CRYSTAL LYNN PRESLEY, NOW SMITH V. JIMMY LEE PRESLEY
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February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002024-ME
CRYSTAL LYNN PRESLEY, NOW SMITH
APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE ROBERT I. GALLENSTEIN, JUDGE
CIVIL ACTION NO. 99-CI-00159
V.
JIMMY LEE PRESLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; MINTON, JUDGE; AND MILLER, SENIOR
JUDGE1.
MINTON, JUDGE.
Crystal Lynn Presley (now Smith) and Jimmy Lee
Presley were divorced on January 10, 2001; and Crystal was
awarded sole custody of their only child, a three-year-old
daughter, Page.
1
Crystal now appeals from two orders that
Senior Judge John D. Miller sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and KRS 21.580.
changed this custody order to joint custody and ultimately made
Jimmy Page’s primary residential custodian.
We disagree with
Crystal’s argument that the circuit court applied the wrong
legal standard in modifying custody.
Therefore, we affirm the
circuit court’s modification.
Soon after her divorce from Jimmy, Crystal enlisted in
the U.S. Navy.
She testified that her decision was based on her
desire to find a good job, to finish her education, and to
provide for her child.
As Crystal left for boot camp, she left
Page with her mother, Elizabeth Little.
She petitioned the
district court to designate Elizabeth as Page’s guardian.
Jimmy
was given short notice of the district court petition, but he
appeared at the hearing and objected.
For reasons that are not
disclosed by findings found in this record, the district court
determined that Elizabeth, a convicted felon who had served time
in prison for manslaughter, was a more suitable guardian than
Jimmy.
Bitter conflict immediately erupted between Jimmy and
Elizabeth over Jimmy’s visitation with Page.
On August 6, 2002, Jimmy filed a motion in circuit
court to modify the original custody order.
In support of his
motion, Jimmy and his mother, Shirley Presley, filed affidavits
stating that Jimmy was the more appropriate custodian for Page.
They said Page had not lived with Crystal for over four and a
half months during which time Page had lived with Elizabeth, who
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was a convicted felon.
Another motion from Jimmy requested the
court to hold a contempt hearing to require Elizabeth to show
cause why she should not be held in contempt for failure to
abide by Jimmy’s visitation schedule.
The court responded to Jimmy’s motion with an order
increasing Jimmy’s visitation with Page and directing that all
visitation exchanges take place at the Fleming County Sheriff’s
Office.
The court withheld a ruling on the motion for change of
custody to allow a written response from Crystal.
Several
months later, the circuit court received a letter from the
Captain of the USS George Washington stating Crystal was on a
six-month deployment at sea aboard that ship so she could not
attend a custody hearing.
Citing the Soldiers’ and Sailors’
Civil Relief Act, the Captain requested that proceedings be
stayed until Crystal could be present.
Following this letter, the circuit court ordered, on
November 12, 2002, temporary joint custody by both parents.
The
court further ordered that Page would reside with Jimmy until
Crystal returned to the United States from sea duty.
Nine days
later, the court ordered that Page be returned to Crystal, who
had then returned to the United States.
The court set a hearing
on Jimmy’s motion to change custody to be held on November 25,
2002.
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Following that hearing, the circuit court made a new
custody determination in an order, entered December 10, 2002.
Finding that Crystal had placed Page with a de facto custodian
(Elizabeth Little), the court concluded that under KRS2 403.340,
modification of the original custody order was permissible.
The
court then ordered a modification to joint custody by Jimmy and
Crystal.
Crystal was made primary residential custodian while
Crystal was on “terra firma.”
Page was to reside with Jimmy
whenever Crystal was at sea or whenever Crystal was unable to
have “day-to-day” contact with the child.
On February 10, 2003, the court granted a temporary
change in the December 10 order by changing primary residential
custody from Crystal to Jimmy.
The court’s decision was based
on the fact that Crystal, who was at again away at sea with no
specific return date, had neglected to enroll Page in school.
The court also found that Crystal had failed to abide by the
established visitation schedule.
Six months later, on August 21, 2003, the court
decided that joint custody should continue but that primary
residential custody should permanently be given to Jimmy.
The
court found that Page had been subject to “mind poisoning” while
in Crystal and Elizabeth’s care and that both Crystal and
Elizabeth had made false allegations to the Cabinet for Families
2
Kentucky Revised Statutes.
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and Children and to the Kentucky State Police that Page was
being sexually abused and that Jimmy and his mother were feeding
the child grass instead of food.
The court also found that Page
loved her father very much, that she was receiving stable and
loving care from her father and her paternal grandmother, and
that she was enrolled in a Head Start program.
The court relied
on evidence from Page’s teachers that after spending time with
Crystal and Elizabeth, Page would return to school “really
hateful” and “mouthy.”
Finally, the court stated:
The facts recited above leads the court to
conclude that this child has been tossed
about like a fishing bobber in turbulent
water. While the court is impressed with
and applauds the mother’s efforts to raise
herself on the economic and social ladder by
improving her skills in the military
service, the life of a seagoing navy person
is for most purposes incompatible with the
raising of a small child. This instability
is clearly not in the child’s best
interests.
