MATTHEW GULLION v. STEPHANIE GULLION
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RENDERED:
OCTOBER 6, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001808-MR
MATTHEW GULLION
v.
APPELLANT
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JULIE PAXTON, JUDGE
ACTION NO. 99-CI-00379
STEPHANIE GULLION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.
COMBS, CHIEF JUDGE; HENRY, JUDGE; PAISLEY,1 SENIOR
PAISLEY, SENIOR JUDGE:
This child custody dispute began in 1999
when Matthew Gullion filed a petition against Stephanie Gullion
seeking a dissolution of marriage and emergency temporary
custody of the parties’ two-year old daughter.
The issues
presented are whether, after the case was remanded by the
Kentucky Supreme Court, the family court properly awarded
primary residential custody of the child to Stephanie; whether
the family court had authority to change the circuit court’s
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
custody order; and whether the doctrine of res judicata
precludes consideration of the stability of the parties.
We
affirm.
PROCEDURAL HISTORY
The series of custody orders and appellate litigation
began in December 1999, when Matthew was awarded emergency
temporary custody.
Following a hearing, that order was set
aside and Stephanie and Matthew were awarded pendente lite joint
custody with the child to reside with each party for two weeks
on an alternating basis.
After a final hearing, the Domestic
Relations Commissioner recommended that the parties have joint
custody with Matthew having primary custody and Stephanie
reasonable visitation.
On February 14, 2002, prior to the time expiring for
filing exceptions under CR 53.06, the circuit court adopted the
DRC’s recommendation; Stephanie, however, filed a timely CR
59.05 motion to alter or amend the custody order on the basis
that the finding that Matthew could provide a more stable home
for the child was clearly erroneous and she requested permanent
custody.
That motion remained pending for almost one year.
During that time, Matthew sought and obtained an emergency
custody order and a suspension of Stephanie’s visitation because
she failed to return the child after a regularly scheduled
visit.
Stephanie was ordered to return the child and appear for
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a show cause hearing.
On September 20, 2002, Stephanie filed a
response to the show cause and filed a motion to set aside the
emergency custody order.
In that motion, she sought to
reinstate the order of joint custody and asked the court to
designate her as the primary residential custodian.
In November 2002, the case was transferred to the
family court where the show cause order and Stephanie’s pending
CR 59.05 motion were heard in a single proceeding.
At the
hearing, both parties were permitted to introduce evidence of
events following the 2002 order.
In January 2003, the family
court set aside the order of emergency custody and found it in
the child’s best interest to continue joint custody, but
designated Stephanie as the primary custodian.
Explaining its
reasoning, the court stated:
Based upon the testimony before the
commissioner as well as the testimony before
this court, it is clear both parents are
most capable to care for and are able to
care for this child. In addition the fact
that the motions of the parties were not
attended to in timely fashion have resulted
in the child’s further integration into the
home of the father. The court notes as well
that in the hearing of September 2001 as in
the hearing before this court, the father
has difficulty in allowing contact between
the mother and the child and difficulty in
communicating with the mother regarding the
child.
Thus, although the family court found both parents to have
stable homes, it found decisive Matthew’s interference with the
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child’s relationship with Stephanie.
As the basis for the
custody award, the family court considered the evidence from the
DRC hearing in addition to that introduced at the subsequent
hearing.
Disappointed with the designation of Stephanie as the
primary custodian, Matthew appealed to this court arguing that
the family court did not have subject matter jurisdiction and
that it erred when it changed the custody order based on events
that occurred after the entry of the February 2002 order.
In an
unpublished opinion, Gullion v. Gullion, Case No. 2003-CA000250, this court held that Stephanie’s CR 59.05 motion sought
a modification of a custody award and that, therefore,
compliance with KRS 403.3402 was required.
We also agreed with
Matthew that additional evidence was improperly admitted.
The
February 2002 order was ordered reinstated.
The Kentucky Supreme Court granted Stephanie’s motion
for discretionary review and reversed this court’s holding that
compliance with KRS 403.340 was required.
Because the statute
applies only to final custody orders and the custody order was
not final until Stephanie’s CR 59.05 motion was ruled upon,
Stephanie was not required to meet the requirements for a
custody modification.
Gullion v. Gullion, 163 S.W.3d 888, 891
(Ky. 2005).
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The statute requires the filing of two supporting affidavits.
