DELORES ANN LOESCH v. WAYNE MICHAEL LOESCH
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RENDERED: APRIL 29, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002495-ME
DELORES ANN LOESCH
(N/K/A FREEMAN)
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
CIVIL ACTION NO. 96-CI-00276
v.
WAYNE MICHAEL LOESCH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
McCracken
Family
Court
Delores Ann Loesch appeals from a
order
that
granted
motion to modify custody of their son.
her
ex-husband’s
Delores argues that the
family court erred in failing to make a record of a private
interview it conducted with the child, and in determining that
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
it was in the child’s best interest for the father to assume the
role of primary custodian.
Delores
and
Wayne
Michael
Loesch’s
marriage
was
dissolved in 1996. Shane, the child who is the subject of this
appeal, was born in 1991.
Under the terms of the decree of
dissolution, Delores was granted sole custody of Shane, while
Wayne
was
granted
liberal
visitation
rights.
At
some
point
following the dissolution, Delores informed Wayne that she and
Shane
were
moving
to
Florida.
Wayne
relocated
to
Midway,
Alabama, in order to be closer to Shane.
About three months
later,
back
however,
Delores
and
Shane
moved
to
Kentucky.
Wayne, who has remarried, still lives in Alabama, approximately
a sixteen-hour drive from McCracken County.
He works as a truck
driver and is at home only on weekends.
Delores
second
husband,
also
David
remarried.
Her
Freeman,
troubled.
was
relationship
She
with
and
her
Shane
moved at least nine times, and Shane attended four different
schools during a seven-year period.
“kicked them out” of his mobile home.
eventually ended in divorce.
On one occasion, Freeman
The marriage to Freeman
Shane experienced serious academic
and disciplinary problems at school.
He was also involved in
fights with other children on the school bus and at the mobile
home park where he lived with his mother.
Delores contacted
Wayne to discuss having Shane evaluated for attention deficit
-2-
hyperactivity
father.
disorder
Wayne
during
agreed,
records to him.
and
Shane’s
Delores
summer
visit
delivered
with
Shane’s
his
school
Wayne claimed to be shocked by what he found in
the school records. In August 2003, Wayne filed a motion to
modify custody of Shane.
The case came before the family court for a hearing on
October 20, 2003.
On September 30, 2003, Delores had filed a
“Motion to Interview Child in Chambers” in which she asked the
court to interview Shane “to ascertain his wishes as to any
modification
conclusion
request
of
of
for
the
the
an
current
October
interview.
custody
20
arrangement.”
At
the
repeated
her
hearing,
Delores
judge
accordingly
The
Shane in chambers for approximately five minutes.
spoke
with
Neither party
nor their attorneys were present at the interview.
When the
interview was over, the judge reported that she had asked Shane
about domestic violence in his home.
In prior testimony Delores
had stated that Shane had heard verbal abuse during the course
of her relationship with Freeman.
The judge said that Shane had
told her he had also witnessed domestic violence between Delores
and Freeman.
Delores then acknowledged that she had been pushed
or shoved by Freeman.
The judge also reported that the only
other information she could glean from Shane was that his mother
was nice to him and that he did not want a change in custody.
-3-
An order was entered on October 24, 2003, granting
Delores and Wayne joint custody of Shane.
Wayne was designated
as the primary and residential custodian.
Delores was granted
secondary custody and liberal visitation rights.
This appeal
followed.
Delores contends that the court’s failure to record
the interview with Shane was reversible error under Kentucky
Revised Statutes (KRS) 403.290(1), which states that in child
custody proceedings,
[t]he
court
may
interview
the
child
in
chambers
to
ascertain the child's wishes as to his custodian and as to
visitation. The court may permit counsel to be present at
the
interview.
The
court
shall
cause
a
record
of
the
interview to be made and to be part of the record in the
case.
Although we agree that the court should have recorded
the interview with Shane, we do not agree that the failure to do
so was an error that merits reversal of the custody order.
Our
decision is based on two considerations: first, the detailed
account provided by the court of the interview with Shane was
sufficient
recorded;
to
and
meet
second,
the
the
statutory
interview
requirement
with
Shane
that
was
it
be
not
the
principal factor underlying the court’s decision to modify the
custody arrangements.
-4-
The record shows that the judge immediately reported
the contents of her brief conversation with Shane to the parties
upon her return to the courtroom.
Delores made no request at
any time for a mechanical recording of the interview, nor did
she challenge what Shane said in the interview.
Under our case
law, the record of the interview thus provided by the court was
sufficient to fulfill the requirements of the statute.
clearly
distinguishable
from
the
situation
in
It is
Schwartz
v.
