CYNTHIA DAWN JOHNS , FAMILY BRANCH v. JEFFREY ALLEN JOHNS
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RENDERED: August 27, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001704-MR
CYNTHIA DAWN JOHNS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT, FAMILY BRANCH
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 00-CI-03953
JEFFREY ALLEN JOHNS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND KNOPF, JUDGES; AND EMBERTON, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
Cynthia Dawn Johns, now Fyffe, (hereinafter
“Cindy”) has appealed from the decision of the Fayette Circuit
Court, Family Branch, to award sole custody of her two minor
children to their father, Jeffrey Allen Johns (hereinafter
“Jeff”).
We affirm.
Jeff and Cindy were married in Fayette County,
Kentucky, on November 1, 1997.
1
Two children were born of the
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
marriage:
Lauren Maisie Johns on June 4, 1998, and Emily Janice
Johns on August 14, 2000.
Jeff and Cindy separated on October
26, 2000, shortly after Emily’s premature birth, and Jeff filed
a Petition for Dissolution of Marriage on October 30, 2000.
The
matter was originally assigned to Fayette Circuit Judge Rebecca
Overstreet, and was heavily litigated over the next three years.
By orders entered December 7 and 15, 2000, Cindy was given
temporary sole care and custodial control over Lauren and Emily.
Jeff was ordered to pay child support in the amount of $892 per
month and temporary maintenance in the amount of $1650 per
month.
Both were subject to random drug and alcohol screenings,
and smoking was prohibited in the presence of the children.
Cindy also received exclusive occupancy of the marital
residence.
Jeff was allowed time-sharing with the children,
with the condition that it take place in the presence of his
parents.
By order entered January 25, 2001, Jeff and Cindy were
referred to parenting coordination.
Status reports regarding
the parenting coordination showed slow but steady progress in
cooperative co-parenting.
On July 11, 2001, the trial court granted Jeff’s
motion for a custodial evaluation by Diana Hartley, PhD
(hereinafter “Dr. Hartley”).
On August 16, 2001, the trial
court entered an order granting Cindy’s motion to discontinue
parent coordinating during the custodial evaluation and to also
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temporarily terminate all visitation between Jeff and the
children.
The termination of visitation was based upon the
affidavit of Lauren’s therapist, Carl Moses, that she was
showing emotional distress in connection with her visits with
Jeff.
Visitation was later reinstated by Agreed Order entered
December 13, 2001.
In 2002, the trial court also ordered Jeff
and Cindy to once again participate in parent coordinating and
ordered Lauren to be seen by a counselor other than Carl Moses
and to be enrolled in preschool five days per week.
The ruling
regarding Lauren was apparently based upon Dr. Hartley’s
recommendation, who had also recommended joint custody.
By
December of 2002, the parties had agreed to mediate a holiday
time-sharing schedule with Dr. Hartley.
In early 2003, the case was transferred to Judge Jo
Ann Wise of the Family Court Division.
A trial on the contested
issues, including custody, was then held on July 15 and 16,
2003, at which time the trial court heard testimony from both
Jeff and Cindy, Cindy’s mother, Lauren’s preschool teacher, as
well as several medical and mental health professionals.
Following the trial, Jeff requested that the trial court make an
award of joint custody based upon the recommendations of Dr.
Hartley and Carl Moses and upon Cindy’s failure to facilitate
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Jeff’s involvement with the children’s upbringing.2
On the other
hand, Cindy requested that she be awarded sole custody due to
their lack of willingness to cooperate and because it would be
detrimental to remove the children from the person who had been
their primary caregiver.
On July 17, 2003, the trial court entered a Decree of
Dissolution dissolving the marriage and granting Jeff sole
custody of Lauren and Emily.
The trial court incorporated its
written and oral Findings of Fact and Conclusions of Law into
the decree, and indicated that the supporting findings and
conclusions entered orally would be reduced to writing and
entered by a supplemental decree.
On August 15, 2003, the trial
court entered the Final Supplemental Decree of Dissolution,
which included the following findings of fact and conclusions of
law pertaining to custody:
8.
This Court agrees with statements made
by the wife that joint custody will not
work in this case due to the lack of
communication between the parties.
