KELLI RENEE JUDD v. CHRISTOPHER EDELEN
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001486-MR
KELLI RENEE JUDD
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
CIVIL ACTION NO. 02-CI-01310
v.
CHRISTOPHER EDELEN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, Chief Judge; MINTON, AND VANMETER, Judges.
MINTON, Judge.
Kelli Renee Judd appeals from an order of the
Hardin Circuit Court that awarded Christopher S. Edelen sole
custody of their infant daughter.
Judd
daughter,
and
Scotlyn
Edelen
T.
are
Edelen,
Finding no error, we affirm.
the
parents
born
out
of
of
one
child,
wedlock
a
on
September 18, 1999, in Pensacola, Florida, when Judd and Edelen
were living there.
After the couple broke up, Edelen petitioned
for custody of Scotlyn in the circuit court in Escambia County,
Florida, sometime in early 2000.
Initially, the Florida court
designated Judd as the temporary residential parent and gave
Edelen
regular
visitation.
Before
custody
was
resolved,
however, Judd left Florida with the child and moved to Kentucky.
In September 2000, the Florida court made Edelen the primary
residential
parent
and
held
Judd
in
contempt
for
failing
to
allow visitation to Edelen and for failing to appear at a show
cause hearing.
A spate of litigation followed in Kentucky as Judd
filed successive custody petitions and sought domestic violence
protective
orders
in
Taylor
Circuit
Court, and Hardin Circuit Court.
Court,
Jefferson
Circuit
In each case, Edelen contested
the jurisdiction of the Kentucky courts and responded that the
pending Florida action gave him a superior claim to the child.
Eventually,
the
prosecution.
last
place
Florida
action
was
dismissed
for
lack
of
Hardin Circuit Court, being the venue of Judd’s
of
residence
with
the
child,
then
proceeded
to
resolve the custody matter.
In an order entered July 14, 2003, the circuit court
extensively
Relations
analyzed
the
Commissioner’s
evidence
(DRC)
adduced
hearing
and
at
the
overruled
Domestic
Judd’s
numerous objections to the findings and conclusions recommended
by the DRC.
In a separate order entered on the same date, the
-2-
circuit court adopted the DRC’s recommendations giving Edelen
sole custody of Scotlyn.
Judd received one week’s visitation
monthly until the child enters kindergarten.
The court also
ordered Judd to pay $137.75 per month as child support, the
amount recommended by the DRC, beginning June 1, 2003.
Judd raises three arguments on appeal.
First, she
argues that the trial court abused its discretion by awarding
sole custody of the child to Edelen, characterizing the trial
court’s
custody
decision
as
punitive
for
Judd’s
having
frustrated Edelen’s visitation with the child for nearly two
years.
Next, she argues that the trial court failed to consider
and to award joint custody.
Thirdly, she argues that the trial
court erred in awarding “retroactive” child support beginning
June 1, 2003, because Edelen did not get sole custody until
entry of the order on July 14, 2003.
We will consider Judd’s first two arguments together
because they are addressed to the proper application of the best
interests of the child standard.
The best interests of the
child standard applies in determining custody of children born
out
of
parents,
wedlock.1
the
Regardless
overriding
of
the
marital
consideration
in
status
any
determination is the best interests of the child.2
1
2
of
the
custody
Kentucky
Basham v. Wilkins, Ky.App., 851 S.W.2d 491, 493 (1993).
Squires v. Squires, Ky., 854 S.W.2d 765, 768 (1993); KRS 403.270.
-3-
Revised
Statute
(KRS)
403.270
lists
factors
which
should
be
considered in assessing the best interests of the child. The
statute provides, in relevant part, as follows:
(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
home, school, and community;
(e)
The mental and physical health of
all individuals involved;
his
(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
-4-
(i)
(3)
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.
The court shall not consider conduct of
a proposed custodian that does not
affect
his
relationship
to
the
child....
In his recommendation to the circuit court, the DRC
recommended the following findings:
On balance, [Edelen] offers, at least,
a more stable environment than that offered
by [Judd]. He has maintained the same home
over a long period of time and maintained
employment for 5 years.
He appears to have
a supportive family structure capable of
rendering appropriate care. [Judd] moved
from one location to the other, at least in
part, in order to file multiple petitions
seeking to frustrate visitation.
Overall,
her actions are intolerable.
After conducting an independent review of the evidence following
Judd’s objections to the DRC’s report, the circuit court adopted
the DRC’s report and made the following additional findings:
When possession of the child was actually
transferred
to
[Edelen]
belatedly
for
visitation, [Judd] did not tell [Edelen]
that
the
child
was
allergic
to
sulfa
medications.
Fortunately, no harm came to
the child as no such medications were
-5-
prescribed during [Edelen’s] possession, but
the consequences of that lack of information
could have been tragic.
There is no question that [Judd] moved
several times during the time she has had
physical possession of the child.
[Judd]
did not take the child off of her bottle
until she was almost 3 years old. The child
did not see a dentist until just before the
hearing in this matter, and there is no
dispute that the child has cavities which
may be the result of this extended use of
the bottle, especially when the child is
left with the bottle before she goes to
sleep at night. [Judd] conceded that it was
not good to let the child use the bottle so
long, but she explains that it was a
security item for the child.
Also disturbing is one issue in the
context of the sexual abuse allegations.
There was testimony about [Judd’s] having in
her possession anatomically correct dolls.
