ALENA KAYE BOSLEY v. ROBERT WAYNE BOSLEY
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RENDERED:
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-002277-MR
ALENA KAYE BOSLEY
APPELLANT
APPEAL FROM MADISON FAMILY COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 02-CI-00571
v.
ROBERT WAYNE BOSLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Alena Bosley appeals from a decree of the Madison
Family Court, entered September 3, 2003, dissolving her marriage
to Robert Wayne Bosley (Wayne); awarding the parties joint
custody of their son, Isaac; and designating Wayne as Isaac’s
primary residential custodian.
Alena contends that the trial
court failed to make findings substantiating its award of
primary residence to Wayne and that the court erred by making an
award that is not in Isaac’s best interest.
We affirm.
The parties married in January 1999.
from a former marriage.
Each had a child
Alena’s daughter, Taylor, who suffers
from autism, resided with the couple, and Wayne’s daughter,
Brittany, visited regularly.
Isaac was born in November 1999.
Alena filed the petition for dissolution on May 22,
2002, five days after Richmond police, largely on the basis of
information supplied by Wayne, had charged her with having
abused Taylor and Isaac.
At the same time, the Cabinet for
Families and Children filed abuse charges in the Juvenile
Division of the Madison Family Court and took emergency custody
of the children.
The Cabinet placed Taylor initially with her
father and then with Alena’s mother and placed Isaac with Wayne.
During the course of the investigation, Wayne turned over to the
police a video recording, made in September 2001, of Alena
giving malt liquor to the then not-quite-two-year-old Isaac.
In
August 2002, the Madison Grand Jury indicted Alena for seconddegree wanton endangerment, a misdemeanor, and Wayne for aiding
and abetting that crime.
In September 2002, Alena pled guilty
to a reduced charge of disorderly conduct.
The charge against
Wayne was dismissed.
Both of the actions in the Madison Family Court, the
divorce petition and the Cabinet’s juvenile petition, had been
2
continued pending the outcome of the criminal proceedings.
In
October 2002, not long before a scheduled hearing in the
juvenile matter, Alena’s counsel was permitted to withdraw, with
the result that both actions were again continued.
The court
held a final hearing in the divorce in April 2003, issued its
decree in August 2003, and denied Alena’s motion to reconsider
the designation of primary residence in October 2003.
This
appeal then followed.
KRS 403.270 provides that in marriage dissolution
proceedings, courts “shall determine custody in accordance with
the best interests of the child.”
The same standard applies to
the designation of the child’s primary residence.1
As Alena
notes, the statute lists several factors likely to be relevant
to a determination of the child’s best interest and requires
courts to consider them.
These factors include the parties’
wishes, the child’s wishes, other relationships of the child apt
to be affected, and the mental and physical health of all
individuals involved.
As she further notes, CR 52.01 requires
courts trying matters without a jury to enter findings with some
specificity.
Aside from acknowledging that both parties wished to
provide Isaac’s primary residence, the court’s findings in this
case did not specifically address any of the factors listed in
1
Fenwick v. Fenwick, Ky., 114 S.W.3d 767 (2003).
3
the statute.
We agree with Alena’s contention that these
findings are not as specific as the civil rule contemplates.
Nevertheless, unless its failure to make adequate findings is
brought to the trial court’s attention, that failure alone
cannot serve as the basis for relief from the court’s decree.2
Alena did not request more specific findings and so waived her
right to complain about this error.
Her reliance on McFarland
v. McFarland,3 is not availing, for in that case not only did the
trial court make no findings in support of its custody award,
but it also failed to apply the best-interests-of-the-child
standard.
Here, the court did make some supportive findings and
applied the proper standard.
The general rule that a party must
request more specific findings or waive their inadequacy
therefore applies.
Otherwise, this Court may disturb the trial court’s
designation of primary residence only if the court’s findings
were clearly erroneous or the designation amounted to an abuse
of discretion.4
Alena contends that the trial court’s lack of
findings indicates that it did not consider some of the factors
it should have considered and that if those factors are properly
weighed she is entitled to provide Isaac’s primary residence.
2
CR 52.04; Cherry v. Cherry, Ky., 634 S.W.2d 423 (1982).
3
Ky. App., 804 S.W.2d 17 (1991).
4
Cherry v. Cherry, supra.
4
In particular, she contends that Wayne was as culpable
as she was for the alleged abuse of Isaac and thus that the
abuse should not have weighed against her.
She also contends
that Isaac’s integration into Wayne’s household should be
discounted because her former attorney failed to object to
Isaac’s placement with Wayne and then unduly prolonged the
period of temporary placement by withdrawing from the case.
Finally, she contends that the court failed to weigh the
importance to Isaac of his relationships with Taylor and his new
half-sibling5 and with his maternal relatives.
Wayne’s move from
Richmond, site of the marital residence, to Georgetown, she
insists, interferes with those relationships.
We do not agree with Alena’s contention that the trial
court failed to consider the statutory factors.
Although not
well reflected in its findings, the court’s concern for Isaac’s
relationships is apparent from its questions during the hearing.
At only three-and-a-half, Isaac was not old enough to be
questioned regarding his preferences.
And neither party suffers
from a mental or physical disability, although Taylor’s autism
was clearly to be considered.
5
Alena gave birth to a third child, not Wayne’s, during the
pendency of these proceedings.
5
The trial court having considered the proper factors,
it is not for this Court to reweigh the evidence.6
Although, as
Alena maintains, it might have been possible to weigh the
evidence in her favor, the trial court did not abuse its
discretion by declining to move Isaac from a primary residence
where he was established and apparently doing well to one where
Taylor’s special needs as well as those of a new infant already
placed substantial demands on Alena’s time and attention.
Alena’s parenting time, we trust, will enable Isaac to maintain
his relationships with Alena and her family.
The Madison Family Court having neither erred nor
abused its discretion, we affirm its September 3, 2003, decree.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James W. Baechtold
Shumate, Flaherty, Eubanks &
Baechtold, P.S.C.
Richmond, Kentucky
Joan Deaton Grefer
Davis & Neal, P.S.C.
Richmond, Kentucky
6
Cherry v. Cherry, supra.
6
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