ANGELA JEFFRIES SNYDER v. SEAN EDWARD SNYDER
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RENDERED: May 5, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002074-ME
ANGELA JEFFRIES SNYDER
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 98-CI-00699
SEAN EDWARD SNYDER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM,1 DYCHE, AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE:
Angela Jeffries Snyder has appealed from the
order of the McCracken Circuit modifying child custody and
naming her former husband, Sean Edward Snyder, the child’s
primary residential custodian.
She argues that the circuit
court utilized an incorrect standard in determining that
modification was warranted.
We affirm.
Sean and Angela were married in 1995, and their son
Chase was born on February 28, 1996.
1
Sean filed a Petition for
Judge David C. Buckingham concurred in this opinion prior to his retirement
effective May 1, 2006.
Dissolution of Marriage in 1998, shortly after they separated.
The circuit court entered a decree in early 1999, and awarded
the parties joint custody of Chase, with Angela designated as
the primary residential custodian.
Sean was granted visitation
rights and ordered to pay child support by way of a wage
assignment.
In October 2003, Sean moved the circuit court to
modify custody based upon a change in circumstances.
He
indicated that Angela had remarried, and that her new husband
had a history of domestic violence against her and Chase.
Following a hearing, the circuit court entered an order on
February 19, 2004, denying the motion, although indicating some
concern about Angela’s husband’s past history of abuse to her.
However, because he was receiving treatment for anger
management, there were no current grounds to support modifying
custody.
Sean filed a motion to alter, amend or vacate that
order, which was denied the next month.
On July 6, 2005, less than two years later, Sean filed
another motion to modify custody, this time citing the extensive
criminal background of Angela’s current live-in boyfriend, Ryan
Hufford.
In the motion, Sean stated that he feared for the
safety and well-being of Chase.
Attached to the motion were two
affidavits, one from Sean and one from Sean’s mother, Jan
Haynes.
Sean’s affidavit reads as follows:
AFFIDAVIT
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The Affiant, being first duty sworn,
states as follows:
1. The Affiant is the Petitioner in
the above-referenced action and the father
of the minor child, Chase Snyder.
2. My ex-wife, the Respondent in this
action, was granted the primary residential
custody of Chase in a hearing held before
this Court in January 2004. At that time,
the Respondent was married to David
Frensley, who has a history of criminal
activity, and it was my opinion then that
such an environment would be detrimental to
Chase’s well being.
3. The Court allowed Chase to stay
with the Respondent on the condition that
she remove herself from her husband. The
Respondent finally did remove herself from
her husband, but it took nine months and
David Frensley had to be put in jail before
it occurred.
4. It has now come to my attention
that the Respondent is living with another
lifelong criminal, Wanna Ryan Hufford. As
is evident from the attachments to the
Motion, Mr. Hufford has an even more
extensive criminal background, including
several domestic violence orders and charges
for sexual assault and other serious crimes.
5. Chase has told me on several
occasions without being asked that Mr.
Hufford is prone to fits of rage, that are
sometimes directed at him.
6. Chase has also told me that he
would rather stay with me than go back into
a situation where both he and his mother are
fearful of doing anything wrong because Mr.
Hufford often “goes ballistic.”
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7. I strongly believe that Chase is in
a situation that will seriously endanger his
physical and emotional well-being if he were
required to remain with the Respondent and
her new boyfriend.
8. Even worse, it is evident that the
Respondent only chooses individuals of the
lowest moral character to reside with her
and be [a part] of Chase’s life. Therefore,
I believe returning Chase to my care is in
his best interests and is the only way to be
assured that Chase will remain safe
throughout his teenaged years.
FURTHER THE AFFIANT SAYETH NAUGHT
XXXXXXXXXXXXXX
SEAN SNYDER
Haynes’ affidavit reads as follows:
AFFIDAVIT
The Affiant, being first duly sworn,
states as follows:
1. The Affiant is the paternal
grandmother of Chase Snyder.
2. I have had significant contact with
the minor child over the past several years,
specifically since Angela Frensley has
obtained primary residential custody of the
minor child.
3. Angela has a habit of cohabiting
with individuals of poor character and long
criminal backgrounds. In January 2004, the
Court allowed her to have primary
residential custody of the minor child on
the condition that she remove herself from
her then husband, David Frensley, a man with
a history of violent behavior.
