LAURIE McDONALD v. DIANA KOHLER AND JOHN KOHLER
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RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002321-ME
LAURIE McDONALD
v.
APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 01-CI-00201
DIANA KOHLER AND
JOHN KOHLER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
BUCKINGHAM, JUDGE:
Laurie McDonald appeals from an order of the
Livingston Circuit Court concerning the custody and visitation
of her daughter, L.Q.
The child is currently in the custody of
McDonald’s mother, Diana Kohler, and her stepfather, John
Kohler, who live in Georgia.
Finding no indication that the
circuit court abused its discretion in this case, we affirm.
L.Q. was born on November 11, 1999.
She was neglected
and abandoned by her father, and was removed from McDonald by
the Cabinet for Families and Children (CFC) in Kentucky based on
a determination of neglect and abuse resulting from McDonald’s
alcohol problems.
L.Q. was subsequently returned to McDonald
for a period of two months, only to be removed again by CFC in
September 2001.
The court awarded the Kohlers permanent custody
of L.Q. on April 2, 2002.
Although the court awarded custody to the Kohlers, it
ordered that McDonald have visitation.
Because of the friction
between the Kohlers and McDonald, visitation has been a problem.
Also, the Kohlers moved from Kentucky to Marietta, Georgia, in
April 2003 in order to care for Mr. Kohler’s father who had
suffered a stroke.
This led to additional difficulties with the
visitation arrangement.
In November 2003, McDonald filed a motion seeking to
modify custody in her favor.
In response, the Kohlers filed a
motion to dismiss the case or transfer it to Georgia.
In
January 2004, the court entered an order denying both McDonald’s
motion to modify custody and the Kohlers’ motion to dismiss or
transfer.
Further, the court modified McDonald’s visitation to
allow her one long weekend a month, designated holidays, and
four weeks in the summer.
Both sides appealed from the order.
After the circuit court’s January 2004 order and while
the issues addressed therein were before this court on appeal,
the Kohlers made L.Q. available for visitation in February,
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March, and April of 2004.
From May to August, however, the
Kohlers did not make L.Q. available for visitation.
In part,
this was the result of the Kohlers’ discovery of head lice and
ringworm following L.Q.’s April visit with McDonald.
In
addition, the Kohlers were advised by two psychologists, as well
as by employees with Georgia’s counterpart to Kentucky’s CFC,
not to make L.Q. available for visitation until allegations of
abuse and neglect could be resolved.
As a result, McDonald filed a motion seeking to hold
the Kohlers in contempt for failing to make L.Q. available for
visitation.
custody.
McDonald also filed another motion to modify
In response, the Kohlers again filed a motion
challenging the jurisdiction of Kentucky courts over the matter.
Further, the Kohlers filed a motion seeking to modify
visitation.
These motions came before the circuit court for a
hearing on August 25, 2004.
Noting that prior orders in the
case were presently on appeal, 1 the circuit nonetheless heard the
motions since they involved new issues concerning custody and
visitation.
The court denied the motion to hold the Kohlers in
contempt, finding that they had acted “erroneously yet in good
faith” in relying on the opinion of a psychologist that to bring
1
Shortly after the court entered its final order in the case sub judice, a
panel of this court rendered an opinion affirming the court’s order entered
in January 2004. See 2004-CA-000337-ME and 2004-CA-000684-ME.
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L.Q. to Kentucky for visitation would endanger her emotional and
psychological well-being.
The court concluded that the Kohlers’
behavior was not contemptuous.
The court also denied the
Kohlers’ motion challenging its jurisdiction to hear the case.
After considering the evidence, the court denied
McDonald’s motion to modify custody.
Noting the applicable
legal requirements for a change of custody under these
circumstances, the court found that McDonald “failed to make
this case by a preponderance of the evidence.”
Concerning the issue of visitation, the Kohlers had
previously made L.Q. available to McDonald in Kentucky so that
she could exercise her visitation rights.
In their motion to
modify visitation, however, they moved the court to require
McDonald to exercise visitation under their supervision in
Georgia.
The court found the evidence to be overwhelming that
to bring L.Q. from Georgia to Kentucky for visitation would be
emotionally harmful to her.
Therefore, the court granted the
Kohlers’ motion to modify visitation.
This appeal by McDonald
followed.
McDonald first argues that the circuit court erred in
not granting her motion to modify custody.
In support of her
argument, McDonald states that the Kohlers consistently and
without good cause denied her visitation.
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In addition, she
claims the Kohlers moved to Georgia less than three weeks after
she was awarded visitation and that their relocation to another
state violates the spirit of the custody modification statute.
She maintains that the court declined to follow, or at least
declined to address, KRS 2 403.340(4) which required the court to
consider the mental and physical health of all individuals
involved.
Broad discretion is vested in the trial court in
making custody determinations.
See Futrell v. Futrell, 346
S.W.2d 39 (Ky. 1961), and Grider v. Grider, 254 S.W.2d 714, 715
(Ky. 1953).
“[I]n reviewing the decision of a trial court the
test is not whether we would have decided it differently, but
whether the findings of the trial judge were clearly erroneous
or that he abused his discretion.”
423, 425 (Ky. 1982).
Cherry v. Cherry, 634 S.W.2d
Further, the court in Cherry concluded
that it would “not interfere with the action of the trial court
unless there has been an abuse of discretion.”
Id.
