T. (C.) VS. T. (F.), ET AL.Annotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NOS. 04-CI-02076,
05-J-01407 & 05-J-01408
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES;
I.T., A CHILD; AND I.T., A CHILD
** ** ** ** **
BEFORE: ACREE, CLAYTON, AND KELLER, JUDGES.
KELLER, JUDGE: C.T. appeals from the consolidated cases of a
dissolution/custody action and the companion dependency/neglect/abuse action
decided by the Fayette Family Court. For the reasons set forth below, we affirm.
In May of 2004, a “self help” legal service petition for dissolution of
marriage was filed pro se by C.T. (hereinafter Mother) with an answer and
affidavit in support of the final decree filed pro se by F.T. (hereinafter Father). A
document entitled “marital settlement” was filed simultaneously, purporting to
settle by agreement all marital affairs with respect to property and child support
and other financial matters. The document evidenced an agreement to joint legal
custody of a son born in 1999 and a daughter born in 2001 with alternate weekly
visitation. Prior to the entry of any order of the court, Father retained counsel who
filed a motion to have Father named primary residential custodian. The motion
alleged that Mother had allowed the children to associate with nefarious
individuals she had met while employed as an exotic dancer at a strip club. There
were additional allegations that Mother was using alcohol and drugs and taking the
children on “dates”. Mother responded alleging cruel and abusive behavior
directed toward her by Father. A custody evaluation was ordered in September of
2004 due to the allegations and failure of the parents to resolve the issue by
Thereafter, Mother petitioned the Fayette District Court for a domestic
violence order on two occasions. The final domestic violence petition alleged that
Father had sexually abused the children. In September 2005, the circuit court
ordered the DVO dismissed,1 but suspended Father’s visitation and later mandated
his visitation be supervised. In November 2005, Father filed a motion to limit
Mother from spending the night with T.L. (hereinafter boyfriend) while in the
company of the children.
In July 2006, a seven-day trial was conducted. Evidence was given
that Mother had left the children in the care of her boyfriend for extended periods
of time and she allowed her children to be driven by her boyfriend, despite
knowing that his driver’s license was suspended due to a conviction for Second
Offense Driving Under the Influence. Numerous absences from school were also
noted. Multiple expert witnesses testified as to the interviews they had conducted
with the children and their opinions regarding the abuse allegations. The Court
found that Father had not abused the children2 and awarded joint custody to the
parents. The circuit court ordered gradual implementation of equitable timesharing
and set out guidelines for the parents to follow, including therapy for the children,3
and prohibited the parents from disparaging each other.
Almost immediately, problems with parenting time ensued and
continued, with accusations of misbehavior on the part of Mother, and reluctance
The court ordered the parties to have no contact with each other, except what contact was
necessary to effectuate visitation.
Father was never charged with a crime. The children denied any abuse in a forensic interview
conducted by the Children’s Advocacy Center. The video of this interview was later introduced
as evidence during the July 2006 hearing.
The order of the court of September 2006 consists of 43 pages.
on the part of the son to visit with his Father. Throughout the fall of 2006, matters
continued to escalate with Mother referring to Father as an “abuser” and “pervert”
within earshot of the children. The circuit court then entered Emergency Custody
Orders directing the children to be placed in foster care.
During a hearing conducted in December 2006, the circuit court heard
testimony by the therapist for the children that Mother had caused the children to
miss a therapy appointment. Additionally, the designated visitation supervisors
testified to Mother’s hostile and threatening behavior toward them in the presence
of the children. The court then ordered the children placed with the Cabinet for
Families and Children, restricting both parents to supervised visitation. After a
prolonged hearing in January 2007, the court found the children to be neglected
and that Mother had inflicted emotional injury upon the children, which was
documented in a fifteen page judgment.
Subsequently, the quality of the visits between Father and the children
dramatically improved. The children remained in foster care and eventually Father
moved for sole custody. The circuit court, in a hearing held in February 2007,
overruled the motion “at this time” and set the motion for reconsideration at a later
date. The motion remained pending and the court outlined a timesharing schedule.
The court ordered counseling with a different therapist, Kristi Brooks (Brooks).4
In April 2007, the court held yet another hearing due to visitation
problems. Brooks communicated to the court that Mother had failed to attend a
The previous therapist declined to conduct further therapy with the children due to unpaid bills.
counseling session. The court then ordered Mother to have no contact with the
children outside the presence of Brooks due to the ongoing problems with
visitation and her failure to follow the court’s previous orders.
In June 2007, the court held a hearing on the original custody motion.
During the two day hearing, testimony revealed Mother had once again violated
the court’s order prohibiting her from having contact with the children outside of
Brooks’ presence and she had again made inappropriate comments to the children.