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After deciding that Stephanie’s CR 59.05 motion was
properly filed, the Supreme Court continued its CR 59.05
analysis and addressed the issue of whether the family court
improperly considered evidence that occurred subsequent to the
February 2002 order.
Finding error, the court held that the
consideration of additional evidence, even in a child custody
dispute where the child’s best interest is paramount, is outside
the scope of CR 59.05.
If facts have occurred since the trial that
justify a change of custody, the law
adequately provides a method to address such
a situation, but because a CR 59.05 motion
cannot be granted on facts that did not
exist at trial, the filing with a CR 59.05
motion of affidavits showing a change of
circumstances does not make it a proper
motion to change custody under KRS 403.340.
Id. at 894.
On remand, the court was instructed to “limit its consideration
of Appellant’s CR 59.05 motion to facts that existed at the time
of trial.”
Id.
PROCEEDINGS ON REMAND
On remand, the family court, without a further
hearing, again considered Stephanie’s 2002 CR 59.05 motion and,
following the Supreme Court’s directive, considered only the
evidence presented at the DRC hearing.
The court found that both parties had stable homes.
Stephanie was then a Georgia resident, living with her parents
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in a four-bedroom home and a senior at the University of Georgia
pursuing a degree in child psychology.
local restaurant.
She worked part-time at
While she was away, the child was cared for
by Stephanie’s mother and step-father.
Both Stephanie and her
parents testified that they intended to remain in Georgia.
Matthew, a minister, also offered the child a suitable home, the
love and nurture of his church family, and presented a suitable
babysitter for the child.
The family court found that while both parents
provided stable homes, it again found that Matthew had
interfered with the child’s relationship with Stephanie.
As
examples, the court referred to events that occurred prior to
the DRC hearing; one when Matthew refused to disclose the
child’s location and another when he refused to allow the child
to speak with her mother.
The family court found that the best interests of the
child were served by granting the CR 59.05 motion and awarding
joint custody with Stephanie as the primary custodian.
MATTHEW’S CONTENTION THAT THE FAMILY COURT ERRED
WHEN IT AWARDED PRIMARY CUSTODY TO STEPHANIE
In child custody cases, appellate courts recognize
that the family court is in the best position to evaluate the
testimony and weigh the evidence; an appellate court, therefore,
will not substitute its judgment for that of the family court.
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Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
On review
of factual findings, appellate review is limited to the clearly
erroneous standard which requires that the findings be affirmed
unless they are manifestly against the weight of the evidence.
Id.
The family court’s decision in a custody matter will not be
disturbed unless it clearly abused its discretion.
Cherry v.
Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
As revealed by its lengthy history, this custody
litigation has been protracted.
The reasons for the delay are
varied and, in part, attributable to the failure to promptly
rule on Stephanie’s CR 59.05 motion.
With the passage of time,
the child has grown older, the parties’ circumstances have
changed, and the child has no doubt become integrated with
family, school, and friends.
Nevertheless, as instructed by the
Supreme Court, the family court was restricted to review this
case within the permissible context of CR 59.05; specifically,
to a review of the evidence heard by a different court three
years earlier.
On appeal, this court is likewise limited to the
same evidence.
Matthew recognizes our limited scope of review but
contends that his work as a minister, his ties to the community,
and an available babysitter, render him the more suitable
primary custodial parent rather than Stephanie, who offers only
a home owned by her parents, is a college student, and works
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part-time as a waitress.
Thus, Matthew asks that we hold the
findings of fact to be clearly erroneous and the decision of the
family court an abuse of discretion.
The family court’s designation of a primary custodian
is a factual issue and, therefore, will not be disturbed if
supported by substantial evidence.
S.W.3d 777, 783 (Ky.App. 2002).
Sherfey v. Sherfey, 74
Under KRS 403.270 the court is
required to resolve the custody issue based on the best
interests of the child.
Factors relevant to that decision
include the wishes of the parents and the child; the interaction
of the child with the parents; the child’s adjustment to home,
school and community; and the mental and emotional states of the
proposed custodians.
KRS 403.270(2)(a),(b),(c),(d), and (e).
The family court found that both Matthew and Stephanie
could provide a physically stable and loving home for the child.
The court’s concern again, however, was Matthew’s history of not
supporting and nurturing the relationship between Stephanie and
the child while in Matthew’s custody.
