NICHELLE ZORR FELSEN v. LIAM ETHAN FELSEN
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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NOT TO BE PUBLISHED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-000301-MR
NICHELLE ZORR FELSEN
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE KEVIN L. GARVEY, JUDGE
ACTION NO. 05-CI-500115
LIAM ETHAN FELSEN
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE.
MILLER, SPECIAL JUDGE:
Nichelle Zorr Felsen appeals from the
“Findings of Fact, Conclusions of Law, Decree of Dissolution and
Judgment” of the Jefferson Family Court.
Nichelle challenges
the family court’s awarding of sole custody of the parties’ two
children to their father, appellee Liam Ethan Felsen, and its
denial of a maintenance award.
For the reasons stated below, we
affirm.
1
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
The parties were married on July 1, 1995.
They have
two children, Tiana Jane, born May 2, 2000, and Zachary Cooper,
born April 7, 2002.
On January 13, 2005, Liam filed a petition
for dissolution of marriage.
On January 11, 2006, the family
court entered its “Findings of Fact, Conclusions of Law, Decree
of Dissolution and Judgment” dissolving the marriage and
resolving the pending issues in the case, including custody and
maintenance.
This appeal followed.
Nichelle contends that the family court erred by
awarding Liam sole custody of the parties’ two children.
She
requests that we remand the issue to the family court with
instructions to enter an award of joint custody with a 50/50
parenting schedule.
Kentucky’s child custody statute, KRS 403.270,
provides, in relevant part, as follows:
(2) 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
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
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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;
. . . .
(3) The court shall not consider conduct of
a proposed custodian that does not affect
his relationship to the child. . . .
. . . .
(5) The court may grant joint custody to
the child's parents . . . .
The family court’s January 11, 2006, “Findings of
Fact, Conclusions of Law, Decree of Dissolution and Judgment”
contained the following findings of fact regarding child
custody:
Father is employed on the tenure-track as a
teacher in the English Department at Indiana
University Southeast. He is in his third of
seven years to gain tenure. His base salary
is $43,600 plus father teaches two summer
classes which brings his total income to
approximately $50,000 annually.
Father is in charge of his scheduling and
can be flexible with his schedule as needed
for any child care duties. Father has
always been very involved with his children
from birth to the present time. He has
prepared meals, provided child care and has
developed a very close attachment to his
children. Father’s education includes two
Bachelor’s Degrees and a Ph.D in English.
He teaches Medieval and Shakespeare English
which is exactly the area of study which he
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enjoys and he is very satisfied with his
employment at Indiana University Southeast.
Mother and father met in 1992 and lived
together for three years. Both were waiting
tables at the same restaurant while mother
was finishing her Bachelor’s Degree at San
Francisco State University. In January of
1993, mother earned a Bachelor’s Degree in
Clinical Psychology, however, she held other
jobs unrelated to her education while father
was going to school. Mother has not worked
for the past three and a half years. Mother
would like to move to California, live with
her mom, earn her Master’s Degree and
attempt to obtain a job in the medical
coding field.
Mother traveled alone to California in the
summer of 2004 to be with her mother after
surgery. Mother admits having an affair
with a man named Scott and there was also a
relationship with a man named Don.
Additionally, mom was using email to express
sexual fantasies with a man named Wayne.
Mother and father went to counseling,
however, mother made no good faith effort to
work on the marriage relationship and has
since returned to California from time to
time, and one email indicates she was
meeting Scott and hoping he would pick her
up at the airport to begin some sort of
relationship as soon as she arrived.
Mother and father currently continue to live
in the same marital residence with their two
children. Mother has elected not to find
employment here in Louisville. Mother does
not have a job arranged in California.
Mother appears healthy and there was no
evidence to suggest she suffers from any
kind of disability.
The children lived in Louisville their
entire lives. They are in school in
Louisville and father’s relatives, i.e.,
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paternal grandmother and grandfather, visit
regularly and maintain a relationship with
the children.
