MEGAN RAE COLLADO v. DRAPER CAVE
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RENDERED: MAY 19, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000878-MR
AND
NO. 2005-CA-001439-MR
MEGAN RAE COLLADO
APPELLANT
APPEALS FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 04-CI-01778
v.
DRAPER CAVE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND GUIDUGLI, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
Megan Rae Collado (hereinafter “Megan”) has
appealed from the April 28, 2005, judgment of the Hardin Circuit
Court awarding her and Draper Cave (hereinafter “Draper”) joint
custody of their minor child, Ocean Shane Burke, and naming
Draper the primary physical custodian.
1
She has also appealed
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
from the July 1, 2005, order denying her motion to set aside the
earlier judgment.
We affirm.
Megan and Draper are the biological parents of Ocean,
born January 1, 1996.
They were never married, and paternity
was established by an Agreed Order entered in the Hardin
District Court later that year.
Pursuant to the Agreed Order,
Draper was to pay child support in the amount of $142 per month.
On September 16, 2004, Draper filed a Petition for
Custody in Hardin Circuit Court, requesting full custody of
Ocean and child support.
In support, he attached his own
affidavit as well as affidavits of his mother, Deborah Cave
(Ocean’s paternal grandmother); his sister, Tosha Cave (Ocean’s
paternal aunt); and his father, Jerry Cave (Ocean’s paternal
grandfather).
These affidavits described in great detail the
problems related to Megan’s upbringing of Ocean, and indicated
that it would be in Ocean’s best interest for Draper to be
awarded custody.
A week later, Draper moved the circuit court
to award him temporary custody.
The circuit court denied this
motion, noting that Megan had not yet been served, but ordered
home evaluations.
On October 26, 2004, after holding a brief
hearing, the circuit court awarded Megan and Draper joint
custody during the pendency of the action, with Draper awarded
primary possession and Megan awarded visitation.
The circuit
court also suspended Draper’s child support obligation.
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Additionally, the circuit court ordered the parties to mediate
the matter, which was ultimately unsuccessful.
The matter proceeded to a final hearing on February
11, 2005.
The circuit court heard testimony from Draper and
Megan, as well as from Deborah, Tosha, and Megan’s sister, Mara
Dickerson.
The Cabinet for Health and Family Services had also
filed reports of its home evaluations conducted in the fall of
2004.
The home evaluation of Draper resulted in the
recommendation that he be given the opportunity to care for
Ocean.
Megan’s home evaluation resulted in the recommendation
that Ocean be returned to her care and that Draper be afforded
visitation rights, but that Deborah not be permitted to visit
with Ocean.
It was also recommended that Ocean receive
counseling and a physical evaluation, and that Megan obtain a
stable residence.
The circuit court entered its Findings of Fact,
Conclusions of Law, Decree and Order on April 28, 2005.2
After
providing lengthy findings of fact, the circuit court looked to
the factors enumerated in KRS 403.270(2) in making its decision
on custody:
These are a few factors under this
statute which the Court must consider in
awarding custody. All of these factors are
designed to determine what is in the best
2
It appears that the judgment was signed on March 31, 2005, but not entered
by the clerk until April 28, 2005.
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interest of the minor child. Here, the
Court believes that both parties, as well as
other individuals in the family, love Ocean
and ultimately desire what is in his best
interest. The Court also believes that both
[Draper] and [Megan], to varying degrees,
have tried to provide a loving home to
Ocean. However, for reasons previously
indicated, the Court believes that [Megan]
has simply not provided Ocean a stable home
environment consistently since his birth.
Therefore, the Court believes from the
evidence that Ocean has more stability with
[Draper] than [Megan]. Although [Draper]
has in the past not adequately provided the
care and nurturing for Ocean, he has
attempted to do so recently. Upon hearing
the evidence as a whole, the Court believes
that [Draper] will provide the more stable
home life for the parties’ minor child,
Ocean.