While there is usually some base line
communication between divorcing parties,
there is none in this case and there is
very little prospect for communication
to improve. Since this court has no
choice but to award either joint or sole
custody, it finds that it is [in] the
children’s best interests that the
husband shall be the sole custodian of
the parties’ minor children, Lauren, age
2
We note that although he indicated that he wanted the trial court to award
joint custody, during his cross-examination Jeff testified that he wanted
sole custody based upon what had happened in the past.
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5 and Emily, age 2. This Court makes
this ruling for five (5) reasons:
a.
The children have been in the care
of their mother under the temporary
sole custody Order entered in
December 2000. The mother’s
testimony and the testimony of
other witnesses is that the
children have deteriorated since
that order [was] entered. The
children have been under their
mother’s watch during this time
with very little involvement
allowed for the father. He,
therefore, cannot be blamed for
this deterioration.
b.
It is clearly apparent that the
mother has blame and anger at the
father. This court was so
concerned at the extent of her
blame that it researched the
dependency/neglect/abuse statute
under KRS 600 to determine if the
blame and anger warranted a report
of dependency/neglect/abuse to the
Department for Social Services.
c.
The mother’s testimony showed that
she was very closed-minded
regarding the children’s
relationship with their father and
that she had an agenda regarding
the children and their father.
When she first visited Carl Moses,
LSCW on October 30, 2000, the day
the Petition was filed and four
days after the separation she told
him she wanted sole custody with
restricted or supervised visits
between the girls and their father.
This is an agenda. She was closedminded then and has remained
closed-minded regarding the
father’s development of any
relationship with his daughters.
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She demonstrated this attitude when
she smiled while saying that she
didn’t think it was so important
when the father and girls did not
get their Christmas visitation in
2001. She demonstrated this
attitude when she did not put the
father’s name on Lauren’s day care
registration information. Finally,
she demonstrated this attitude when
she refused to acknowledge that
Lauren’s problems could have no
other source (such as trauma in the
family prior to the separation or
the hostility between the parents)
than the father and his family.
The mental health professionals who
testified suggested that the
hostility between the parents could
be the cause of Lauren’s problems.
The mother put Lauren, then three,
in therapy and that may not have
been appropriate. Carl Moses and
Jo Lillard testified that Lauren
had “plateaued out” in therapy with
each of them. The mother testified
that when there is no
communication, there are no healthy
children. This Court believes that
statement to be correct and at
least one of the children, Lauren,
is not healthy. The mother did not
look for the true causation for
Lauren’s problems other than to
blame the father.
d.
The younger daughter, Emily (who
was an infant at the time of the
separation) has no difficulties
with her father or the visitations.
e.
Finally, in her testimony the
mother could present no positive
ideas as to how to fix Lauren’s
problems. She felt that granting
the father sole custody was
ludicrous and this court had the
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feeling that her only solution
would be the termination of the
father’s rights. Again, the mother
blamed the father, but could prove
no causation.
9.
The husband shall be solely responsible
for making decisions regarding the
girls’ medical, emotional, educational
and religious needs. However, Emily
shall be enrolled in a 3 day a week
preschool program.
10. While this Court would like to order a
traditional time-sharing schedule for
the mother (i.e. every other weekend and
on weekday evenings) in order for the
mother to see what it was like for the
father, it recognizes the bond between
the girls and their mother. As Dr.
Schilling testified, it doesn’t take a
psychologist to see that there is a
problem here. This is a common sense
case. Since the children have spent so
much time with their mother, it is hard
for them to go elsewhere – especially
when there is unequal involvement with
the parents. Therefore, this Court is
willing to try equal involvement and
time-sharing with the girls spending
alternating weeks with each parent.[3]
11. . . . .
12. A Guardian Ad Litem shall be appointed
for the girls. The Court shall issue an
Order naming the Guardian and outlining
the Guardian’s duties and
responsibilities. The parties shall be
equally responsible for the payment of
the Guardian’s fees.
13. Due to the discrepancy in incomes at the
present time and the equal time-share
schedule, the husband shall pay to the
3
We shall omit the trial court’s detailed time-sharing and holiday timesharing schedules.
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wife child support in the amount of
$600.00 per month beginning July 21,
2003. He shall also maintain health
insurance on the girls and be
responsible for 100% of their
extraordinary unreimbursed medical
expenses unless said payment would
become unreasonable. Each party shall
be responsible for paying the workrelated day care expenses for the
children during the week they have the
children.
14. The parties shall have equal access to
the girls’ medical and educational
records.