Although the parents live in the same
household with the children, it is clear
from the evidence there is little or no
communication between mother and father.
This is especially true about attempts to
communicate regarding important issues
concerning the children. In marriage
counseling, mother wanted to keep secrets
and was not able to openly communicate with
father despite her verbal articulation of a
desire to do so.
Father does not believe that the parties
will ever be able to agree about important
issues concerning the children. The best
example of this is the current struggle
between the parents regarding where the
children will live. Mother has a very
strong desire to move back to California,
live with her mom and pursue a career in the
medical coding area. Father has a very
strong desire to remain at Indiana
University Southeast, continue on the
tenure-track, obtain tenure and have a
secure job in teaching. Both parents desire
the children to stay with themselves and
therefore, are at an impasse about how to
handle the children.
Father has investigated employment
opportunities in California. According to a
survey of Medieval Academy of America, only
about forty percent of applicants at
universities get employment and there is no
guarantee there will be a job opportunity in
California. Today, father has a secure job
with retirement, health insurance and dental
insurance coverage.
The children have adjusted well to their
current environment. The children are
bonded to each other. Tiana attends St.
Francis Preschool five days per week from
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9:00 a.m. to 4:00 p.m., having requested a
full day of preschool. Zachary has attended
Jacob’s Ladder Preschool since August or
September of 2004.
The Court concludes that father is more
emotionally stable. Father is financially
stable with a tenure-track teaching position
at Indiana University Southeast. Father has
excellent knowledge of parenting skills.
Father has always been very involved with
his children and has a close attachment to
each of them.
Although mother holds a Bachelor’s Degree in
Clinical Psychology, has known about this
Petition to dissolve the parties’ marriage
since January 2005, has had both children in
daycare and has witnessed father get a parttime bartending job to help make ends meet,
mother has declined to become employed.
Mother and father do not discuss and agree
on important issues concerning the children.
Mother’s emotional reactivity may cause her
to put new romantic interest ahead of the
needs of the children.
The Court therefore concludes that it would
be in the best interests of the children to
award father sole custody.
In custody matters tried without a jury, the family
court's “[f]indings 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.” CR 52.01; Sherfey v. Sherfey, 74 S.W.3d 777, 782
(Ky.App. 2002).
“A factual finding is not clearly erroneous if
it is supported by substantial evidence.”
Sherfey, 74 S.W.3d at
782. “Substantial evidence” is “evidence of substance and
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relevant consequence sufficient to induce conviction in the
minds of reasonable people.”
Id.
As stated in R.C.R. v.
Commonwealth Cabinet for Human Resources, 988 S.W.2d 36 (Ky.App.
1998), “when the testimony is conflicting we may not substitute
our decision for the judgment of the trial court.” Id. at 39.
After a trial court makes the required findings of
fact, it must then apply the law to those facts.
The resulting
custody award as determined by the trial court will not be
disturbed unless it constitutes an abuse of discretion.” Sherfey
v. Sherfey, 74 S.W .3d at 782-83.
Broad discretion is vested in
trial courts in matters concerning custody and visitation. See
Futrell v. Futrell, 346 S.W.2d 39 (Ky. 1961); Drury v. Drury, 32
S.W.3d 521, 525 (Ky.App. 2000).
Id.
“Abuse of discretion in
relation to the exercise of judicial power implies arbitrary
action or capricious disposition under the circumstances, at
least an unreasonable and unfair decision.”
Sherfey at 783.
Essentially, while “[t]he exercise of discretion must be legally
sound,” Id., in reviewing the decision of the circuit court, the
test is not whether the appellate court would have decided it
differently, but whether the findings of the circuit judge were
clearly erroneous or that he abused his discretion.
Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Cherry v.
Mere doubt as to the
correctness of the trial court's decision is not enough to merit
a reversal. Wells, 412 S.W.2d at 571.
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The findings of fact made by the trial court are
supported by substantial evidence and, accordingly are not
clearly erroneous.
