DISELL JAMES POINTER v. MARTHA NICOLE HALL
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RENDERED: MARCH 3, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-000485-MR
DISELL JAMES POINTER
v.
APPELLANT
APPEAL FROM NELSON CIRCUIT COURT
HONORABLE CHARLES SIMMS III, JUDGE
ACTION NO. 04-CI-00125
MARTHA NICOLE HALL
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
TACKETT AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
Disell James Pointer and Martha Nicole
Hall are the parents of a son, Preston, born on May 16, 2003.
Disell appeals from an order of the Nelson Circuit Court
awarding the parties joint custody and designating Martha as the
child’s primary residential custodian.
He alleges that the
circuit court erred when it failed to record an in camera
interview with a child witness; that it erred when it rendered a
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
final custody decision based on a pendente lite hearing; that
the circuit court’s award is not based on the best interests of
the child; and that it erred when it relied on the opinion of an
expert regarding Martha’s psychological condition.
It appears from the Domestic Relations Commissioner’s
findings that hearings were held on May 18, 2004, on June 28,
2004, and the final hearing on September 13, 2004.
Although the
written record indicates that there are video tapes of the
hearings, no transcripts or videos of the hearings are included
in the appellate record and it appears that Disell failed to
file a designation of record as required by CR 75.01.2
It is the
appellant’s burden to ensure that the transcript or record of
the hearing is included in the appellate record.3
We recognize
that when Disell filed his appeal he was not represented by
counsel; absent an appellate record that affords this court full
review, however, we must presume that the DRC accurately recited
the facts and that the missing evidence supports the order.4
And, perhaps because it would be of no avail since we do not
have the video tapes available, neither party’s statement of the
case cites to any portion of the record.
Although clearly this
court has the discretion to strike the briefs for failure to
2
Kentucky Rules of Civil Procedure.
3
Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968).
4
Miller v. Com., Dept. of Highways, 487 S.W.2d 931, 933 (Ky. 1972).
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comply with CR 72.12(4), since this case involves child custody
we will not impose such a harsh sanction and, to the extent
possible, we will review the lower court’s decision.
Disell and Martha met in August 2002, and spent
considerable time together in Disell’s Elizabethtown home.
The
parties never married and after the birth of their son, Disell
moved to Indianapolis to work as a sales representative for
Pfizer Pharmaceuticals.
Martha and Preston moved to Bardstown
to reside with her parents until late September or early October
2003, when they moved into the home Disell had purchased in
Indianapolis.
During the month of January 2004, the parties’
relationship was turbulent and in late January Martha and
Preston returned to Bardstown.
On February 19, 2004, Martha filed a custody petition
in the Nelson Circuit Court seeking joint custody and child
support with herself designated as the primary custodian.
Following the filing of the petition and Disell’s response,
various motions concerning support and visitation were filed and
resolved by separate court orders.
On the date of the final
custody hearing in September 2004, Disell had dismissed his
counsel and was unrepresented.
When she was seventeen, Martha had given birth to
another son, John Tyler, who, because of Martha’s age, lived
during the week with an aunt and uncle and spent the weekends
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with Martha.
This arrangement has continued.
Martha has a
large extended family in Bardstown many of whom testified at the
various hearings and confirmed Martha as a loving and caring
mother.
Testimony from two of Martha’s cousins, who are care-
givers at the Little Angels Daycare where Preston attends,
indicated that Preston is well adjusted and well behaved.
Martha is employed by the Cabinet for Families and
Children as an investigator.
She testified that she is the
primary caregiver for Preston and that when she lived with
Disell he rarely took care of Preston.
She produced a calendar
noting numerous out of town trips and night meetings Disell
attended.
Disell, who is one of 11 children, had spent eight
years in the military before receiving a BS in genetics and
chemistry from Western Kentucky University.
He testified that
Martha is a heavy drinker, that she spent minimal time with John
Tyler, and that she had threatened to kill herself.
He also
testified that he had regularly cared for Preston and had made
arrangements for Preston’s “whole life” and should be awarded
custody.
Although he has a large family, he has little contact
with any of them.
None live in Indianapolis.
Disell suggested
that there is a racist atmosphere in Nelson County and expressed
his view that a biracial child such as Preston should be raised
by a black male.
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Dr. Abby Shapiro, a licensed clinical psychologist,
evaluated Martha’s mental health.
She found Martha to be
truthful and honest, but somewhat defensive.
Clinically, she
found no indication of any psychological problems such as
depression or substance abuse.
The DRC’s unrecorded in camera interview of John Tyler
is an issue raised on appeal; it is, therefore, beneficial to
include in its entirety that portion of the findings referring
to that interview.
The Court did an “in camera” interview
with John Tyler Hall, who stated that he
loved his brother Preston very much. The
witness told the Court that spending the
week with his aunts and uncle, the Hites,
and the weekends with his mother, gave him
the best of both worlds. He appeared to be
an extremely intelligent, outgoing, pleasant
and well adjusted young man.
He testified that he visited his mom on
approximately six occasions while she was
living with Mr. Pointer. During these
visits he was not permitted to sit on the
furniture, was restricted from entering
certain rooms of the house, had to make his
bed in the mornings to suit the Respondent
so that a quarter would bounce on it, and
was made to “pee like a girl” to avoid
making a mess in the bathroom. He stated
that the Respondent was very demanding and
controlling and that he felt uncomfortable
being with him.
