REBECCA HONRINE v. STEVEN RHODES
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RENDERED: March 11, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002686-MR
REBECCA HONRINE
APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 00-CI-00078
v.
STEVEN RHODES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
VANMETER, JUDGE:
This is an appeal from a judgment entered by
the Martin Circuit Court, Family Court Division, awarding
custody of the parties’ minor child to appellee Steven Rhodes.
For the reasons stated hereafter, we affirm.
1
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.
Steven and appellant Rebecca Honrine are the
biological parents of Erica, who was born in December 1999.
The
parties, who never married, were awarded temporary joint custody
in May 2000, with Rebecca being designated as the residential
custodian.
Steven thereafter regularly paid child support and
exercised visitation rights.
In March 2003 Steven filed a motion seeking a change
of custody, alleging by affidavit that Erica’s health and
welfare would be endangered if she remained in Rebecca’s
custody, and that it would be in Erica’s best interest to be in
Steven’s permanent residential custody.
trial court agreed.
After a hearing the
In an order entered on August 14, 2003, the
court found:
4. Pursuant to this Court’s Order entered
July 28, 2000, the Cabinet for Families &
Children, Martin County Division for
Protection and Permanency was awarded
Temporary Custody of the minor child, due to
the Respondent’s refusal to allow the
Petitioner visitation, as was previously
ordered by this Court.
5. Pursuant to this Court’s Order entered
August 10, 2000, temporary custody of the
minor child with the Cabinet for Families &
Children was terminated, and temporary
custody was returned to the Respondent.
6. The Petitioner is a college graduate,
pursuing a law degree. His wife has a
Master’s Degree and has been accepted to
medical school. They earn approximately
$3,000.00 per month.
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7. While the Respondent has an Associate’s
degree, she only works part-time at a local
dairy bar, earning approximately $500.00 per
month.
8. The Court’s paramount concern is the
best interests of the minor child. The
record in this case, including testimony at
the hearing, will reflect that this
situation is one in which both parties
appear to have a loving and nurturing
relationship with the minor child, however,
the Court is concerned with the Respondent’s
numerous attempts to prevent the Petitioner
from developing a nurturing parent/child
relationship with the minor child, as well
as her numerous attempts to prevent the
Respondent from exercising visitation. Of
further concern to the Court is the fact
that the minor child, more often than not,
has a large amount of “bug bites,” for which
the Respondent previously received
counseling from the Cabinet For Families &
Children as to how to prevent and treat.
Nevertheless, the Respondent continues to
allow the child to reside in an environment
where she is exposed to various types of
insects.
9.
The record also establishes that the
child is “lagging” behind in her grammar,
size, and social skills. This would
indicate to the Court that the Respondent
has not provided the essential parental
attention necessary to ensure that the minor
child’s best interests are first and
foremost, evidenced by the fact that the
child has never seen a pediatrician.
10. The Petitioner is greatly concerned
that if the minor child continues to reside
in her present environment, she will not
develop mentally, educationally, physically,
and socially as she would if he were to be
granted custody, and, has also has testified
of his willingness and ability to provide
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this type of environment and upbringing for
the minor child.
11. After considering the factors set forth
in KRS 403.270, the Court is of the opinion,
and so finds, it is in the best interest of
the minor child that Petitioner be awarded
custody and the Respondent awarded standard
time-sharing.
The court denied Rebecca’s motions to alter, amend or vacate,
and this appeal followed.
First, Rebecca contends that the trial court erred by
following KRS 403.270 and applying the best interests of the
child standard when examining the issue of custody, rather than
following KRS 403.340 and applying the standards applicable to
custody modification.
We disagree.
KRS 403.280 provides in pertinent part:
(1) A party to a custody proceeding may
move for a temporary custody order. . . .
The court may award temporary custody under
the standards of KRS 403.270 after a
hearing, or, if there is no objection,
solely on the basis of the affidavits.