4. Since that time I have become aware
that she has begun cohabitating with an
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individual named Ryan Hufford. The reason
that I am aware that they live together is
because I was at Lourdes Hospital one day
awaiting results for my husband when Mr.
Hufford came in to the hospital to request
some test results. He gave Ms. Frensley’s
address as his contact information.
5. Subsequently, Mr. Hufford received
a traffic citation while driving Ms.
Frensley’s car.
6. I have become aware of Mr.
Hufford’s extensive criminal background, and
it is much more extensive than that of
Angela’s previous husband. Not only does he
have a lengthy record of criminal
convictions, he also has had domestic
violence orders placed against him on at
least two occasions.
7. In my conversations with the minor
child, he has informed me that Mr. Hufford
often screams and yells at both Angela and
himself, as well as Mr. Hufford’s own child.
8. It is my understanding from Angela
that Mr. Hufford does not have any custodial
rights to his own [] child, but rather Mr.
Hufford’s parents are the custodians of his
child.
9. I do not believe that this
environment is the proper environment for a
child of Chase’s age, and I am fearful that
serious physical or emotional harm may occur
if he were to [be] allow[ed] to remain in
the same residence as Angela and her new
boyfriend.
10. Sean Snyder has always provided a
good home for Chase, and it would be in the
best interests of Chase if Sean Snyder were
given primary residential custody of the
minor child.
FURTHER THE AFFIANT SAYETH NAUGHT.
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XXXXXXXXXXXXXX
JAN HAYNES
Angela responded to Sean’s motion, asserting that the proper
standard to modify custody is the serious endangerment standard,
and that the affidavits were inadequate to justify a hearing as
they contained baseless allegations only.
After hearing
arguments from counsel, the circuit court opted to hold a
hearing on the motion to modify custody.
At the August 15, 2005, hearing, the circuit court
heard testimony from Angela, Haynes, and Hufford’s mother,
LaVonda Cantrell.
At the parties’ request, the circuit court
also interviewed Chase in chambers.
Angela testified that she
and Hufford were not married, but that they had lived together
for the last four to five months.
Hufford told her about his
criminal history the second day they met, and she believed him
to be a fairly good father.
abused Chase.
She denied that Hufford had ever
Haynes expressed concern about Chase in that he
was more withdrawn and quiet.
She testified that Chase had a
close relationship with Sean and a great relationship with his
stepmother, Wendy.
Cantrell testified that she had had physical
possession of Hufford’s almost 10-year-old son since he was
seven months old.
At the conclusion of the hearing, Angela’s
counsel stated that the applicable standard in cases where the
motion for modification is made less than two years later is the
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serious endangerment standard.
The circuit court indication
that this was the correct standard, and Sean’s attorney agreed.
On August 18, 2005, the circuit court entered an order
granting modification of custody, naming Sean as the primary
residential custodian.
The circuit court first clarified the
appropriate standard to be applied in this case, holding that
for motions made within two years of a prior decree, the court
must first follow KRS 402.340(2) and determine whether the child
is in serious danger based upon the affidavits attached to the
motion before deciding whether to hold a hearing.
If the movant
reaches that hurdle and the circuit court decides to hold a
hearing, the best interest of the child standard then applies
pursuant to KRS 402.340(3).
The circuit court then entered the
following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Respondent (mother) was granted
primary residential custodian of the minor
child, Chase, in January 2004.
2. A condition of the Order granting
Respondent custody was that she have no
overnight, unrelated, guests of the opposite
sex. She has, and continues to, violate
that Order.
3. Respondent has a history of
romantic relationships with men who have
abused her while residing together.
4. Respondent’s current paramour,
Wanna Ryan Hufford, is on probation for
felony wanton endangerment. He has a long
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history of drug and alcohol abuse and
violent behavior.
5. Petitioner (father) is a “good
father” to Chase. He is Chase’s Cub Scout
troop leader. He has remarried to a woman
who is employed in the church he and his
family attend.
6. Chase is equally happy with the
idea of residing with his father or his
mother. He has a good relationship with his
stepmother and her children who also reside
with Petitioner.
7. Because of Mr. Hufford’s history of
violence, drug and alcohol abuse, and
assaultive behavior, there is a danger that
Chase’s mental and/or physical health will
be damaged if he remains in the primary
custody of Respondent.
CONCLUSIONS OF LAW
1. The Court has jurisdiction to
modify custody.