On September 16, 2003, Crystal filed a motion to amend
the December 10, 2002, and the August 21, 2003, orders to recite
the words “This is a final and appealable order.”
On the same
day, she filed her notice of appeal from both orders.
The
circuit court’s Order Nunc Pro Tunc in response to this motion,
entered September 25, 2003, added the requested language to the
August order but left the December order unchanged.
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At the outset of this appeal, we note that Crystal’s
motion to add the words “final and appealable” to the court’s
orders was unnecessary as to the August order and unavailing to
resuscitate the December order for purposes of appeal.
CR3 54.02
does state that judgments “shall recite that the judgment is
final”; but the rule further states that in the absence of such
recital, the judgment only remains interlocutory if it fails to
“adjudicate[] less than all the claims or the rights and
liabilities of less than all the parties . . . .”
“In other
words, the finality of an order is determined by whether it
grants or denies the ultimate relief sought in the action.”4
Moreover, “[a]n order awarding the custody of a child is final,
although the question of change in custody, if on a showing of a
change in condition, may be entertained at a later date by the
same court . . . .”5
The orders entered by the Fleming Circuit Court on
December 10, 2002, and August 21, 2003, were each final at the
time they were entered, despite the missing incantation “final
3
Kentucky Rules of Civil Procedure.
4
State Farm Mutual Automobile Insurance Company v. Caudill,
136 S.W.3d 781, 783 (Ky. 2003).
5
Marlar v. Howard, 312 Ky. 209, 226, S.W.2d 755, 757 (Ky. 1949); see
also, Louise E. Graham and Hon. James E. Keller, Kentucky Practice:
Domestic Relations Law, §13.1 (2d ed. Vol. 15) (“A judgment awarding
custody is an appealable order, although not a final judgment in the
constitutional sense.”) citing Gates v. Gates, 412 S.W.2d 223 (Ky.
1967).
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and appealable.”
Both orders related to custody of Page and
both orders adjudicated the “ultimate relief” sought by the
parties.
Therefore, we conclude that Crystal’s motion for this
final-and-appealable language was unnecessary; and it had no
effect upon the time for filing her notice of appeal.
So we must conclude that Crystal’s notice of appeal of
the December 10, 2002, order came too late.
The notice was
filed on September 16, 2003, some nine months after notice to
Crystal of entry of the December 10, 2002, order.
CR 73.02(1)
states that “[t]he notice of appeal shall be filed within 30
days after the date of notation of service of the judgment or
order . . . .”
CR 73.02(2) further maintains that “[t]he
failure of a party to file timely a notice of appeal . . . shall
result in a dismissal or denial.”
As stated by the Court in
Electric Plant Board of the City of Hopkinsville v. Stephens,6
“[t]he Rules of Civil Procedure provide a simple, specific,
direct and exclusive method of taking appeals to this Court in
civil cases.
The right of appeal created by statute only exists
upon compliance with certain procedural requirements of the
Civil Rules.”7
Likewise, our Supreme Court has affirmatively
stated that “a tardy notice of appeal is subject to automatic
6
273 S.W.2d 817 (Ky. 1954).
7
Id. at 817, 818.
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dismissal and cannot be saved through application of the
doctrine of substantial compliance.”8
We recognize that an appeal from a custody
modification should be given due consideration and should not be
dismissed lightly, even if a party fails to file the appeal in a
timely manner.
But we cannot disregard the nine-month delay in
filing the notice of appeal.
There is no evidence that the
delay can be attributed to mere clerical or procedural error;
nor do we believe that the delay can be credited to the absence
of the words “final and appealable order.”
Simply put, Crystal
failed to follow the “simple, specific, direct and exclusive”
means of taking appeal dictated by the Rules of Civil Procedure.
Therefore, her appeal from the December 10, 2002, order is
subject to “automatic dismissal”; and we must decline to review
it.
With regard to the second issue, the court’s decision
to award Jimmy primary residential custody, the record reflects
that temporary primary custody was initially awarded to Jimmy on
February 3, 2003.
Crystal argues that the temporary order was
erroneously entered because “there was no change of condition
between the time of the implementation of the courts [sic] order
of December and it’s [sic] temporary order of February, [sic]
8
Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc.,
37 S.W.3d 713, 716-717 (Ky. 2000).
-8-
2003 . . . .”
We disagree.
A motion for temporary custody need
only be accompanied by an affidavit “setting forth the facts
supporting the requested order.”9
If a party objects, a hearing
must be held; but if no objection is filed, “the court may award
temporary custody on the basis of the affidavits alone . . . .”10
Although both Jimmy and Shirley filed affidavits, there is no
indication that Crystal filed any objections to the motion for
immediate primary custody.
Therefore, the court was acting
within its province when it granted Jimmy temporary primary
custody based on the facts stated in the affidavits.
Crystal further argues that the August 21, 2003, order
erroneously awarded Jimmy permanent primary residential custody.
Jimmy’s request for primary custody was made on January 8, 2003.
