RACHEL LABELLE KISER v. ROBERT RALPH KISER
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RENDERED: June 17, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-002525-ME
RACHEL LABELLE KISER
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 00-CI-00336
v.
ROBERT RALPH KISER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE, HENRY, AND TACKETT, JUDGES.
HENRY, JUDGE:
Rachel Labelle Kiser appeals from an order of the
Letcher Circuit Court granting appellee Robert Ralph Kiser’s
motion to modify custody and awarding him primary residential
custody of the parties’ minor child.
We affirm.
The parties were married on May 7, 1998.
They had one
child during the marriage, Robert Ralph Kiser, II, born August
23, 1998.
On August 31, 2000, Rachel filed a petition for
dissolution of marriage.
On May 2, 2001, the circuit court entered a final
decree dissolving the marriage which, among other things,
granted the parties joint custody of the child with Rachel
designated as primary residential custodian.
On October 3, 2001, Robert filed a motion to modify
custody pursuant to Kentucky Revised Statute (KRS) 403.340.
The
motion alleged that Rachel had developed a serious substance
abuse problem which endangered the physical, mental, moral, and
emotional health of the child.
Following a hearing on the matter, on August 20, 2003,
the circuit court entered an order modifying custody so as to
designate the appellee as primary residential custodian of the
infant.
On November 17, 2003, the circuit court entered an
order denying Rachel’s motion to alter, amend or vacate.
This
appeal followed.
In reviewing a child custody determination, we review
the factual findings of the circuit court pursuant to the
clearly erroneous standard. Kentucky Rules of Civil Procedure
(CR) 52.01; Riechle v. Riechle, 719 S.W.2d 442, 444 (Ky. 1986).
Findings of fact are clearly erroneous only if they are
manifestly against the weight of the evidence.
412 S.W.2d 568, 571 (Ky. 1967).
Wells v. Wells,
Since the circuit court is in
the best position to evaluate the testimony and to weigh the
evidence, an appellate court should not substitute its own
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opinion for that of the circuit court.
Reichle, 719 S.W.2d at
444.
Ultimately, a circuit court’s decision regarding
custody will not be disturbed absent an abuse of discretion.
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Abuse of
discretion implies that the circuit court’s decision is
unreasonable or unfair.
684 (Ky. 1994).
Kuprion v. Fitzgerald, 888 S.W.2d 679,
In reviewing the decision of the circuit court,
therefore, the test is not whether the appellate court would
have decided it differently, but whether the findings of the
circuit judge were clearly erroneous or that he abused his
discretion.
Cherry, 634 S.W.2d at 425.
In Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App. 2000).
this Court held that the same criteria apply for a modification
of joint custody as apply to a modification of sole custody.
Thus, in order for there to be a modification of joint custody,
as in all custody cases, the party seeking modification must
first meet the threshold requirements for modification contained
in KRS 403.340.
For a proposed modification occurring earlier than two
years following the initial custody decree, KRS 403.340(2)
provides as follows:
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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.
KRS 403.340(4) provides as follows:
In determining whether a child's present
environment may endanger seriously his
physical, mental, moral, or emotional
health, the court shall consider all
relevant factors, including, but not limited
to:
(a) The interaction and interrelationship of
the child with his parent or parents, his de
facto custodian, his siblings, and any other
person who may significantly affect the
child's best interests;
(b) The mental and physical health of all
individuals involved;
(c) Repeated or substantial failure, without
good cause as specified in KRS 403.240, of
either parent to observe visitation, child
support, or other provisions of the decree
which affect the child, except that
modification of custody orders shall not be
made solely on the basis of failure to
comply with visitation or child support
provisions, or on the basis of which parent
is more likely to allow visitation or pay
child support;
(d) If domestic violence and abuse, as
defined in KRS 403.720, is found by the
court to exist, the extent to which the
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domestic violence and abuse has affected the
child and the child's relationship to both
parents.
The circuit court’s August 20, 2003, Findings of Fact,
Conclusions of Law, and Order included the following:
FINDINGS OF FACT
. . . .
(3) That Petitioner, Rachel Labelle Kiser,
subsequent to the Decree has engaged in
conduct that endangers the minor child’s
physical, mental, moral, and emotional
health and welfare, as shown by clear and
convincing evidence.
(4) That the Court is convinced that the
danger of the child is ongoing and finds
Petitioner’s testimony to the contrary to
lack credibility.
CONCLUSIONS OF LAW
(5) The Respondent has sustained his burden
of proof under KRS 403.340, and is entitled
to modification of custody.
During the hearing on the appellee’s motion to modify
custody, substantial evidence was presented to support the
circuit court’s finding that the child’s environment while in
Rachel’s custody endangered seriously his physical, mental,
moral, or emotional health.
For example, Tonya Addington, a
close neighbor of the appellant, testified regarding occasions
when the child was left alone and unattended in the breezeway of
the apartment while the appellant was asleep or passed out on
the couch in the apartment.
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Witnesses also related numerous instances when the
child was in the apartment while “loud partying” was going on
and individuals were carrying in beer and using bad language.
Further, the resident manager of the apartments testified that
the appellant has received two warning letters for disturbing
the peace and quiet of neighbors, and that the apartment was one
of the worst in terms of cleanliness and damage.
The key word in KRS 403.340(2) is the word "may."
v. S, 608 S.W.2d 64, 65 (Ky.App. 1980).
S
This word does not
connote that the injury to the "physical, mental, moral or
emotional health" must have already occurred or be occurring at
the present time.
Id.
“The potentiality for such danger is the
test and the courts are not required to wait until the damage is
done.”
Id.
There is substantial evidence in the record to support
the proposition that Rachel was pursuing a lifestyle which, if
not already, certainly had the potential of endangering the
physical, mental, moral, or emotional health of the child.
The
record demonstrates that Rachel was following a “partying”
lifestyle, which included loud music, drinking, and
inappropriate language.
Further, there was testimony that the
child had been left unattended in the breezeway of the apartment
structure, which is not appropriate in the case of a child of
such a young age.
In light of the record, we will not disturb
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the finding of the circuit court that the criteria of KRS
403.340(2) and KRS 403.340(4) were met by clear and convincing
evidence and that, consequently, custody should be modified so
as to designate the appellee as the child’s primary residential
custodian.
For the foregoing reasons the judgment of the Letcher
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James W. Craft, II
Whitesburg, Kentucky
Samuel P. Chandler
Whitesburg, Kentucky
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