2. The Court has found reason to
believe from Petitioner’s affidavit
supporting his motion to modify custody that
the child’s present environment may endanger
seriously his physical, mental, moral, or
emotional health.
3. Following a hearing, and
considering all matters in light of the
requirements of the applicable statutes, the
Court finds it is in the best interests of
the child that Petitioner be primary
residential custodian.
4. Petitioner’s motion to modify
custody is hereby granted.
5. Petitioner is to be primary
residential custodian of Chase, effective
upon entry of this order.
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6. Absent any agreement otherwise,
Respondent is awarded standard visitation.
7. Any other relevant issues are to be
agreed upon by the parties or will be
resolved upon appropriate motion.
Angela moved the circuit court to alter, amend, or vacate the
order, arguing that it was not logical for a lower standard to
apply to modification of custody once a hearing is granted.
The
circuit court denied Angela’s motion, and this expedited appeal
followed.
On appeal, Angela presents three arguments:
1)
whether the circuit court erred in granting a hearing on child
custody; 2) whether the circuit court applied the proper
standard for modification of custody; and 3) whether the circuit
court erred in modifying custody.
Sean responds to each
argument in his brief.
The standard of review applicable in this matter 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.
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In Moore v. Asente,2 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
decision in this matter.
The applicable statute in this case is KRS 403.340,
which details the modification of custody.
The statute, as
amended by the General Assembly in 2001, provides:
2
110 S.W.3d 336, 354 (Ky. 2003).
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(2)
No motion to modify a
shall be made earlier
years after its date,
permits it to be made
affidavits that there
believe that:
custody decree
than two (2)
unless the court
on the basis of
is reason to
(a)
(b)
(3)
The child’s present environment
may endanger seriously his
physical, mental, moral, or
emotional health; or
The custodian appointed under the
prior decree has placed the child
with a de facto custodian.
If a court of this state has
jurisdiction pursuant to the Uniform
Child Custody Jurisdiction Act, the
court shall not modify a prior custody
decree unless after hearing it finds,
upon the basis of facts that have
arisen since the prior decree or that
were unknown to the court at the time
of entry of the prior decree, that a
change has occurred in the
circumstances of the child or his
custodian, and that the modification is
necessary to serve the best interests
of the child. When determining if a
change has occurred and whether a
modification of custody is in the best
interests of the child, the court shall
consider the following:
(a)
Whether the custodian agrees to
the modification;
(b)
Whether the child has been
integrated into the family of the
petitioner with consent of the
custodian;
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(c)
(d)
Whether the child’s present
environment endangers seriously
his physical, mental, moral, or
emotional health;
(e)
Whether the harm likely to be
caused by a change of environment
is outweighed by its advantages to
him; and
(f)
(4)
The factors set forth in KRS
403.270(2) to determine the best
interests of the child;3
Whether the custodian has placed
the child with a de facto
custodian.
In determining whether a child’s
present environment may endanger
seriously his physical, mental, moral,
or emotional health, the court shall
consider all relevant factors,
including, but not limited to:
(a)
The interaction and
interrelationship of the child
with his parent or parents, his de
facto custodian, his siblings, and
any other person who may
significantly affect the child’s
best interests;
(b)
The mental and physical health of
all individuals involved;
(c)
Repeated or substantial failure,
without good cause as specified in
KRS 403.240, of either parent to
observe visitation, child support,
or other provisions of the decree
which affect the child, except
that modification of custody
3
The factors listed in KRS 403.270(2) include the wishes of the parent or
parents as to the child’s custody; the child’s wishes; the interaction of the
child with parents and siblings; the child’s adjustment to his home, school
and community; and the mental and physical health of everyone involved.
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orders shall not be made solely on
the basis of which parent is more
likely to allow visitation or pay
child support;
(d)
If domestic violence and abuse, as
defined in KRS 403.720, is found
by the court to exist, the extent
to which the domestic violence and
abuse has affected the child and
the child’s relationship to both
parents.
The Kentucky Court of Appeals has stated that in amending the
statute, “the General Assembly not only relaxed the standards
for modification of custody, but it also expanded upon the
factors to be considered when modification is requested. . . .
The former standards for modification . . . are now mere
elements or factors to be considered by the court.”4
KRS 403.350
requires a party seeking modification of a custody decree to
submit an affidavit supporting the motion.