Moreover, based upon those findings, the
family court did not abuse its discretion by awarding sole
custody to Liam.
Finally, the record reflects an inability of
the parties to cooperate on matters concerning the children.
This is an ample basis for the trial court to have exercised its
discretion and decided against joint custody.
We accordingly
affirm the family court’s custody award.
Addressing the matter of maintenance, Nichelle
contends that the family court erred by denying her an award.
Nichelle asserts that as a result of the family court’s rulings
in this case that she “is not only virtually childless, she is
homeless, jobless, and penniless.”
Kentucky’s maintenance statute, KRS 403.200, provides
as follows:
(1) In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of a marriage by a court which
lacked personal jurisdiction over
maintenance order for either spouse only if
it finds that the spouse seeking
maintenance:
(a) Lacks sufficient property, including
marital property apportioned to him, to
provide for his reasonable needs; and
(b) Is unable to support himself through
appropriate employment or is the custodian
of a child whose condition or circumstances
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make it appropriate that the custodian not
be required to seek employment outside the
home.
(2) The maintenance order shall be in such
amounts and for such periods of time as the
court deems just, and after considering all
relevant factors including:
(a) The financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his ability
to meet his needs independently, including
the extent to which a provision for support
of a child living with the party includes a
sum for that party as custodian;
(b) The time necessary to acquire sufficient
education or training to enable the party
seeking maintenance to find appropriate
employment;
(c) The standard of living established
during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional
condition of the spouse seeking maintenance;
and
(f) The ability of the spouse from whom
maintenance is sought to meet his needs
while meeting those of the spouse seeking
maintenance.
Under this statute, the trial court has dual
responsibilities: one, to make relevant findings of fact; and
two, to exercise its discretion in making a determination on
maintenance in light of those facts.
In order to reverse the
trial court's decision, a reviewing court must find either that
the findings of fact are clearly erroneous or that the trial
court has abused its discretion.
Weldon v. Weldon, 957 S.W.2d
283, 285 (Ky.App. 1997).
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With regard to its decision not to award maintenance
the family court made the following findings:
Respondent/Mother has requested maintenance.
The parties have been married ten years.
The Respondent has a Bachelor’s Degree in
Clinical Psychology. She suffers no
disability. Testimony established that she
is able to work as a data entry person
earning $8.00 per hour. Respondent also
testified she would like to continue her
education and work in the area of medical
coding which would result in an income
higher than $8.00 per hour.
The Court has reviewed Respondent’s Exhibit
#1 which are estimated monthly living
expenses. The Court finds that several of
these expenses are exaggerated or
unnecessary. The Court concludes that
Respondent’s reasonable monthly living
expenses are approximately $1,478.00
The Court concludes that the Respondent is
voluntarily unemployed. The Court further
concludes that income should be imputed to
the Respondent at the rate of $8.00 per hour
for a forty hour week. This results in a
monthly income of $1,387.00. Respondent
indicated that she would be living with her
mother if she moved to California and many
of the expenses on her exhibit would be
unnecessary, including but not limited to
rent, renter’s insurance, cable, garbage
pickup, gas and electric, etc.
Therefore, the Court concludes that
maintenance is not appropriate in this case.
The record contains substantial evidence to support
the foregoing findings, and, accordingly, the family court’s
findings of fact must be upheld.
Moreover, based upon those
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findings, the family court did not abuse its discretion in
determining that Nichelle was not entitled to a maintenance
award.
The reasonable income imputed to Nichelle - $8.00 per
hour - is sufficient to cover her reasonable living expenses.
In addition, we note that the record demonstrates multiple
accounts of marital infidelity by Nichelle, and this is a factor
which may be considered in a maintenance award.
See Tenner v.
Tenner, 906 S.W.2d 322 (Ky. 1995).
For the foregoing reasons the judgment of the
Jefferson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sandra Ragland
Melinda A. Whitton
Louisville, Kentucky
Russell B. Zaino
Louisville, Kentucky
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