The circuit court then awarded Megan and Draper joint custody of
Ocean, named Draper the primary physical custodian, and awarded
Megan visitation.
In addition, the circuit court ordered Draper
to undergo drug and alcohol counseling, Megan to obtain
individual counseling, both Draper and Megan to attend parenting
class, and Draper to enroll Ocean in counseling.
Finally, Megan
was ordered to pay child support in the amount of $199.50 per
month.
It is from this judgment that Megan’s first appeal was
taken.
On June 8, 2005, Megan moved the circuit court to set
aside its previous order, asserting that it had considered
evidence outside of the record and had engaged in ex parte
communication with Deborah.
The first item is based on the
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existence of a “post-it” note on Megan’s home evaluation, which
read, “Make sure to read Marie’s notes on this.
take them out of file so parties do not see.”
May need to
The circuit court
conducted a hearing on this motion on June 14, 2005.
During the
hearing, Judge Addington took the opportunity to explain the
circumstances of the “post-it” note in the record and indicated
that she had never spoken to anyone about the case, although
Deborah had contacted her staff prior to the filing of the
Petition and during the pendency of the case regarding Ocean’s
medical card.
Megan’s motion to set aside was denied on July 1,
2005, and this second appeal followed.3
Megan presents two arguments to this Court, namely:
1) that the circuit court erred by granting primary custody to
Draper, and 2) that the circuit court erred by considering
evidence not in the record.
On the other hand, Draper asserts
that the circuit court properly awarded custody to him and did
not consider evidence outside of the record.
The applicable standard of review is set forth in CR
52.01:
In all actions tried upon the facts without
a jury or with an advisory jury, the court
shall find the facts specifically and state
separately its conclusions of law thereon
and render an appropriate judgment. . . .
Findings of fact shall not be set aside
unless clearly erroneous, and due regard
3
This Court consolidated the two appeals by order entered August 10, 2005.
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shall be given to the opportunity of the
trial court to judge the credibility of the
witnesses.
In Moore v. Asente,4 the Supreme Court of Kentucky addressed this
standard, and held that a reviewing court may set aside findings
of fact,
only if those findings are clearly
erroneous. And, the dispositive question
that we must answer, therefore, is whether
the trial court’s findings of fact are
clearly erroneous, i.e., whether or not
those findings are supported by substantial
evidence. “[S]ubstantial evidence” is
“[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.
(Citations omitted.)
With this standard in mind, we shall review the circuit court’s
decisions.
4
110 S.W.3d 336, 354 (Ky. 2003).
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Megan first argues that the circuit court erred in
designating Draper as the primary physical custodian.
She
addressed each of the best interest factors set forth in KRS
403.270(2).
She argues that the circuit court did not properly
take into account that Megan had been Ocean’s primary caretaker
from birth until the action was filed or that she had adequately
provided for him.
Furthermore, she asserts that the circuit
court did not give any consideration to the negative impact his
paternal grandmother had on him, and the lack of relationship
Ocean had with his father prior to the filing of the petition.
Lastly, she points out that no consideration was given to his
adjustment to his school or Draper’s criminal record, but that
the circuit court placed too much emphasis on domestic violence
related to Caesar Collado, Megan’s ex-husband.
each of Megan’s points in her brief.
Draper counters
He also argues that
Megan’s assertions that Deborah was the driving force behind his
bid for custody supports a finding that Deborah had been a de
facto custodian of Ocean.