Conversely, the court heard testimony that visitation between Father and the
children showed marked improvement. The court also heard evidence of property
issues during the June 2007 hearing, and entered a separate order in July 2007
dividing what remained of the marital estate.
After this hearing, but prior to the court entering its written order
granting Father sole custody,5 two events occurred. First, Mother filed a motion
requesting the Judge to recuse himself, based primarily upon Brooks’ testimony
that she believed the Judge to be biased. Brooks had testified that she believed the
Judge’s bias was evident as it was his goal to return the children to Father.
Second, Mother’s boyfriend was arrested for attempting to hire an undercover
police officer to kill Father. Police reported the boyfriend provided cash, pictures
of Father, and his work and vehicle information. The detective had observed the
boyfriend’s car at Mother’s home after the attempted procurement of the hit man,
and additionally had monitored his cell phone activity with Mother.
The circuit court’s Findings of Fact and Conclusions of Law are twenty-six pages long.
The court heard testimony from the detective in August 2007,
whereupon Mother invoked her right against self incrimination when asked why
she continued to see her boyfriend after his arrest, and refused to answer any other
questions relating to the boyfriend’s alleged criminal act. The court then denied
visitation to Mother until these questions were answered and confirmed Father’s
status as sole custodian. The court also overruled the motion to recuse and entered
Amended Supplemental Findings of Fact and Conclusions of Law and the Property
Decree on August 14, 2007. This appeal followed.
STANDARD OF REVIEW
Our standard of review in a case involving dissolution of marriage and
child custody is whether the trial court abused its discretion. “The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” McKinney v. McKinney, 257 S.W.3d
130, 133 (Ky. App. 2008). A reviewing court may not substitute findings of fact
for those of the trial court unless they are clearly erroneous. Bennett v. Horton,
592 S.W.2d 460 (Ky. 1979). A factual finding is not clearly erroneous if it is
supported by substantial evidence. “‘Substantial evidence’ is evidence of substance
and relevant consequence sufficient to induce conviction in the minds of
reasonable people.” Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002). The
Kentucky Rules of Civil Procedure (CR) 52.01 instruct: “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.”
As to the division of property within a dissolution proceeding, the trial
court likewise must apply the facts to the law of the case. “The property may very
well have been divided or valued differently; however, how it actually was divided
and valued [is] within the sound discretion of the trial court.” Cochran v.
Cochran, 746 S.W.2d 568, 569-70 (Ky. App. 1988) (citation omitted).
Mother has alleged error due to the trial judge’s refusal to recuse
himself from the case in June 2007. “[T]he standard for determining whether a
motion [to recuse] is legally sufficient is whether the facts alleged would place a
reasonably prudent person in fear of not receiving a fair and impartial trial.” Dean
v. Bondurant, 193 S.W.3d 744, 748 (Ky. 2006)(emphasis in original). With the
above factual background and the applicable standards of review ascribed, we will
address the issues raised by Mother in the order set forth below.
I. Division of Property
Mother argues in her appeal that the family court erred in awarding
Father nearly all of the marital assets. A review of the record does not support this
contention. To be clear, there is no statutory basis requiring that property be
divided equally. “Rather, the trial court is to divide the marital property in just
proportions, considering all relevant factors.” Wood v. Wood, 720 S.W.2d 934,
935 (Ky. App. 1986).
In the instant case, we cannot say that the division of the marital assets
was clearly erroneous or an abuse of discretion. On the contrary, the record
reveals that what remained of the couple’s assets consisted of debts one or both
had incurred. Father had spent a great deal of money in attorney fees defending
against accusations made by Mother. Mother testified that the great majority of
her attorney fees were paid by others or were free.6 Referencing the prior “selfhelp” settlement agreement, which the family court found on its face to be fair and
equitable to both parties, the court divided the various debts and assets essentially
according to the couple’s initial agreement. We conclude the court committed no
error and divided the debts in just proportions.
II. Recusal of the Trial Judge
The motion for recusal of the trial judge pursuant to Kentucky
Revised Statute (KRS) 26A.015 was made and overruled at the end of an
exceptionally protracted and bloody custody battle. Given the sheer amount of
time spent, the volumes of facts found, and the factual findings entered, Mother’s
allegation that the court had pre-judged the case borders on the absurd. Similarly,
Mother’s accusation that the judge was prejudiced against her because of her
employment as a stripper is clearly refuted by the fact that the court gave Mother
sole custody from August of 2005 until August of 2006.
Mother had had no less than six separate attorneys represent her during the pendency of this
case. Father maintained the same attorney/firm throughout the proceedings.
