DAVID ALAN HARNISH v. BARBARA KAY HARNISH
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001039-ME
DAVID ALAN HARNISH
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE JOHN W. MCNEILL, III, JUDGE
ACTION NO. 02-CI-00302
v.
BARBARA KAY HARNISH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ACREE, SCHRODER, AND VANMETER, JUDGES.
ACREE, JUDGE:
David Alan Harnish (David) appeals from an April
20, 2005, judgment1 of the Mason Circuit Court awarding sole
custody of the parties’ three minor daughters to Barbara Kay
Harnish (Barbara) and granting David visitation in accordance
with the 19th Judicial Circuit Visitation Schedule.
The judgment
from which this appeal is taken was entered pursuant to our
1
Although it is denominated “Findings of Fact, Conclusions of Law and Order
Pursuant to Appellate Review,” the order from which this appeal is taken is a
final judgment as defined by Kentucky Rules of Civil Procedure (CR) 54.01.
previous remand of this case.2
For the reasons stated herein, we
affirm.
David and Barbara married on May 2, 1987.
three minor children.
They have
Barbara initiated the underlying action
by filing a petition for legal separation in the Mason Circuit
Court.
The petition was later amended to one for a decree of
dissolution of marriage.
On September 24, 2003, the circuit court entered
“Findings of Fact, Conclusions of Law, and Judgment of
Dissolution and Award of Child Custody, Division of Property.”
Sole custody of the parties' three children was awarded to
Barbara and visitation was granted to David.
David and Barbara subsequently filed motions to alter,
amend or vacate the judgment and David filed a motion for a new
trial.
Kentucky Rules of Civil Procedure (CR) 59.05 and CR
59.01.
David argued the judgment was insufficient as it failed
to make findings of fact as required by CR 52.01.
By order
entered November 24, 2003, the circuit court denied David's
motions.
David appealed the November 24, 2003, decision to this
court on grounds, inter alia, that the circuit court failed to
make findings of fact supporting the original award of sole
custody to Barbara.
2
Opinion, Harnish v. Harnish, No. 2003-CA-002687-ME (Ky.App. February 25,
2005).
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On February 25, 2005, this court entered an opinion
vacating the custody award on grounds the circuit court failed
to make specific findings of fact supporting that award.
The
case was remanded to the Mason Circuit Court for proceedings not
inconsistent with that opinion.
On April 20, 2005, the Mason Circuit Court entered its
Findings of Fact, Conclusions of Law and Order Pursuant to
Appellate Review.
That judgment again awarded sole custody of
the parties’ three daughters to Barbara and granted David
visitation according to the 19th Judicial Circuit Visitation
Schedule.
This appeal followed.
David first argues that proper application of Troxel
v. Granville3 to these facts requires reversal of the Mason
Circuit Court judgment.
We disagreed with this argument when
David presented it in his previous appeal and we disagree with
it now.
In his prior appeal of this case, David made an
identical argument to this court and we held:
“The facts of
Troxel [which addressed visitation rights of non-parents under a
Washington statute] are obviously distinguishable from the case
3
530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000).
-3-
sub judice. . . .
We, thus, believe David’s argument is without
merit.”4
This court is no less bound by its previous ruling in
the case than was the circuit court upon remand.
Consequently,
we are precluded by the law of the case doctrine from
reconsidering this argument.5
For this reason alone David’s
argument would be without merit.
However, citing Troxel and Fenwick v. Fenwick,6 David
also urges this court to establish a rule that custody never be
awarded solely to one parent absent a finding either that the
other parent is unfit or that joint custody will endanger the
child.
Appellant’s Brief p. 13.
We decline to do so.
David’s approach is in direct conflict with KRS7
403.270(2) which requires the trial court to “determine custody
in accordance with the best interests of the child and equal
consideration shall be given to each parent . . . .”8
In many
cases, the best interests of the child will require an award of
sole custody to one parent with reasonable or even liberal
4
Opinion, Harnish v. Harnish, No. 2003-CA-002687-ME (Ky.App. February 25,
2005) p. 2.
5
Commonwealth v. Tamme, 83 S.W.3d 465, 468 (Ky. 2002)(“Obviously, the law of
the case doctrine is intended to prevent defendants from endlessly litigating
the same issue in appeal after appeal.”).
6
114 S.W.3d 767 (Ky. 2003).
7
Kentucky Revised Statutes.
8
KRS 403.270(2).
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visitation to the other.
David’s approach would deprive a trial
judge that option since a grant of unsupervised visitation to a
parent previously determined to be unfit would be highly suspect
under the visitation statute.9
David’s reliance for his argument on Troxel and
Fenwick is misplaced.
As noted above, Troxel involves the
rights of third-parties relative to the superior rights of fit
parents.
The case adds nothing directly to the law as it
relates to an original award of custody between two fit parents.
In fact, a careful reading of Troxel shows that even in custody
cases involving third-parties it does not require a court to
find the custodial parent unfit before allowing non-parental
visitation.
In overturning Scott v. Scott,10 this court said:
“We believe that the Scott court incorrectly interpreted the
Troxel case . . . as requiring such a strict standard . . . .”11
David’s reliance on Fenwick is also misplaced.
Fenwick addresses matters subsequent to the determination of
custody, not the award of permanent custody itself.
issue before us.
That is the
Fenwick involved the primary residential
custodian’s relocation with the children.
Even in that context,
and because the current version of KRS 403.340 is substantially
9
KRS 403.320.
10
80 S.W.3d 447 (Ky.App. 2002).
11
Vibbert v. Vibbert, 144 S.W.3d 292, 294 (Ky.App. 2004).
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modified from the version it interpreted, “Fenwick carries quite
limited precedential weight.”12
Whether construed together or individually, Troxel and
Fenwick do not justify, let alone require, a reversal of the
circuit court’s judgment.