We conclude that the trial court did not abuse its
discretion in denying McDonald’s motion to modify custody.
As
noted by the Kohlers, missed visitations alone cannot serve as
grounds for modifying custody.
2
See KRS 403.340(4)(c). 3
Further,
Kentucky Revised Statutes.
3
McDonald attempted to rely on visitation issues occurring prior to January
2004. These issues were addressed by the court in prior orders. As such,
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the court did not abuse its discretion in determining that the
Kohlers had acted “erroneously yet in good faith” in denying
visitation to McDonald.
Also, the court found no evidence of a change since
the January 2004 order that would indicate L.Q.’s present
custody arrangement posed a substantial risk of physical,
mental, moral, or emotional growth.
Rather, there was abundant
evidence that any emotional or psychological problems suffered
by L.Q. arose in connection with her visitation in Kentucky with
McDonald and not from her custody arrangement with the Kohlers
in Georgia.
McDonald also argues that the court failed to
specifically consider the physical and mental health of the
Kohlers prior to ruling on her motion to modify custody.
refers to KRS 403.340(4)(b) in this regard.
She
She points to the
fact that the court never ruled on the guardian ad litem’s
motion to require the parties to undergo mental evaluations.
The record indicates that the Kohlers objected to such
an evaluation, and one of the psychologists testified that he
saw no need for them to be evaluated.
Because the court entered
its final order without requiring the Kohlers to be evaluated,
we assume the court did not find sufficient grounds to support
they cannot serve as a basis for modification of custody.
403.340(3).
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See KRS
the motion.
Further, as neither McDonald nor the guardian ad
litem sought further findings on this matter, we find no error
in the court’s action.
See CR 4 52.04; Whicker v. Whicker, 711
S.W.2d 857, 860 (Ky.App. 1986).
McDonald’s second argument is that the circuit court
erred in granting the Kohlers’ motion to modify visitation.
In
support of her argument, she implies that the court should not
have relied so heavily on the testimony of out-of-state child
psychologists.
She also contends that “common sense dictates
that denying visitation rights between a four year old child and
her natural mother seriously endangers the child’s mental or
emotional health.”
Matters involving visitation rights are held to be
within the discretion of the trial court.
S.W.3d 521 (Ky.App. 2000).
Drury v. Drury, 32
Furthermore, as with the issue of
custody modification, we will not disturb the decision of the
trial court absent an abuse of discretion.
See Cherry, 634
S.W.2d at 425.
KRS 403.320(3) states that “[t]he court may modify an
order granting or denying visitation rights whenever
modification would serve the best interests of the child; but
the court shall not restrict a parent’s visitation rights unless
it finds that the visitation would endanger seriously the
4
Kentucky Rules of Civil Procedure.
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child’s physical, mental, moral, or emotional health.”
When the
issue involves the visitation of a natural parent, the statute
specifies that “[a] parent not granted custody of the child is
entitled to reasonable visitation rights unless the court finds,
after a hearing, that visitation would endanger seriously the
child’s physical, mental, moral, or emotional health.”
KRS
403.320(1).
Again, we conclude that there was considerable
evidence to support the court’s ruling.
testified to this effect. 5
Two psychologists
Further, there was evidence that L.Q.
learned the process for rolling a marijuana cigarette during her
time at the McDonald residence.
In fact, the Kentucky State
Police had discovered marijuana in the McDonald residence on a
prior occasion.
Finally, the record indicates L.Q. had made statements
concerning inappropriate touching, physical abuse, and neglect
while in McDonald’s care.
The court determined that these
allegations were under investigation and need not be resolved
during that proceeding.
The court nevertheless was concerned
with whether the allegations were true, L.Q. was making them up
5
McDonald mentions in her brief that the court never ruled on the guardian ad
litem’s motion to quash the testimony of one of the psychologists. However,
she makes no argument as to why this testimony was not competent and
relevant. Furthermore, the objection to the testimony was made during a
deposition and was never presented to the court. Thus, any error in this
regard was not preserved.
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on her own, or L.Q. was being coached to say things that never
occurred.
In addition to requiring McDonald to exercise her
visitation rights with L.Q. at the Kohler residence in Georgia,
the court further conditioned visitation on McDonald’s agreement
to enter “con-joint” therapy with her mother and the child.
The
court noted that it intended “to establish standard visitation
once the Respondent had shown her good faith and intentions by
participating in this [sic] sessions, and after said sessions
have borne enough fruit to justify further modification of
visitation.”
Considering all the evidence, we find no abuse of
discretion in the court’s granting of the Kohlers’ motion to
modify visitation.
McDonald’s third argument is that the circuit court
was predisposed, if not prejudiced, when it made its decision in
this case.
McDonald cites a statement made by the court to the
parties prior to hearing all testimony.
The portion of the tape
cited by McDonald in her brief offers no support for her
argument.
Further, the statements made by the court at the
conclusion of evidence on August 25 and at the conclusion of all
the evidence on August 26 do not support the contention that the
trial judge had either prejudged the case or would not consider
the evidence presented.
To the contrary, the judge’s statements
make it clear that he would consider all the evidence presented
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and would decide the issues based on the applicable law.
In
short, we conclude that McDonald’s argument in this regard is
without merit.
The order of the Livingston Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Stuart C. Peek
Smithland, Kentucky
Lisa A. DeRenard
Benton, Kentucky
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