BOBBY JACK HALL v. ROSELLA (HALL) LUEDTKE
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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NOT TO BE PUBLISHED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-000532-ME
BOBBY JACK HALL
v.
APPELLANT
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE BRUCE PETRIE, SPECIAL JUDGE
CIVIL ACTION NO. 02-CI-00223
ROSELLA (HALL) LUEDTKE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, JUDGE; HUDDLESTON AND PAISLEY, SENIOR JUDGES.1
HUDDLESTON, SENIOR JUDGE:
This is an appeal from an Estill
Circuit Court order that awarded joint custody of Bobbie DeLanna
Hall (called “Sissy”) to her parents, Bobby Jack Hall and
Rosella (Hall) Luedtke and named Luedtke the child’s primary
residential custodian.
1
Senior Judges Joseph R. Huddleston and Lewis G. Paisley sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
At issue is whether the circuit court abused its
discretion when it permitted Hall’s counsel to withdraw prior to
the final hearing without granting a continuance and whether the
findings of fact that formed the underpinning of the court’s
custody decision are clearly erroneous.
Because we have
determined that the circuit court did not abuse its discretion
in awarding joint custody of the parties’ daughter with the
child’s mother as primary residential custodian and, inasmuch as
Hall failed to preserve the issue of the adequacy of the court’s
factual findings, we affirm.
The parties are before this Court for the second time.
In an opinion rendered on August 19, 2005,2 we vacated an Estill
Circuit Court order that awarded sole custody of Sissy to Hall.
The case was remanded for the circuit court to make the findings
required by Kentucky Revised Statutes (KRS) 403.270. After de
novo review, on January 19, 2006, the circuit court granted what
it referred to as a “Judgment of Custody” which is the subject
of this appeal.
The court determined that, pursuant to KRS
403.270, it was in Sissy’s best interest for the parties to have
joint custody, with Luedtke as the primary residential
custodian.
2
Rosella Hall v. Bobby Jack Hall, 2004-CA-001446-MR (unpublished opinion
rendered August 19, 2005).
-2-
On appeal, Hall argues that the circuit court abused
its discretion when it allowed his attorney to withdraw without
granting him a reasonable opportunity to retain new counsel.
Although Hall acknowledges that there is no ultimate right to
counsel in a civil proceeding, he insists that it was
unreasonable and unfair for the circuit court to expect him to
proceed without benefit of counsel.
On October 28, 2005, Hall’s attorney filed the first
of two motions to withdraw.
Although that motion was
subsequently withdrawn, a second motion seeking permission to
withdraw was filed on December 28, 2005, and was heard on
January 5, 2006.
The circuit court granted counsel’s motion to
withdraw but denied a contemporary motion for a continuance.
Hall made no argument then, nor does he argue now, that he
either attempted to or intended to retain new counsel, even
though he was aware that his attorney planned to withdraw and he
knew that the court was not inclined to postpone the hearing.
Neither did Hall renew the motion for a continuance at the final
hearing on January 13, 2006.
Indeed, it is clear from a review
of the proceedings that Hall planned and was prepared to proceed
pro se.
He cannot now be heard to complain, as any failure to
effectively present his case was self-determined.
An “application for a continuance is addressed to
the sound discretion of the court, and unless this discretion
-3-
has been abused the action of the court will not be disturbed.”3
Matters involving child custody are necessarily expedited, as
each delay threatens to continue the uncertainty for the child.4
In this case, the custody issue had been pending since January
2003.
The circuit court was not in a rush to conclude the case,
as claimed by Hall, but rather was obviously mindful of the
inconvenience and prejudice to the parties and the child in any
further delay of the proceedings.
Therefore, we conclude that
the circuit court did not abuse its discretion in allowing
counsel to withdraw without granting a continuance.
Hall next argues that the findings of fact that form
the basis of the circuit court’s custody decision are clearly
erroneous, that is, they are not supported by substantial
evidence.
KRS 403.270(2) provides, in pertinent part, that
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,
3
Simpson v. Sexton, 311 S.W.2d 803, 805 (Ky. 1958).
4
See Ky. Rev. Stat. (KRS) 403.310(1).
-4-
and any other person who may 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;
(f) Information, records, and evidence of
domestic violence as defined in KRS 403.720…
Hall argues that the circuit court failed to consider
these factors.
What he is actually arguing is that the court
did not consider every factor outlined in the statute and make a
finding on each one.
Even so, because Hall failed to request
additional findings pursuant to Kentucky Rules of Civil
Procedure (CR) 52.02, he failed to preserve this issue for
review.5
While he insists that a CR 52.02 motion was not
necessary because this Court remanded for consideration of the
statutory factors, his argument is not well taken.
The case was
remanded because the original custody order failed to make any
of the findings required by KRS 403.270.
In contrast, on remand
the circuit court did make specific findings to support its
custody decision.
In support of its conclusion that it was in Sissy’s
best interest for Luedtke to be the primary residential
custodian, the court found that Hall was the parent most likely
to interfere with Sissy’s access to and love and attention from
5
Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982).
-5-
the child’s other parent, her mother.
This determination was
based on Hall’s history of moving Sissy in order to interfere
with Luedtke’s ability to see the child at school, interfering
with Luedtke’s ability to have Sissy’s school photographs, and
interfering with Luedtke’s involvement in meeting Sissy’s
healthcare needs.
The court also found that Hall’s disability,
for which he took pain medication, and the severe health
problems of another child living in his home made him less able
than Luedtke to meet Sissy’s day-to-day needs.
The court
focused on the interaction and interrelationship of Sissy with
those who significantly affect her best interests; her
adjustment to home, school and community; and the physical
health of those involved.
Nothing more was required.
Even had Hall preserved the issue, we would decline to
set aside the findings of fact because they are not clearly
erroneous.6
A finding of fact is “clearly erroneous” if it is
not supported by substantial evidence, that is, evidence
sufficient to induce conviction in the mind of a reasonable
person.7
After review of the testimony taken at the final
hearing, it is apparent that the circuit court’s findings of
fact are supported by substantial evidence.
6
Therefore, it was
Ky. R. Civ. Proc. (CR) 52.01; and see B.C. v. B.T., 182 S.W.3d 213 (Ky. App.
2005).
7
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
-6-
not an abuse of discretion for the circuit court to conclude
that it was in Sissy’s best interest to reside with her mother.
For the aforementioned reasons, the custody order from
which this appeal is prosecuted is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Gerald Martin
Winchester, Kentucky
Lois Matl Prewitt
Lexington, Kentucky
-7-
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