In KRS 403.270(2), the Legislature specifically listed
the factors a trial court must consider in determining the best
interest of the child when ruling on custody:
The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be given
to each parent and to any de facto
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custodian. The court shall consider all
relevant factors including:
(a)
The wishes of the child’s parent
or parents, and any de facto
custodian, as to his custody;
(b)
The wishes of the child as to his
custodian;
(c)
The interaction and
interrelationship of the child
with his parent or parents, his
siblings, and any other person who
may significantly affect the
child’s best interests;
(d)
The child’s adjustment to his
home, school, and community;
(e)
The mental and physical health of
all individuals involved;
(f)
Information, records, and evidence
of domestic violence as defined in
KRS 403.720;
(g)
The extent to which the child has
been cared for, nurtured, and
supported by any de facto
custodian;
(h)
The intent of the parent or
parents in placing the child with
a de facto custodian; and
(i)
The circumstances under which the
child was placed or allowed to
remain in the custody of a de
facto custodian, including whether
the parent now seeking custody was
previously prevented from doing so
as a result of domestic violence
as defined in KRS 403.720 and
whether the child was placed with
a de facto custodian to allow the
parent now seeking custody to seek
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employment, work, or attend
school.
The circuit court in this case entered extensive
findings of fact, relying upon the reports of the home
evaluations, the affidavits filed with the Petition, and
testimony from the hearing.
With the standards of KRS
403.270(2) in mind, the circuit court determined that although
Megan loved her child, she “has simply not had the ability to
consistently provide Ocean with a stable home environment.”
Although noting that neither parent appeared to have been the
best of parents early on, the circuit court cited to several
factors militating against placing custody with Megan.
Those
factors included Ocean’s exposure to episodes of domestic
violence, his inadequately addressed psychological and emotional
issues, and his lack of basic fundamental health and dental care
for several years.
While the circuit court did not explicitly
address each and every factor in the judgment, the circuit court
nevertheless addressed those factors in concluding that it would
be in Ocean’s best interest to award Draper primary physical
custody.
This determination is supported by substantial
evidence contained in the record, and is therefore not
erroneous.
We note that Megan also presented evidence that
conflicts with that presented by Draper.
However, the circuit
court chose to believe and rely upon the evidence Draper
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presented, and it is not in the province of this Court to
substitute our judgment for that of the fact-finding circuit
court.5
The subject of Megan’s second appeal relates to the
denial of her motion to vacate pursuant to CR 60.02.
On June 8,
2005, Megan moved the circuit court to vacate its judgment,
alleging that it considered evidence outside of the record and
that it engaged in ex parte communication with Deborah.
At the
hearing on the motion, Megan indicated that she had discovered
the “post-it” note in the file and was concerned that the
circuit court had considered some evidence on a document that
had been removed from the record.
In support, she pointed out a
finding of fact on page 2 of the judgment relating to Ocean
being suicidal and the Cabinet recommending therapy as far back
as 2002, information she claimed was nowhere to be found in the
record.6
Regarding the ex parte communication, Megan’s mother,
Lynn, stated that Deborah told her she had spoken to the judge
when no one else was present.
During the June 14, 2005, hearing, the circuit court
itself addressed the concerns Megan raised in her motion.
Judge
Addington stated that she had not communicated with anyone about
5
Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967).
We agree with Draper’s assertion in his brief that Megan should be precluded
from raising an issue regarding the first finding of fact Megan listed in her
brief (that Ocean would come home to an empty house) as she did not point out
and preserve that particular finding either in her motion or during the
hearing.
6
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this case, although she stated that Deborah might have contacted
staff members prior to the filing of the Petition, when she
would have been told to contact an attorney, and during the
pendency of the case regarding Ocean’s insurance/medical card.
In neither instance were the merits of the case discussed.
Regarding the “post-it” note, Judge Addington stated that it by
happenstance was affixed to the home evaluation report, and was
merely communication from a staff member that she had followed
her directions to refer the case to the Cabinet for an
investigation.
Based upon the record of the hearing, we cannot hold
that the circuit court abused its discretion in denying Megan’s
motion to vacate.
Megan did not establish sufficient grounds to
justify vacating the original judgment.
For the foregoing reasons, the judgment of the Hardin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Phyllis K. Lonneman
Dawn Lonneman Blair
Elizabethtown, Kentucky
C. Wesley Durham
Radcliff, Kentucky
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