15. Neither party shall smoke around the
girls or allow the girls to be exposed
to smoke. Neither party shall drink
alcoholic beverages before or when they
are with the girls and the girls shall
not be exposed to firearms.
16. Each parent shall notify the other of
phone numbers and addresses and shall
provide the other of emergency contact
information when taking overnight out of
town visits with the girls. Each party
shall immediately notify the other of
any medical emergencies.
17. Neither party shall make or allow any
other person to make any negative or
derogatory comments about either parent
or family member. Each party shall do
whatever possible to foster a loving and
positive relationship with the other
parent.
18. Neither party shall videotape or
photo[graph] the girls for the purpose
of litigation unless the party feels
that is absolutely necessary.
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Cindy filed a motion to Alter, Amend or Vacate
pursuant to CR 59.05 regarding the award of sole custody to Jeff
and requested additional findings and a new trial.
The trial
court denied Cindy’s motion on August 15, 2003, and this appeal
followed.
In her brief, Cindy argues that the trial court erred
by not affording joint custody equal consideration in
determining custody, by failing to consider the best interests
of the children pursuant to KRS 403.270(2), and by using its
determination that she would be incapable of future cooperation
in making the custody award.
Furthermore, Cindy asserts that
the trial court erred in relying upon testimony of the custodial
evaluator when the provisions of KRS 403.300 had not been met.
On the other hand, Jeff asserts that the trial court did not
commit any error and that the award of sole custody should be
affirmed.
Our standard of review is set forth in CR 52.01:
In all actions tried upon the facts without
a jury or with an advisory jury, the court
shall find the facts specifically and state
separately its conclusions of law thereon
and render an appropriate judgment. . . .
Findings 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.
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In Moore v. Asente, Ky., 110 S.W.3d 336 (2003), the Supreme
Court of Kentucky addressed this standard, and held that a
reviewing court may set aside findings of fact,
only if those findings are clearly
erroneous. And, the dispositive question
that we must answer, therefore, is whether
the trial court’s findings of fact are
clearly erroneous, i.e., whether or not
those findings are supported by substantial
evidence. “[S]ubstantial evidence” is
“[e]vidence that a reasonable mind would
accept as adequate to support a conclusion”
and evidence that, when “taken alone or in
the light of all the evidence, . . . has
sufficient probative value to induce
conviction in the minds of reasonable men.”
Regardless of conflicting evidence, the
weight of the evidence, or the fact that the
reviewing court would have reached a
contrary finding, “due regard shall be given
to the opportunity of the trial court to
judge the credibility of the witnesses”
because judging the credibility of witnesses
and weighing evidence are tasks within the
exclusive province of the trial court.
Thus, “[m]ere doubt as to the correctness of
[a] finding [will] not justify [its]
reversal,” and appellate courts should not
disturb trial court findings that are
supported by substantial evidence.
(Citations omitted.)
Id. at 354.
With this standard in mind, we shall review the
trial court’s decision in this matter.
We shall first address Cindy’s last argument regarding
the testimony of the custodial evaluator.
Cindy argues that
because Dr. Hartley never issued a report, the trial court was
precluded from relying upon her recommendations regarding
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custody and time-sharing.
Dr. Hartley had left her role as an
evaluator when she agreed, at the request of the parties, to
mediate the 2002 holiday time-sharing, and could not then return
to her role as an evaluator.
Jeff argues that the trial court
did not err in relying upon Dr. Hartley’s recommendations, which
it not appear to even follow.
KRS 403.300 addresses the appointment and use of a
custodial evaluator in custody proceedings:
(1)
In contested custody proceedings, and
in other custody proceedings if a
parent or the child’s custodian so
requests, the court may order an
investigation and report concerning
custodial arrangements for the child.
The investigation and report may be
made by the friend of the court or such
other agency as the court may select.
(2)
In preparing his report concerning a
child, the investigator may consult any
person who may have information about
the child and his potential custodial
arrangements. Upon order of the court,
the investigator may refer the child to
professional personnel for diagnosis.
The investigator may consult with and
obtain information from medical,
psychiatric, or other expert persons
who have served the child in the past
without obtaining the consent of the
parent of the child’s custodian; but
the child’s consent must be obtained if
he has reached the age of 16, unless
the court finds that he lacks mental
capacity to consent. If the
requirements of subsection (3) are
fulfilled, the investigator’s report
may be received in evidence at the
hearing.