Likewise, the use by Mother of the allegations of Kristi Brooks is
wholly without merit. Brooks was bothered by the court’s direction that she
counsel the children based upon the goal of returning custody to Father.
[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an
opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474
There is nothing in the record to suggest that the court could not judge
the case fairly. It appears that Brooks misunderstood her role in the proceedings
and the legal implications of the term “custody,” which led her to the conclusion
the court was biased. Nevertheless, the court acted properly and with admirable
patience throughout this difficult case. The family court noted in its order of
August 14, 2007, “After hearing evidence for many hours, and days, and now
years, this court indeed has formed ‘opinions’ about the case . . . Mother does not
like this court’s findings, but that is not a basis for ‘recusal’.” We agree.
III. Emotional Injury
Mother’s next assertion is that the court erroneously found the
children suffered “emotional injury” as defined by statute. KRS § 600.020 (24)
defines “emotional injury”:
an injury to the mental or psychological capacity or
emotional stability of a child as evidenced by a
substantial and observable impairment in the child's
ability to function within a normal range of performance
and behavior with due regard to his age, development,
culture, and environment as testified to by a qualified
mental health professional[.]
Mother argues that the evidence does not support the conclusion that the children
were dependent, neglected or abused and thus should not have been removed from
her custody and placed in foster care. On January 19, 2007, the court entered
supplemental findings of fact in the juvenile cases following an Emergency
Custody Order entered December 1, 2006.
In the supplemental findings, the family court detailed the testimony
upon which it relied, along with findings that the parties failed to comply with
previous orders to engage in parenting coordination. Mother was found to have
violated an order to cooperate with supervised visitation. Furthermore, Mother
failed to cooperate with therapy for the children and had violated the order to
refrain from denigrating Father in the presence of the children. The court
referenced testimony and opinions of a qualified mental health professional from
the Children’s Advocacy Center who had testified at the trial and the hearing
which took place in January of 2007. This “child victim therapist” had conducted
therapy with the children and gave her opinion concerning the welfare of the
children. This testimony, along with the above noted violations of court orders
unambiguously substantiated the finding that the children were neglected and
suffered emotional injury within the plain meaning of KRS 600.020(24).
IV. Modification of Custody
Under KRS 403.270(2), the circuit court is required to determine
custody in accordance with the best interests of the child by considering the
(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 significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and
(e) The mental and physical health of all individuals
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child
with a de facto custodian; and
(i) The circumstances under which the child was placed
or allowed to remain in the custody of a de facto
custodian, including whether the parent now seeking
custody was previously prevented from doing so as a
result of domestic violence as defined in KRS 403.720
and whether the child was placed with a de facto
custodian to allow the parent now seeking custody to
seek employment, work, or attend school.
Mother maintains first, that the family court did not have jurisdiction
due to the failure of Father’s motion to be accompanied by two affidavits as
required by KRS 403.350. This allegation is specious and mystifying as two
affidavits are attached to the motion for sole custody filed by Father on February 7,
Second, Mother objects to the family court’s refusal to speak to the
children or allow them to testify. Mother asserts the court did not consider the
children’s wishes or the interrelationship between family members as required by
the statute. Correspondingly, she complains the guardian ad litem (GAL) did not
interview the children during the pendency of the proceedings.
In her brief, Mother cannot realistically dispute the detailed reasoning
offered by the family court to support its ruling of sole custody for Father.
Multiple witnesses testified to Mother’s extreme behavior and her ongoing
disregard for the court’s orders. The family court articulated a clear basis in fact
and correctly applied the law to the facts. Mother allowed herself to become so
enraged, as to, at the very least, incite her boyfriend to hire a “hit man” to do away
with the children’s Father. Prior to this event, the court acted properly in denying
unfettered access to the children by Mother. Once the plot was exposed, the proof
of the precision with which the court judged this matter became abundantly clear.
Lastly, we do not condemn but rather applaud the court for using its
discretion to disallow testimony from two young children who were clearly
traumatized by the enduring drama of their parents divorce. Furthermore, it
appears that the GAL adequately advocated for his clients’ best interests without
subjecting them to yet another “expert” interview that is not required by law. The
GAL and the court had the benefit of numerous opinions from experts as well as
other witnesses to form their assessment of a then eight-year-old boy and fiveyear-old girl. Their young age and the pressure applied by Mother severely
diminish, if not completely obscure, the value of their opinions or testimony. The
continued pursuit by Mother to put her children directly in the “line of fire,” only
further proves the soundness of the family court’s judgments.
For the above reasons, the orders of the Fayette Circuit Court are
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas M. Denbow
Natalie S. Wilson
Nora A. Koffman