The court is
required to deny the motion “unless it finds that adequate cause
for hearing the motion is established by the affidavits, in
which case it shall set a date for hearing on an order to show
cause why the requested order or modification should not be
granted.”5
Angela first argues that the circuit court erred in
granting a hearing on modification of custody.
4
Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App. 2004).
5
Id.
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She asserts that
in a case where the motion is filed within two years of a prior
decree, the two affidavits accompanying such a motion must show
that serious endangerment to a child’s mental, physical, moral
or emotional well-being exists.
In this case, Angela argues
that the affidavits “only contained baseless allegations about a
possible danger to the child based on the criminal record of Mr.
Hufford.”
On the other hand, Sean reminds the Court that the
affidavits only have to demonstrate that the child’s present
environment may endanger his physical, mental, moral or
emotional health.
In reviewing the affidavits that accompanied Sean’s
motion to modify custody, we agree with circuit court that those
sworn documents establish that being subjected to Angela’s livein boyfriend may indeed cause Chase to be seriously endangered.
The affidavits establish that Hufford has a rather extensive
criminal background, including domestic violence and assault
charges.
anger.
They also establish that Hufford has a problem with
Based upon these affidavits, we must hold that
substantial evidence supports the circuit court’s decision to
hold a hearing in this case, and that there was no error in this
holding.
Next, we shall address the proper standard to be
applied in this case to the circuit court’s decision whether to
modify custody.
Angela asserts that a serious endangerment
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standard applies, while Sean asserts that the best interests of
the child standard applies.
We agree with Sean that regardless
of when the motion is made, a best interests standard applies to
the decision to modify custody under the amended version of the
statute.
While we somewhat agree with Angela that it appears
incongruous that the General Assembly fixed a higher standard on
the decision as to whether a hearing is warranted than on the
decision to modify itself, the plain language of KRS 403.340
compels that result.
In situations where a motion to modify is
made earlier than two years after a prior decree, KRS 403.340(2)
permits the court to review such a motion only in two
situations, including when “[t]he child’s present environment
may endanger seriously his physical, mental, moral, or emotional
health[.]”6
Once a court has decided that a hearing is
justified, the statute then instructs the court to consider
several factors, including whether there is serious endangerment
to the child, before determining whether a change in
circumstances has occurred and whether a modification would be
in the child’s best interests.7
Based upon our review of the
statute, we must conclude that the circuit court did not commit
any error in interpreting the statute in question and properly
6
The other situation applies when the custodian places the child with a de
facto custodian, which is not alleged in this case.
7
KRS 403.340(3).
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applied a best interest of the child standard in ruling on the
motion to modify custody.
Finally, Angela argues that the evidence submitted was
not sufficient, and was too speculative, to justify modifying
custody.
She asserts that Sean presented no evidence since the
2004 ruling that anyone had ever been violent toward herself or
Chase, or that Hufford had lost his temper with Chase.
Sean, on
the other hand, argues that the circuit court’s findings are
supported by substantial evidence and, as such, should not be
disturbed.
In determining whether a modification is in a child’s
best interest, KRS 403.340(3) now requires a court to consider
an expanded list of factors, including whether his present
environment presents a serious endangerment to him, whether the
harm a change in environment would likely cause is outweighed by
its advantages, as well as the nine relevant factors listed in
KRS 403.270(2).
The testimony presented in this case clearly
supports the circuit court’s findings of fact, on which the
decision to modify custody was based.
While Angela testified
that Hufford had never abused Chase, she admitted that she had
known about his criminal history since the second time they met
and only described Hufford as a “fairly good father.”
She also
admitted that they had lived together for the past four to five
months prior to the hearing without being married.
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Haynes
testified about the changes she noticed in her grandson, that he
had become more withdrawn and quiet.
She testified that Chase
had a close relationship with Sean, who was also his Cub Scout
pack leader, and a great relationship with his stepmother.
Based upon the testimony and evidence presented, the circuit
court was not clearly erroneous in determining that Chase’s
mental and/or physical health was in danger of being damaged if
he remained in the primary custody of Angela or that it would be
in his best interests to transfer primary custody to Sean.
Therefore, the circuit court did not commit any error in
granting Sean’s motion to modify custody.
For the foregoing reasons, the judgment of the
McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffery P. Alford
Paducah, KY
Mark P. Bryant
Emily Ward Roark
Paducah, KY
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