PENNY FOSTER ENGLAND v. SAMUEL ENGLAND
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RENDERED:
NOVEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000025-ME
PENNY FOSTER ENGLAND
APPELLANT
APPEAL FROM LARUE CIRCUIT COURT
HONORABLE CHARLES C. SIMMS III, JUDGE
ACTION NO. 04-CI-00165
v.
SAMUEL ENGLAND
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DIXON AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
DIXON, JUDGE:
Penny England appeals from an order of the LaRue
Circuit Court denying her motion to modify joint custody of one
of the parties’ minor daughters.
Because we believe that the
trial court properly determined that Penny did not meet the
statutory requirements to warrant a change in custody, we affirm
the trial court.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Penny England and Sammy England were married on
February 17, 1984.
They had three children during their
marriage, Kim, Cynthia, and Rachel; however only the later two
were minors at the time of the action herein.
The parties
separated in September 2004, and a separation and property
agreement was executed in October 2004.
Pursuant to the agreement, the parties agreed to share
joint custody of the two minor daughters, with Sammy having
primary residential custody and Penny having visitation rights.
The residential custody arrangement was based upon Penny’s
belief that she could not provide adequate housing following the
marital separation.
In March 2005, the parties entered into an oral
agreement whereby Sammy retained primary custody of Rachel and
Penny became the residential custodian of Cindy.
This oral
agreement was incorporated into the Agreed Findings of Fact,
Conclusions of Law, Judgment and Decree that were subsequently
entered by the LaRue Circuit Court on October 3, 2005.
On October 5, 2005, Penny filed a motion to modify
custody of Rachel, claiming that Rachel’s grades had declined
and that Sammy was not providing proper supervision.
Penny also
stated that she had established a stable home and was entitled
to become the residential custodian of both girls.
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Following a
hearing in November 2005, the trial court denied Penny’s motion.
This appeal ensued.
This Court noted in Crossfield v. Crossfield, 155
S.W.3d 743,745 (Ky. App. 2005), that the change in the primary
residential custodian amounts to a modification of the joint
custody arrangement.
See also Scheer v. Zeigler, 21 S.W.3d 807
(Ky.App. 2000)(sitting en banc).
Thus, any change is subject to
the provisions of KRS 403.340, which provides, in pertinent
part:
(2) No motion to modify a
shall be made earlier than
after its date, unless the
to be made on the basis of
there is reason to believe
custody decree
two (2) years
court permits it
affidavits that
that:
(a) The child's present environment may
endanger seriously his physical, mental,
moral, or emotional health; or
(b) The custodian appointed under the prior
decree has placed the child with a de facto
custodian.
(3) 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
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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;
(c) The factors set forth in KRS 403.270(2)
to determine the best interests of the
child;
(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) Whether the custodian has placed the
child with a de facto custodian.
(4) 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 . . .[.]
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Our standard of review on an appeal from a custody
determination is whether the trial court’s findings were clearly
erroneous.
Day v. Day, 347 S.W.2d 549 (Ky. 1961).
And findings
of fact are clearly erroneous only if there exists no
substantial evidence in the record to support them.
Commonwealth, 706 S.W.2d 420 (Ky.App. 1986).
V.S. v.
Because we are of
the opinion that the trial court engaged in a lengthy and
comprehensive application of the applicable statutes, we
incorporate the court’s findings herein as follows:
When determining if a change has
occurred and whether a modification of
custody is in Rachel’s best interest, this
Court is required to consider the factors
contained in KRS 403.340(2). . . .
The first factor is whether the
custodian agrees to the modification. KRS
403.340(2)(a). Not only is Sammy opposed to
any modification, but he contends that it is
in Rachel’s best interest to remain at the
family residence.
The second factor is whether Rachel has
been integrated into Penny’s family with the
consent of Sammy. KRS 403.340(2)(b). Sammy
has resisted any integration of Rachel into
Penny’s family and, as a result, Penny has
been limited to alternate weekends with
Rachel.
The third factor is contained in KRS
403.270(2) for determining the best
interests of the child. KRS 403.340(2)(c).
