
and
forced
the
child
to
endure
the
braces
at
all
times.
The most damaging evidence the trial court considered
in
determining
child’s
best
potentially
whether
modification
interest
involved
harmful
of
custody
administration
Davis’s
of
was
in
the
acquisition
clonidine.
The
and
record
reveals that Davis obtained a prescription for clonidine for the
child
by
diagnosed
falsely
as
informing
having
ADHD.
Dr.
When
Jackson
evaluated
that
by
he
Dr.
had
been
Winter
on
February 27, 2002, she determined that the child did not have
ADHD
and
recommended
that
he
be
weaned
off
of
clonidine.
Nevertheless, Davis telephoned Dr. Jackson and had him renew the
clonidine
prescription
Dr. Winter’s
without
recommendation.
informing
In
fact,
Dr.
Davis
Jackson
of
administered
clonidine to R. C. up until the day CFC placed him in foster
care.
Thus, the record clearly demonstrates that Davis cruelly
and deliberately manipulated numerous medical professionals in
-15-
an attempt to gain an advantage over Farmer in this custody
proceeding.
In light of this substantial evidence of Davis’s
physical, mental, and emotional abuse of R. C., we believe that
the
trial
court
properly
concluded
that
the
child’s
best
interests would be served by modifying the custody decree to
grant sole custody to Farmer.
Accordingly, we believe Davis’s
arguments to the contrary are completely without merit.
Davis also contends that the trial court abused its
discretion in preventing all contact between the child and the
Davis family.
We strongly disagree.
Our review of the entire record leads us to conclude
that Davis and her family have attempted to convince the child
that his father was evil and had sexually abused him.
custodial
evaluation
indicates
that
the
Davis
family
The
openly
discussed the sexual abuse allegations against Farmer in front
of
the
child.
Moreover,
Weider
testified
about
a
letter,
supplied by the Davis family, from family friend Vernon Engle.
Engle’s letter indicates that after the child returned from a
visitation period with his father, Engle, along with the Davis
family, took him to a van and immediately undressed him for an
inspection.
Engle wrote that when the Davis family removed the
child’s diaper, Engle smelled a pungent odor that he ascribed to
anal sex.
Conducting this strip search immediately after the
child returned from visiting with his father demonstrates the
-16-
Davis family’s insensitivity to the child’s physical, mental,
and
emotional
health
and
exposes
their
own
contemptible
obsession with building a case for abuse.
In view of the entire record before us, it is clear to
us that the trial court considered the best interest of the
child by analyzing and applying the relevant factors listed in
KRS 403.340(3) and KRS 403.270(2).
The record demonstrates that
there was sufficient evidence for the court to conclude that
R. C.’s
best
interests
parents
herein
to
would
maintain
not
be
joint
served
by
custody.
allowing
both
Accordingly,
we
cannot conclude that the trial court abused its discretion by
awarding Farmer sole custody of R. C.
CR 52.01.
For the aforementioned reasons, the judgment of the
Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE FARMER:
Susan S. Kennedy
FOWLER, MEASLE & BELL, LLP
Lexington, Kentucky
Robert M. Pfeiffer
Lexington, Kentucky
BRIEF FOR APPELLEE CABINET FOR
FAMILIES AND CHILDREN:
David W. Mossbrook
Lexington, Kentucky
-17-
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