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(3)
The clerk shall mail the investigator’s
report to counsel and to any party not
represented by counsel at least 10 days
prior to the hearing. The investigator
shall make available to counsel and to
any party not represented by counsel
the investigator’s file of underlying
date, and reports, complete texts of
diagnostic reports made to the
investigator pursuant to the provisions
of subsection (2), and the names and
addresses of all persons whom the
investigator has consulted. Any party
to the proceeding may call the
investigator and any person whom he has
consulted for cross-examination. A
party may not waive his right of crossexamination prior to the hearing.
In Lewis v. Lewis, Ky., 534 S.W.2d 800 (1976), the Supreme Court
of Kentucky addressed this statute.
There, the trial court
ordered the Department of Human Resources to issue a report
regarding the fitness of the father’s and the mother’s homes for
the child in question.
The trial court received reports from
social workers, but the clerk did not forward copies of the
reports to counsel for either party.
Eight days later, the
trial court awarded custody without having held another hearing
after receiving the reports.
In reversing the judgment awarding
permanent custody, the Supreme Court noted:
Thomas cannot be expected to exercise his
right to cross-examine in the absence of
knowledge of the identity of the
investigators or of the contents of the
reports. Furthermore, he did not waive his
right to cross-examine, since the right may
not be waived prior to a hearing, and no
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hearing was held subsequent to the filing of
the reports. Clearly, the mandate of KRS
403.300(3) has not been followed.
Id. at 802.
Later in Bond v. Bond, Ky.App., 887 S.W.2d 558
(1994), the Kentucky Court of Appeals relied upon the Lewis
decision in holding that the lower court erred when it permitted
a court-appointed social worker to testify without having first
submitted a written report to the court and to counsel.
In the present matter, the parties and the trial court
discussed Dr. Hartley’s role just prior to the trial as well as
at the March 10, 2003, case management conference.
There was no
dispute that Dr. Hartley never issued a report, which would have
caused Jeff and Cindy to spend an additional $2000 in addition
to the money they had already expended for the evaluation
itself.
Furthermore, the parties were in agreement that Dr.
Hartley would be permitted to testify as a witness as to what
she had done in the case.
At the trial, Dr. Hartley testified
regarding the roles she played in the case, as well as to the
results of psychological tests she administered on both Jeff and
Cindy and of her visitation observations.
As a result of her
observations, Dr. Hartley recommended that the trial court order
joint custody with equal rights to both parents.
We agree with Jeff that there has been no violation of
KRS 403.300.
The undisputed fact that Dr. Hartley did not issue
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a final report4 regarding her custodial evaluation is not fatal
in this case, as it was in the Lewis and the Bond cases.
Dr.
Hartley did not testify as an evaluator, but simply as an expert
witness.
Both parties were aware of Dr. Hartley’s
recommendations prior to trial, and Cindy had a sufficient
opportunity to cross-examine her on her methods and
recommendations.
Furthermore, the trial court did not,
routinely or otherwise, adopt Dr. Hartley’s recommendations.
In
fact, the trial court did not order joint custody as per her
recommendation.
Instead, the trial court ordered sole custody
with equal time-sharing.
Therefore, we cannot hold that there
was a violation of KRS 403.300 in allowing Dr. Hartley to
testify at the trial in the matter or that Cindy was harmed in
any way by the inclusion of Dr. Hartley’s testimony.
We shall next address Cindy’s argument that the trial
court erred in allowing Jeff sole custody of Lauren and Emily.
Cindy raised three issues as to this argument, namely that the
trial court failed to consider joint and sole custody equally,
did not consider the best interests of the children, and
improperly used its determination regarding future cooperation
in disallowing her custody.
Cindy first argues that the trial court erred in
failing to give sole and joint custody equal consideration.
4
We
There is some indication in the record that Dr. Hartley had at one point
faxed a brief report to the trial court.
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disagree.
KRS 403.270(5) provides that a “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 interests of the
child.”
In Fenwick v. Fenwick, Ky., 114 S.W.3d 767 (2003), the
Supreme Court of Kentucky reiterated its previous holding that,
“‘joint custody must be accorded the same dignity as sole
custody and trial courts must determine which form would serve
the best interest of the child.’”
Id. at 775, quoting Squires
v. Squires, Ky., 854 S.W.2d 765, 770 (1993).
In its
supplemental decree entered in the present case, the trial court
stated that it “agrees with statements made by the wife that
joint custody will not work in this case due to the total lack
of communication between the parties.”