This Court will now make findings pursuant
to said statute. First, each parent wishes
to be Rachel’s primary caretaker. KRS
403.270(2)(a). Second, neither party called
Rachel as a witness, and as a result, this
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Court is unsure as to her wishes. KRS
403.270(2)(b). Third, Rachel and her father
presently live alone while Penny resides
with her boyfriend, . . . his daughter, . .
. and Cindy. However, no evidence was
presented as to Rachel’s interaction and
interrelationship with Penny’s boyfriend and
his daughter. KRS 403.270(2)(c). Fourth,
although Penny demonstrated that Rachel’s
grades had declined, neither party submitted
any proof as to Rachel’s adjustment to her
home, school, and community. KRS
403.270(2)(d). This Court would note,
however, that Rachel would be required to
transfer from the LaRue County Middle School
upon a custody modification since Penny
resides in Marion County, Kentucky.
The fourth factor is whether Rachel’s
present environment endangers seriously her
physical, mental, moral or emotional health.
KRS 403.340(2)(d). Although this Court is
of the opinion that Sammy could obviously
improve his parenting skills, it is unable
to find that Rachel’s physical, mental,
moral or emotional health is being seriously
endangered. This Court would note that
Rachel’s poor academic performance could be
attributed to any of the following: (1)
Sammy has failed to properly monitor her
progress, (2) school has become more
difficult for Rachel, and as a result, she
needs greater assistance, and/or (3) Rachel
is distraught be her mother abandoning the
family for her boyfriend. . . . At the
present time, however, this Court would
strongly suggest that Sammy obtain a tutor
for Rachel, and that he improve his
supervision over her.
The fifth factor is whether the harm
likely to be caused by a change of
environment is outweighed by its advantages
to her. KRS 403.340(2)(e). This Court has
thoroughly reviewed the evidence, and it is
unable to find any significant advantages
for modifying custody. Although Penny
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contends that Rachel’s grades would improve
with her, this Court is not convinced based
upon the following: (1) Penny allowed Cindy
to miss approximately three consecutive
weeks of school last year, (2) Penny allowed
Cindy to drop out of school, and (3) from
the date of the separation until the fall of
2005, Penny made virtually no effort to
monitor Rachel’s academic progress. . . .
In conclusion, this Court does not find
sufficient proof to justify a custody
modification. This finding is based upon
the statutory presumption and the Court’s
consideration of all relevant factors
contained in KRS 403.340(2). . . .
Without question, the trial court thoroughly
considered whether a modification of custody was in Rachel’s
best interests.
In fact, because Penny’s motion was made
earlier than two years after the date of the custody decree, the
trial court was only required to determine whether Rachel’s
present environment “may endanger [her] physical, mental, moral,
or emotional health.” KRS 403.340(2)(a).
Notwithstanding, the
trial court engaged in a full-blown evaluation of all factors
enunciated in KRS 403.340.
Finally, we are not persuaded by Penny’s contention
that the trial court erroneously interpreted KRS 403.340(2) by
finding only that Rachel’s living arrangement did not currently
endanger her physical, mental, moral, or emotional health.
Penny argues that the proper inquiry is whether a minor may be
endangered by his or her environment.
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Indeed, KRS 403.340(2)
states that no modification can be made under said statute
unless there is reason to believe that “the child’s present
environment may endanger seriously his physical, mental, moral,
or emotional health [.]”
However, the trial court’s reference
to Rachel’s current situation was made in the context of
evaluating the factor’s set forth in KRS 403.270(2) to determine
the best interests of the child.
And one such factor does, in
fact, consider “[w]hether the child’s present environment
endangers seriously his physical, mental, moral, or emotional
health [.]”
Nevertheless, the trial court found no reason to
believe that Rachel was or could be endangered by her present
environment.
Clearly, the trial court determined that Penny had
produced insufficient evidence to warrant a change of physical
custody.
The trial court was in the best position to evaluate
the witnesses and the evidence presented.
The court’s findings
are supported by substantial evidence in the record and, as
such, we cannot conclude that it erred in denying Penny’s
motion.
See V.S. v. Commonwealth, supra.
The decision of the LaRue Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel Todd Spaulding
Lebanon, Kentucky
Dawn L. Blair
Elizabethtown, Kentucky
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