David’s second argument is that the trial court’s
award of sole custody to Barbara is not supported by the
evidence.
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
shall be given to the opportunity of the
trial court to judge the credibility of the
witnesses.
In Moore v. Asente13 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.
The dispositive question we must answer, therefore,
is whether the trial court's findings of fact are clearly
erroneous, i.e., whether those findings are supported by
substantial evidence.
“[S]ubstantial evidence” is “[e]vidence
that a reasonable mind would accept as adequate to support a
12
Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App. 2004).
13
110 S.W.3d 336, 354 (Ky. 2003).
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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.
“Mere 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.)
Upon this court’s previous remand of the case to the
Mason Circuit Court the trial judge made specific and exhaustive
findings, thoroughly explaining his reasoning for the award of
sole custody to Barbara.
It is simply not enough for David to
argue that the evidence could have supported the outcome he
desired.
To justify reversal, our review must reveal that the
evidence did not support the outcome David challenges.
not what our review reveals.
That is
On the contrary, we find the award
of sole custody is supported by substantial evidence.
Finally, David contends that visitation should not
have been ordered according to the local schedule thereby
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resulting in his receiving less visitation than he had prior to
the April 20, 2005, judgment.
A review of the record shows this is not so.
The
standard visitation schedule, with some court-recommended
flexibility, was originally ordered on February 25, 2003.
Since
then, the parties have been cooperating under that schedule with
apparent informal modifications as the parties found
appropriate.
Again, this is an argument David asserted in his
previous appeal.
However, as we vacated and remanded the
circuit court’s custody determination, we determined the
visitation issue to be moot as the circuit court would
necessarily revisit the issue upon remand.
On remand, the trial court did revisit this issue,
stating at paragraph 8 of the judgment:
In the original order, the Court
imposed the 19th Judicial Circuit Visitation
Schedule as a minimum visitation. This
schedule essentially gives one night each
week and every other weekend to the noncustodial parent. The court, at the initial
hearing, urged that the parties consider
informally expanding the visitation,
inasmuch as the residences of the parents
are for practical purposes back to back and
the school which they attend is a block
away. The court feels, however, that it is
unwise to impose additional rigid scheduled
visitation because either parent may choose
to move to a location which makes the
visitation process considerably more
burdensome.
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Nevertheless, David argues the trial court’s order as
to visitation is contrary to this court’s ruling in Drury v.
Drury.14
In Drury, this court considered the use of a standard
visitation schedule adopted by the 11th Judicial Circuit.
The
19th Judicial Circuit Visitation Schedule is, for all practical
purposes, equivalent to that of the 11th Circuit.
A local rule
in that circuit provided that the Court "shall order visitation
according to the Schedule unless the parties by agreement, or
the Court determines, that such visitation should be modified."
Noting that local rules must comply with existing substantive
law, rules of practice and procedure promulgated by our Supreme
Court, rules of criminal and civil procedure, and must be
consistent with statutory law, the court discussed the potential
problems posed by local visitation schedules.
It pointed out
that KRS 403.320 requires that the court make findings regarding
visitation based upon the facts of a particular case.
A
standard schedule applicable to all cases without reference to
the circumstances in each case is contrary to that statute.
Furthermore, a standard visitation order, even to the
extent it has been adopted as a local rule, is not binding until
it has been entered as an order in a particular case.
Thus, the
local rule cannot be interpreted as requiring a parent to prove
14
32 S.W.3d 521 (Ky.App. 2000).
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grounds for modifying an existing visitation order, as under KRS
403.340.15
The use of a visitation schedule must not supplant the
court's obligation to make its own findings of fact and no
presumptive weight should be given to the schedule.
Therefore,
the court held, that if specific findings regarding visitation
are requested by either party, “the trial court must make a de
novo determination of what amount of visitation is appropriate
. . . .”16
Despite its caution against the use of a visitation
schedule, the court in Drury nevertheless held that it is not a
basis for reversal unless the court's determination as to
visitation is a manifest abuse of discretion or is clearly
erroneous.17
Applying the reasoning in Drury, we affirm the trial
court's decision.
The visitation schedule in the 19th Judicial
Circuit does not contain any mandatory language as to its
effect, thus it leaves the court's role as fact finder intact.
It is not apparent from our review of the record that
David requested more specific findings than the trial court
offered and David’s brief does not contain a statement showing
how, or if, this argument was preserved for review, as is
15
Id. at 525.
16
Id.
17
Id.
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required by CR 76.12(4)(c)(v).
Indeed, David’s brief does not
show where any of the issues he attempts to raise were preserved
for appellate review.
Since we have not been directed to nor
discovered a request for specific findings, none would have been
required of the trial court.
Nevertheless, we believe paragraph
8 of the April 20, 2005, judgment would satisfy the specificity
requirements of Drury.
In its conclusion, the court in Drury made the
following observation applicable to the majority of visitation
orders:
A trial court’s visitation orders
should attempt to provide the nonresidential parent with the greatest amount
of visitation which is reasonable under the
circumstances. Unfortunately, in custody
proceedings it is seldom possible for a
trial court to impose a visitation regime
which makes both parties happy. For this
reason, matters involving visitation rights
are held to be peculiarly within the
discretion of the trial court.18
The Mason Circuit Court’s order is not an exception to
this general observation.
Although David desires more time with
his daughters, the visitation provided by the local schedule
grants him reasonable visitation and there is no evidence that
the court failed to consider the circumstances of both parents
and the children.
Its application in this case was not a
manifest abuse of discretion nor is it clearly erroneous.
18
Id. at 526.
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Accordingly, the judgment of the Mason Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William D. Tingley
Louisville, Kentucky
Patrick E. Price
Flemingsburg, Kentucky
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