Schwartz,2 a case that predates the statute, and in which the
only account in the record of an in camera interview with the
children
was
“[a]t
this
children in his chambers.”3
time
the
Judge
sees
the
Schwartz
The Schwartz court stressed that if
the testimony of the children was used at least in part as a
basis for the court’s decision regarding custody, the testimony
should be reported in order to preserve it for appellate review.4
In
this
case,
the
judge’s
account
of
the
interview
was
sufficiently detailed and thorough to preserve its contents for
our review.
Furthermore, the court did not rely primarily on the
interview
with
Shane
in
making
its
custody
modification
decision.
In Holt v. Chenault,5 the Kentucky Supreme Court held
that it was impermissible for a court to modify a prior custody
2
3
4
5
382 S.W.2d 851 (Ky. 1964).
Id. at 853.
Id.
722 S.W.3d 897 (Ky. 1987).
-5-
decree based primarily on the wishes of the child that were
disclosed during a sealed in camera interview.6
Shane’s wishes
were not the primary factor underlying the court’s decision in
this case; indeed, Shane expressed the desire to remain with his
mother.
The
reasons
Kentucky
underlying
the
Supreme
Court
requirement
recently
that
summarized
the
such
interviews
with
or
visitation,
any
children be recorded:
In
an
action
concerning
custody
procedure whereby the trial court prohibits disclosure of
the transcript of a child’s interview to the parties raises
significant
due
process
questions.
The
parties
are
entitled to know what evidence is used or relied upon by
the trial court, and have the right generally to present
rebutting evidence or to cross-examine unless such right is
waived.
If a trial court accepts and acts upon statements
made by the child during the in camera interview, it is
manifestly unfair not to record and disclose the contents
of the interview in order to provide an opportunity for
rebuttal.7
The contents of the interview with Shane were fully
disclosed, and Delores was provided an opportunity to rebut his
remarks, which she could not.
6
7
She instead admitted that her
Id. at 898.
Couch v. Couch, 146 S.W.3d 923, 925 (Ky. 2004).
-6-
prior testimony had been incomplete in regard to the issue of
domestic violence.
We conclude that the family court’s failure to record
by mechanical means the interview with Shane was not a material
procedural error,8 and therefore does not warrant reversal of the
court’s decision.
Delores’ second argument concerns Wayne’s employment
as an over-the-road trucker who is only at home on weekends.
Delores contends that Wayne’s wife, Shane’s stepmother, will be
her
son’s
primary
custodian
on
weekdays,
and
that
the
court
order has effectively placed Shane in the custody of a nonparent.
Our
standard
when
reviewing
a
child
custody
determination is whether the trial court’s findings of fact are
clearly erroneous.9
Findings of fact are clearly erroneous if
they are manifestly against the weight of the evidence.10
A
trial court’s decision regarding custody will not be disturbed
8
Ky. R. Civ. Proc. (CR) 61.01 provides, in relevant part, that: “[N]o error
or defect in any ruling or order or in anything done or omitted by the court
. . . is ground for granting a new trial or for . . . vacating, modifying or
otherwise disturbing [an] order, unless refusal to take such action appears
to the court inconsistent with substantial justice. The court at every stage
of the proceeding must disregard any error which does not affect the
substantial rights of the parties.”
9
See CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
10
Wells v. Wells, 412 S.W.2d 568, 570 (Ky. 1967).
-7-
absent an abuse of discretion.11
Abuse of discretion implies
that the trial court’s decision is unreasonable or unfair.12
On the issue of Wayne’s work schedule, the court order
noted as follows:
The Court has heard nothing to indicate the child would not
be
in
a
better
environment
to
live
with
his
father.
Although the father is an over-the-road truck driver, he
will be home every weekend, and he can influence the child,
as the child will be living in his household even when he
is out of town.
We have reviewed the record and have determined that
these
findings
by
the
court
are
not
manifestly
against
the
weight of the evidence and therefore are not clearly erroneous.
Substantial
evidence
was
offered
to
show
that
Shane
was
exhibiting severe social and academic problems while in Delores’
custody.
These included poor grades, physical violence directed
at other children, particularly younger girls, and disciplinary
infractions
at
suspension.
the
benefits
school
that
were
serious
enough
to
merit
Based on the evidence, the court’s decision that
of
placing
Shane
in
his
father’s
primary
residential custody outweigh the effects of his father’s absence
during the week was neither unfair nor unreasonable.
11
12
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
-8-
For
the
foregoing
reasons,
the
custody
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffery P. Alford
Paducah, Kentucky
John T. Reed
Paducah, Kentucky
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order
is
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