Pointing out that there
was evidence at the DRC hearing that Matthew demonstrated open
hostility toward Stephanie and had intentionally attempted to
prevent Stephanie from contacting the child, the court stated:
The concern of this court is the
ability of the parties to raise this child
together while living apart. To accomplish
this requires putting differences aside and
putting the child first. The testimony at
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the hearing before the commissioner showed a
failure on the part of the petitioner to
communicate or allow the child to
communicate with the respondent during the
times the child was with the petitioner.
The family court found that both Matthew and Stephanie
are capable of successfully parenting the child; the issue,
however, is the child’s best interest.
It is always in the child’s best interest to have a
loving and nurturing relationship with both parents.
When one
parent seeks to use a custodial relationship to interfere with
the other’s development of that relationship, the child’s best
interest is not served.
Based on the evidence, the family court
found that the opportunity for both parents to love and nurture
the child was most likely if Stephanie had primary custody.
We
cannot say that there was an abuse of discretion.
THE AUTHORITY OF THE FAMILY COURT TO SET ASIDE
THE ORDER OF THE CIRCUIT COURT
The original custody order was rendered by the circuit
court and the initial CR 59.05 motion presented to that court.
Because the case was transferred to the family court, a
different judge ruled on the motion.
Matthew contends that
since the family court did not observe the witnesses, deference
to the DRC and the circuit court was required.
In Herring v. Moore, 561 S.W.2d 95 (Ky.App. 1977), the
court addressed the authority of a successor judge when
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reviewing the judgments of a predecessor judge.
Although
extreme caution was urged, the court did not restrain the
successor from a full review of the interlocutory judgments and
orders of a predecessor.
It is settled that a trial judge who
has entered findings, conclusions and
judgment can, upon timely motion, change his
mind and enter new findings, conclusions, or
judgment directly opposite to those first
entered. We see no reasonable basis for
holding that a successor judge is without
power to take an action which would have
been appropriate by his predecessor.
Id. at 98(citations omitted).
The circuit court had authority to consider Stephanie’s timely
CR 59.05 motion.
Likewise, when the case was transferred to the
family court, it had the same authority.
There was no error.
RES JUDICATA
Matthew’s application of the doctrine of res judicata
is misplaced.
The DRC found that Matthew provided a more stable
home life than Stephanie; on its initial consideration of
Stephanie’s CR 59.05 motion, however, the family court disagreed
that Matthew could provide a more stable home life.
Although it
found that both parents had “stable environments” in which to
raise the child, the court pointed to Matthew’s interference
with the child’s relationship with Stephanie as the basis for
awarding primary custody to Stephanie.
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On remand, the family
court was instructed to, and did, consider only the evidence
from the DRC hearing and reached the same conclusion.
Matthew contends that the family court was precluded
from considering the “stability” issue because it, and the
circuit court, had previously ruled on the issue.
The doctrine
of res judicata is applicable only when there has been a prior
action that has been finally determined and consists of two subparts: (1) claim preclusion and (2) issue preclusion.
Elliott, 142 S.W.3d 137, 140 (Ky. 2004).
Buis v.
Claim preclusion bars
a party from relitigating a previously adjudicated claim and
bars a subsequent action on the same claim, while issue
preclusion prevents a party from litigating an issue litigated
and decided in a prior action.
Id. at 140.
The attempt to apply the doctrine fails for two
reasons.
The family court was reviewing the case pursuant to a
CR 59.05 motion.
As held by the Kentucky Supreme Court, there
was no final custody judgment until that motion was ruled upon.
Gullion, at 891.
Absent a final determination by a court, res
judicata is not applicable.
We also find troublesome Matthew’s interpretation of
the two orders of the family court as inconsistent.
Although
based on different evidence, the court’s findings, both prior to
and after remand, are strikingly similar.
In both orders, the
court stated that both parties have stable homes, and in both,
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Matthew’s behavior was a decisive factor in the award.
Thus,
Matthew’s basic premise that the family court reversed its own
findings of fact on remand is flawed.
CONCLUSION
The various courts that have reviewed this case have
all come to the uniform conclusion the both Matthew and
Stephanie are loving and caring parents who can provide a stable
home for the child; only one, however, could be awarded primary
custody.
The family court considered all the relevant factors
and, although it reached a conclusion different than the DRC and
circuit court, it was based on substantial evidence in the
record.
Under the circumstances, it is not the role of this
court to substitute its judgment for that of the family court.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas P. Jones
Beattyville, Kentucky
Linda W. Covington
Gess Mattingly & Atchison,
P.S.C.
Lexington, Kentucky
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