(2) If a proceeding for dissolution of
marriage or legal separation is dismissed,
any temporary custody order is vacated
unless a parent or the child’s custodian
moves that the proceeding continue as a
custody proceeding and the court finds,
after a hearing, that the circumstances of
the parents and the best interests of the
child require that a custody decree be
issued.
(3) If a custody proceeding commenced in the
absence of a petition for dissolution of
marriage or legal separation under KRS
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403.420(1)(a) or (b) is dismissed, any
temporary custody order is vacated.
The statute indicates on its face that a temporary custody order
is a nonfinal order which may be vacated by the trial court.
As
noted in subsection (2), such an order may be followed by a
“custody decree” if required by the child’s “best interests,”
which is the standard set out in KRS 403.270 for determining
custody after consideration of specific named factors.
A
custody decree, by contrast, may be modified only if the court
finds that one of the conditions set out in KRS 403.340(2)
exists, including that the child’s “present environment
endangers seriously his physical, mental, moral, or emotional
health, and the harm likely to be caused by a change of
environment is outweighed by its advantages to him.”
KRS
403.340(2)(c).
Here, the record clearly shows that although Rebecca
was awarded temporary custody in May 2000, the trial court never
made a determination of custody pursuant to KRS 403.270 until
entry of the order now on appeal.
The trial court therefore was
required to determine custody “in accordance with the best
interests of the child” after considering the factors set out in
KRS 403.270(2), and it did not err by failing to determine
custody in light of the modification standards set out in KRS
403.340.
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We also are not persuaded that the trial court erred
by awarding custody to Steven.
A trial court’s findings of fact
may be set aside only if clearly erroneous, with the dispositive
question being “whether or not those findings are supported by
substantial evidence.”2
Substantial evidence is defined as
“[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.3
As stated in Cross v. Clark,4 “[t]he determination of the weight
of conflicting evidence and of the credibility of witnesses
rests exclusively within the province of” the trier of fact, who
“may believe any of the witnesses in whole or in part, and may
accept the testimony of one set of witnesses to the exclusion of
2
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted).
3
Id. at 354 (footnotes omitted) (quoting Black’s Law Dictionary 580 (7th ed.
1999), Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62, 64 (Ky.
1970), CR 52.01, and 7 Kurt A. Philipps, Jr., Kentucky Practice, CR 52.01,
note 55, comment 8 (5th ed. 1955)).
4
308 Ky. 18, 213 S.W.2d 443, 446 (Ky. 1948).
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that of another or the testimony of one witness as against the
testimony of a number of witnesses.”
Here, Steven testified regarding the many bruises and
apparent bug bites which he observed on Erica, and he introduced
into evidence numerous photographs of the child and the exterior
of her maternal grandparents’ home, where she lived with
Rebecca.
He testified regarding his observations of the child,
including his perception that she was somewhat delayed in her
language and social development, and he expressed concern about
the adequacy of the medical and dental care provided by Rebecca.
He compared his and Rebecca’s living environments, urging the
court to conclude that the child would benefit from the
financial, educational and other opportunities which he and his
wife could provide.
Rebecca, on the other hand, introduced
photographs and testimony regarding the adequacy of her home, as
well as evidence to show that Erica had received appropriate
medical care and developmentally was on target, and that a
social services investigation had found no reason for
intervention.
Rebecca disputed Steven’s testimony regarding
Erica’s bruises and alleged bug bites, asserting that the marks
on Erica’s skin resulted from a grass allergy rather than from
excessive bug bites, and that any bumps or bug bites received
appropriate medical attention.
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Regardless of whether the members of this panel might
have reached different conclusions if sitting as the triers of
fact, it is clear that the trial court was entitled to believe
the testimony of any of the witnesses in whole or in part, and
to accord weight to various portions of the testimony as it saw
fit.
See Cross v. Clark.5
Having reviewed the record, we cannot
say that substantial evidence did not support the trial court’s
findings, or that the trial court abused its discretion by
awarding custody to Steven.
The court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lana M. Gresham
Prestonsburg, Kentucky
Valarie H. Scaggs
Leo A. Marcum
Lowmansville, Kentucky
5
Id. 213 S.W.2d at 446.
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