[Judd] suggested that she had those dolls
only for a limited period of time and that
she had borrowed them. When [Judd’s] mother
testified, she indicated that [Judd] has
owned such a set of dolls since her own
childhood. This rather unusual ownership of
such
items
properly
figured
into
the
Commissioner’s consideration as to the merit
of the various sexual abuse allegations.
Considering the testimony of the two
parties, it is clear that [Edelen] is more
stable and more credible, although neither
party
has
been
wholly
credible,
and
certainly neither party has acted at all
times in the utmost good faith.
[Edelen]
has a long-term employment history in one
location.
He can provide for the child’s
needs.
While [Judd’s] situation may have
improved as is indicated by her current
residence and her engagement, her past
history
of
moving
around
was
properly
-6-
considered by the Commissioner in making a
recommendation as to custody.
... The Court would independently find
that, based upon the living situations,
employment history and family influences
[Edelen] provides the best environment for
the child at this time.
It is in the best
interests of the child that sole custody be
awarded to [Edelen] as recommended by the
Commissioner.
In
of
standard
factual
reviewing
review
findings
of
for
the
a
child
the
custody
appellate
trial
court
determination,
court
are
is
whether
clearly
the
the
erroneous.3
Findings of fact are clearly erroneous if they are manifestly
against the weight of the evidence.4
Since the trial court is in
the best position to evaluate the testimony and to weigh the
evidence,
an
appellate
court
should
opinion for that of the trial court.5
not
substitute
its
own
After the trial court
makes the required factual findings, it must apply the law to
those facts.
facts
and
the
The trial court’s application of the law to the
ultimate
custody
award
will
not
be
disturbed
absent an abuse of discretion.6 Abuse of discretion implies that
3
Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle,
Ky., 719 S.W.2d 442, 444 (1986).
4
Wells v. Wells, Ky., 412 S.W.2d 568, 570 (1967).
5
Reichle, supra.
6
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
-7-
the
trial
court's
decision
is
unreasonable
unfair.7
or
In
reviewing the decision of the trial court, therefore, the test
is not whether the appellate court would have decided the case
differently but whether the factual findings of the trial judge
were clearly erroneous or its application of the law an abuse of
judicial discretion.8
The trial court noted from the evidence that since
coming to Kentucky Judd had filed actions in courts in three
counties in which she had made various allegations containing
material misstatements and that Judd had otherwise engaged in a
pattern
child.
did
not
of
conduct
designed
to
keep
Edelen
from
seeing
the
The trial court observed the undisputed fact that Edelen
see
the
child
from
June
2000
until
September
2002.
Finally, trial court expressed concern over reckless allegations
of sexual abuse of the child made by both sides.
There is
substantial albeit disputed evidence in the record to support
these findings by the circuit court.
The circuit court’s order
clearly states that these facts provide the unfortunate backdrop
against
states
which
the
repeatedly
custody
that
it
dispute
has
has
not
unfolded.
deviated
interest standard in order to punish Judd.
The
from
We agree.
7
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
8
Cherry, supra.
-8-
the
court
best
The
circuit
court
actually
found
that
Edelen
would
provide a more stable home environment and would provide a more
supportive family structure for the child.
On the other hand,
the circuit court found that Judd’s stability and credibility
are questionable because of a) her history of moving from place
to
place
to
frustrate
visitation,
b)
her
failure
to
inform
Edelen of the child’s allergy to sulfa drugs, c) her failure to
wean
the
child
from
the
bottle
thereby
contributing
to
the
child’s tooth decay, and d) her lack of candor concerning her
possession of anatomically correct dolls.
supported by substantial evidence.
home
environment
raising
a
child
and
conduciveness
are
relevant
These findings are
The issues of stability of
of
under
that
KRS
environment
403.270(2)(c)
to
and
KRS 403.270(2)(d).
Contrary to Judd’s argument, the record indicates that
joint custody was considered and rejected as follows:
The Commissioner has considered the matter
of joint custody, but the parties simply
cannot cooperate sufficiently to engage in
joint
custody
of
the
child.
The
Commissioner can not [sic] envision circumstances under which they could cooperate
sufficiently to make joint decisions with
respect to the child’s education, medical
needs and religious training.
Again, the focus when reaching a decision between sole or joint
custody is which would promote the child’s best interests.
In
assessing the appropriateness of joint custody, the court must
-9-
consider the factors of KRS 403.270 and the likelihood of future
cooperation.9
Therefore, the circuit court did not abuse its
discretion in awarding sole custody of the child to Edelen.
Finally, Judd mentions in her Brief that the trial
court
erred
June 1,
2003,
by
ordering
the
month
child
when
support
the
to
DRC’s
become
report
effective
was
filed,
instead of July 14, 2003, the month when the circuit court’s
order was entered.
Edelen responds that this issue was waived
by Judd’s failure to raise a timely objection to this aspect of
the DRC’s report.
Based upon our review of the record, we agree
that this issue has not been preserved for argument on appeal.10
For the reasons discussed above, the custody order of
the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dawn Lynne Gregory
Theodore H. Lavit
THEODORE H. LAVIT & ASSOC.,
P.S.C.
Lebanon, Kentucky
Phyllis K. Lonneman
Dawn Lonneman Blair
LONNEMAN, BLAIR & LOGSDON,
PLLC
Elizabethtown, Kentucky
9
Squires, 854 S.W.2d at 769.
Eiland
v.
Ferrell,
Ky.,
C.R. 53.06(2).
10
937
-10-
S.W.2d
713,
716
(1997);
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