ARBAUGH (JASON) VS. ARBAUGH (MISTY)Annotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JASON SHEA FLEMING, JUDGE
ACTION NO. 01-CI-01184
MISTY ARBAUGH (NOW FRENCH)
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BEFORE: ACREE AND CLAYTON, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
GUIDUGLI, SENIOR JUDGE: Jason Arbaugh appeals from an order denying his
motion to modify custody of a minor child. We affirm.
Jason Arbaugh and Misty Arbaugh (now French) married in 1997.
They have one daughter, Brooke Haley Arbaugh, who was born in 1998. Misty
has another daughter, Faith, from a previous marriage. The parties were divorced
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
in 2002. They were awarded joint custody of Brooke with Misty being the primary
residential custodian. Subsequent to the divorce, Misty and Brooke resided in
several different locations: in Christian County until August 2002; in Graham,
Kentucky, until January 2003; in Greenville, Kentucky until November 2004; in
Nicholasville, Kentucky for a short time before moving to Littlefield, Texas, until
September 2005. At the time of the commencement of this action, Misty and
Brooke lived in Missouri while Jason lived in West Virginia. Issues relating to the
custody of Brooke continued to be litigated in Christian Circuit Court.
In September 2005, the trial court entered an order granting Jason
temporary custody of Brooke. Following a hearing, the trial court entered an order
in March 2006 granting temporary joint custody to the parties with Jason being the
primary residential custodian pending the resolution of his motion to modify
custody. The trial court held a final evidentiary hearing on March 19, 2007.
Subsequently, it was discovered that Jason’s then-wife, Tami Arbaugh, presented
false and fabricated evidence to the court. A supplemental hearing was held.
Ultimately, in an eighteen-page opinion, the trial court ordered that the parties shall
retain joint custody with Misty serving as primary residential custodian. This
Jason argues that the trial court’s finding that modification of custody
was not in Brooke’s best interest was clearly erroneous and constituted an abuse of
discretion. Kentucky Rules of Civil Procedure (CR) 52.01 applies to custody
proceedings. Reichle v. Reichle, 719 S.W.2d 442, 445 (Ky. 1986). CR 52.01
“provides in part that findings of fact shall not be set aside unless clearly erroneous
with due regard given to the opportunity of the trial judge to view the credibility of
the witnesses.” Id. On appellate review, “the test is not whether we would have
decided differently but whether the findings of the trial judge were clearly
erroneous or he abused his discretion.” Eviston v. Eviston, 507 S.W.2d 153 (Ky.
Modifications of joint custody arrangements are governed by KRS
403.340 and KRS 403.270. Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky. App.
2004). KRS 403.340(3) states:
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
(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
(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
KRS 403.270(2) states:
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 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.
The trial court made exhaustive findings of fact in relation to the statutory factors.
While it is clear that both Jason and Misty have Brooke’s well-being at heart,
neither party is a perfect parent. There is evidence in favor of both sides. It is
within the exclusive province of the trial to weigh the evidence and judge the
credibility of witnesses. The trial court found that Jason’s overall credibility was
diminished because of the evidence Tami Arbaugh fabricated. We cannot
conclude that its decision was arbitrary in this regard. Moreover, our review of the
order reveals that the trial court applied the facts to the statutory factors in a
reasoned and evenhanded manner. As the trial court’s findings were supported by
substantial evidence, they will not be set aside. There was no abuse of discretion.
Accordingly, the order of the Christian Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia T. Crenshaw
Katherine Hicks Demps