The DRC considered all the factors set forth in KRS
403.270 and applied the best interests of the child test.
The
DRC concluded that Martha had been Preston’s primary caretaker
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and that Disell’s primary goal is to keep control of Preston.
Any suggestion of racial bias toward Preston was dismissed as
unfounded.
Also given little credibility was Disell’s
suggestion that Martha was unfit.
He offered no proof other
than accusations that she is incapable of caring for the child
and offered no evidence to contradict Dr. Shapiro’s assessment.
Additionally, the DRC citing the preference to keep siblings
together noted John Tyler’s strong attachment to Preston.5
Considering Preston’s adjustment to his home, school, and
community, the DRC found Martha’s familial and community support
to be preferable to Disell’s lack of such support.
Disell contends that it was reversible error for the
DRC to conduct an in camera interview of John Tyler without
making a record of the interview.6
We agree.
In Schwartz v.
Schwartz,7 the court held that when a child is determined to be a
qualified witness his testimony should be given in the presence
of the parties or their counsel if it is made a part of the
court’s decision.
“A further right of the parties . . . is to
have the testimony of the children, where it may be used as a
basis for the court’s decision, reported so that it may be
5
Howard v. Howard, 307 Ky. 452, 211 S.W.2d 412 (1948).
6
Although Disell state that he objected to an in camera interview of John
Tyler, unfortunately it is impossible to determine if the objection was made
and Disell makes no serious argument on appeal that the child should not have
been interviewed in camera. Both parties agree, however, that the interview
was not recorded.
7
382 S.W.2d 851 (Ky. 1964).
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preserved for appellate review.”8
Following the decision in
Schwartz, the legislature enacted KRS 403.290(1) that states:
The 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.
The statute refers only to the parties’ child in a custody
dispute.
In such cases the courts have taken the view that the
parents have a constitutional right to hear all of the evidence
offered in the case.
As stated in Couch v. Couch:9
In an action concerning custody or
visitation, any 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 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.
Although the interviewed child in Couch was at the center of the
custody dispute, we believe the logic is equally applicable in
8
Id. at 853.
9
146 S.W.3d 923, 925-926 (Ky. 2004)(citations omitted); See also Holt v.
Chenault, 722 S.W.2d 897 (Ky. 1987).
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this case.
The testimony of John Tyler, while not the exclusive
basis for the custody decision, was significant enough that it
made a favorable impression not only as to Martha’s parenting
skills but also left a clear negative impression as to Disell’s
skills.
Repeatedly in the findings, the DRC commented on
Disell’s controlling nature, a trait the DRC found undesirable,
and specifically stated that the finding was supported by not
only Disell’s testimony but also John Tyler’s.
Additionally,
John Tyler’s expression of love for Preston was a stated finding
that supported the custody decision.
The irony of Disell’s argument that the interview
should have been recorded is that ultimately he failed to
include any of the recorded hearings in the record.
Even had
there been a recording, it in all likelihood would not have been
before this court for review.
Nevertheless, we believe that the
constitutional rights implicated when a child is taken from a
parent, even if only for custodial purposes, are significant
enough that the trial court must record or make available the
testimony of any witness, whether a child or otherwise, if it
relies on that testimony when making a custody determination.
This is the only means by which a parent can rebut such evidence
and preserve the record for appellate review.
Based on the
findings of the DRC we find that the interview should have been
recorded and Disell given the opportunity to review that
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testimony and offer rebuttal evidence.
The failure to do so
constitutes reversible error.
Our review of the remaining issues raised is limited
by the lack of a record of the hearings.
Disell objects to the
consideration of the testimony of Dr. Shapiro but fails to point
in the record where the issue was preserved for review.
Moreover, he relies on Dr. Shapiro’s testimony to which this
court has no access.
We find on this issue there was no
reversible error.
Finally, he claims that the DRC’s recommendation was
based on hearings on pendente lite motions and not on a motion
for permanent custody.
He then cites to the testimony at an
October 20, 2004, hearing concerning his motions to hold Martha
in contempt, to strike Dr. Shapiro’s testimony and for emergency
custody when alleged references were made to pending “temporary
motions”.
Again, this court has no reasonable means of
deciphering Disell’s argument.
From the state of the record it
appears that the hearing was on Martha’s petition for permanent
custody and that all parties understood that to be the matter
under consideration.
Because we are remanding the case for the court to
conduct another in camera interview with John Tyler we do not
reach the issue of whether the custody award is supported by the
record.
However, Disell is not entitled to a de novo hearing.
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There having been no other errors that this court finds
reversible, the action taken on remand is limited to a recorded
in camera interview with John Tyler and an opportunity given
Disell to rebut that testimony.
The court shall then enter
written findings of fact, conclusions of law and an order based
on that interview, any rebuttal evidence offered, and the
evidence presented at the prior hearings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Phyllis K. Lonneman
Dawn Lonneman Blair
LONNEMAN, BLAIR, & LOGSDON,
PLLC
Elizabethtown, Kentucky
Larry Langan
Bardstown, Kentucky
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