In support of his request, Jimmy stated that Crystal failed to
abide by the court’s visitation schedule and that Crystal’s
“persistent actions in denying [Jimmy] his visitation rights
with his minor daughter, has and is causing emotional damage to
the child, and clearly is not in the best interest of the
child.”
The reason for Jimmy’s motion stemmed from an incident
at the beginning of January 2003.
Jimmy’s mother and father
drove to Norfolk, Virginia, from their home in Kentucky, to pick
up Page for a scheduled visit.
9
Graham, supra, at §21.2.
10
However, upon their arrival,
Id.
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Crystal claimed Page had a cold and refused to allow the child
to see her grandparents or to leave with them.
Crystal claims that although a hearing was held on
August 8, 2003, the court failed to make the “threshold
finding[s]” required before custody may be modified.
Specifically, Crystal argues that there was no “specific finding
that the child’s present enviornment [sic] endangers seriously
her physical, mental, moral, or emotional health and that the
harm likely to be caused by a change of environment is
outweighed by it’s [sic] advantages to her.”
We disagree.
In making this argument, Crystal relies on
KRS 403.340(2).
Her reliance on this statute is misplaced.
KRS 403.340(2) states:
No motion to modify a custody decree shall
be made earlier than two (2) years after its
date, unless the court permits it to be made
on the basis of affidavits that there is
reason to believe that:
(a)
The child’s present environment may
endanger seriously his physical,
mental, moral, or emotional health; or
(b)
The custodian appointed under the prior
decree has placed the child with a de
facto custodian.
We agree that this standard was proper for the original
modification made by the court in December 2002.
The initial
change in custody was made before the running of the two-year
period cited in KRS 403.340(2) and, therefore, was subject to a
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stricter standard.
But since the original custody decree was
entered on January 10, 2001, the August 2003 order came well
after the two-year period.
Thus, KRS 403.340(3)(a)-(f), rather
than KRS 403.340(2), provides the proper statutory standard for
the August modification.
That section reads:
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 agrees to the
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 the
child with a de facto custodian.
The relevant factors set forth in KRS 403.270(2), referenced in
subsection (c) of KRS 403.340(3), are as follows:
(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;
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(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;
Because a child cannot simultaneously reside in two
homes, joint custody decrees often require the court to
designate one parent as a “primary residential custodian.”11
The
term is generally interpreted to indicate the party “with whom
the child will primarily reside.
In such situations, the other
parent is awarded what is referred to as ‘visitation,’ ‘timesharing,’ or ‘parenting time.’”12
Joint custodians share major
decision-making authority; however, the primary residential
custodian is necessarily given greater autonomy over day-to-day
child-rearing decisions.
Because of this, “a trial court must
again consider the child’s best interests in connection with its
decision to designate one of the parties as the primary
11
Fenwick v. Fenwick, 114 S.W.3d 767, 778 (Ky. 2003).
12
Id. at 779.
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residential custodian.”13
Likewise, “[b]ecause . . . joint
custody is itself a custody award . . . any modification must
come within the purview of KRS 403.340 . . . .”14
After reviewing the videotape from the August 2003
hearing and reading the entirety of the record, we believe the
trial court properly evaluated the factors set forth in
KRS 403.340 and KRS 403.270 in determining that Jimmy should
have primary residential custody of Page.
At the hearing,
Jimmy, Crystal, and Shirley testified, along with Page’s Head
Start teacher, Crystal Applegate, and the social worker charged
with investigating the claims of child abuse, Mary Claire Moon.
The testimony of each of the witnesses was duly noted by the
circuit judge and taken into consideration in rendering the
final order.
The court determined that Page loved her father and
was receiving stable and loving care in his home; that she was
enrolled in school and had demonstrated good progress; that she
was a “happy, bright and well-adjusted child”; that after
visiting with her mother and maternal grandmother, Page was
often “hateful” and “mouthy”; that Elizabeth, a convicted felon,
had “stood at every turn of the road . . . to exacerbate the
differences between the parties”; that unsubstantiated charges
13
Id.
14
Id. at 783.
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of child abuse had been made to the authorities by Crystal and
Elizabeth; and that “mind-poisoning” and “spite” had “obviously
occurred in the mother’s home.”
We believe that this evidence sufficiently satisfies
the “threshold” findings required for modification.
The trial
court obviously found that Jimmy, who had already been awarded
temporary primary residential custody, was providing the child
with a safe and stable home environment and that Page was
interacting well with her father and paternal grandmother.
The
evidence introduced at the hearing also provided sufficient
proof that Page was well adjusted to her home and school
environments and that changing Page’s current status could cause
her harm.
The court also indicated that allowing Page to live
with Crystal and Elizabeth could be detrimental to her emotional
health.
Evaluating these factors as a whole, the court
determined it was in the best interest of Page to live primarily
with her father.
This decision was supported by the evidence.
Because we believe the court made the requisite
findings and that the award of primary residential custody to
Jimmy was proper, we affirm the decision of the Fleming Circuit
Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas F. Towles, Esq.
Georgetown, Kentucky
Donald A. Maze, Esq.
Owingsville, Kentucky
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