(Emphasis added.)
After
noting that the decision was a “tough” one to make, the trial
court then decided to award sole custody.
It is clear to this
Court that the trial court considered both sole and joint
custody, and relied at least in part upon Cindy’s testimony that
joint custody was not possible in this case.
Cindy cannot now
argue that the decision to order sole custody was in error, when
she herself argued before the trial court that joint custody
would not work.
We find no error in the trial court’s decision
to order sole custody in this matter.
Cindy next argues that the trial court failed to
consider the factors set forth in KRS 403.270(2) in determining
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custody, but rather only considered their lack of ability to
communicate and cooperate.
We disagree.
In KRS 403.270(2), the Legislature specifically listed
the factors a trial court must consider when determining
custody:
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 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;
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(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.
In Fenwick, the Supreme Court of Kentucky stated that,
“[i]n addition to these statutory considerations, this Court has
noted that the likelihood of future cooperation between the
parents regarding decisions pertinent to raising the child is a
relevant factor in determining whether to award joint custody.”
Fenwick, 114 S.W.3d at 775-76.
The Supreme Court had previously
defined “cooperation” in Squires as a “willingness to rationally
participate in decisions affecting the upbringing of the child.”
Squires, 854 S.W.2d at 769.
We must agree with Jeff that the trial court
considered all of the relevant factors in this case, including
the statutory factors and the ability of the parents to
cooperate.
We note that the trial court included a detailed
summary supporting her ruling in the supplemental decree.
In
his brief, Jeff provides an excellent analysis of the statutory
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factors relevant as they apply to this case.5
First, the trial
court considered the parents’ wishes pursuant to KRS
403.270(2)(a).
We agree with Jeff that although each expressed
a desire for joint custody and the ability to raise their
children together, such was not possible.
In the end, both
indicated a desire for sole custody of the children, which is
what the trial court ordered.
Next, the trial court considered
the interaction and interrelationship between the children and
their parents pursuant to KRS 403.270(2)(c).
While the mental
health professional testified very favorably regarding Cindy’s
parenting skills, it is apparent from the record that Lauren’s
condition deteriorated in the years Cindy acted as her sole
custodian.
Furthermore, the children appeared to do well during
their time with Jeff.
Next, the trial court considered the
children’s adjustment to their home, school and community
pursuant to KRS 403.270(2)(d).
Obviously, both Lauren and Emily
are too young to have become firmly entrenched in school and
community relationships.
Although Lauren is enrolled in
preschool and Emily in daycare, there is nothing in the record
to indicate that their preschool and daycare would change in
light of the custody award.
Furthermore, the trial court
recognized the need to allow both parents equal involvement in
5
A de facto custodian was not involved in this case, nor was domestic
violence alleged. Furthermore, the children were too young express their
wishes regarding custody.
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the lives of their children by ordering equal time-sharing on a
week-by-week basis.
Lastly, the trial court considered the
mental and physical health of the parents and the children
pursuant to KRS 403.270(2)(e).
As the situation stood, Lauren
was clearly having difficulties, and neither parent was without
fault.
Finally, Cindy argues that the trial court abused its
discretion in finding her incapable of further cooperation and
basing custody on this finding.
Although we agree with Cindy’s
citation to Squires that goodwill is not required to award joint
custody, the ability to cooperate is a relevant factor for the
trial court to consider in deciding custody.
Fenwick, Ky., 114 S.W.3d 767 (2003).
See Fenwick v.
In this case, there is
substantial evidence to support the trial court’s finding that
the parties were unable to cooperate.
This is evident in the
sheer number of motions filed during the course of this
litigation as to smoking and alcohol use, time-sharing
schedules, the sale of the marital residence, and the treatment
by mental health professionals.
is not clearly erroneous.
Thus, the trial court’s finding
Furthermore, the trial court did not
abuse its discretion in using this finding to support the award
of sole custody to Jeff.
The case law is clear that the ability
to communicate and cooperate is a relevant factor to be
considered in custody awards.
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For the foregoing reasons, the decision of the Fayette
Circuit Court, Family Branch, awarding sole custody of the minor
children to Jeff is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Michael Davidson
Suzanne Baumgardner
Lexington, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Patricia H. Rabits
Lexington, KY
ORAL ARGUMENT FOR APPELLANT:
Susanne Baumgardner
Lexington, KY
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