STROSNIDER (BRIAN) VS. GWINN (REBECCA)Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GREENUP FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 05-CI-00599
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BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
KELLER, JUDGE: Brian Strosnider2 (“Brian”) has appealed from the Greenup
Family Court’s award of visitation with his minor son, asserting that he was
provided with substantially reduced parenting time than he had been receiving
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.
As mentioned in Footnote 1 of Brian’s brief, his last name was misidentified as “Stosnider”
rather than “Strosnider” throughout the family court’s record. We shall utilize the correct
spelling of his name in this opinion.
under an arrangement reached between Brian and his son’s mother, Rebecca
Gwinn (“Becky”). We affirm.
Brian and Becky, who have never married, are the biological parents
of Jacob Connor Strosnider, born March 24, 2003. When Jacob was two months
old, Brian filed a Petition for Custody in Boyd Circuit Court,3 where Brian lived
and Jacob was born. Brian requested either physical custody or visitation on his
days off from work. On June 6, 2003, the circuit court entered an order permitting
Brian to have visitation with Jacob on a temporary basis from 10:00 a.m. to 5:00
p.m. on Mondays and Tuesdays.4 Becky filed a counterclaim, requesting custody
and child support. On June 27, 2003, the circuit court ordered Brian to pay Becky
$580 per month in child support. Nothing happened in the case for more than two
years, until Brian retained a new attorney and filed an amended Petition for
Custody on September 20, 2005. Since April 2004, Brian, Becky, Jacob, and
Becky’s older son, Joshua, had been living in Brian’s house in Flatwoods, Greenup
County, Kentucky. During that time, Brian continued to pay Becky child support.5
Becky moved out of Brian’s home when he filed his amended petition, and bought
a house in Worthington, Kentucky, near her mother.
Becky moved for a change in venue, as they were all permanent
residents of Greenup County. The motion was granted, and the matter was
This order was set aside, on Brian’s motion, on September 23, 2005.
When Becky started working at Peoples Bank, Brian’s child support obligation was reduced to
$480 per month.
transferred to Greenup Family Court on September 30, 2005. The case languished
in the family court until a Notice to Dismiss for Lack of Prosecution was entered
on April 19, 2007. A status conference was held on June 20, 2007, when the
family court entered an Agreed Order scheduling a portion of Brian’s yearly
visitation with Jacob from July 8 through July 18, 2007. The family court also
scheduled a hearing on the merits for July 24, 2007.6 That hearing took place over
two days, July 24 and August 7, 2007. Over the course of those two days, the
family court heard testimony from Brian, Becky, Brian’s parents, Becky’s mother
and sister, and several of Brian’s and Becky’s friends and acquaintances.
Throughout the testimony, it was undisputed that both Brian and Becky are good
parents to their son.
Much of the testimony presented at the hearing centered on the agreed
upon visitation schedule that had been in effect since Becky moved out in
September 2005. We note that this agreement had never been reduced to a written
court order, and that no court had ever entered a permanent order concerning
custody or visitation. We shall attempt to summarize that schedule here. We note
that Brian is a supervisor at CSX, where he works second shift from 2:00 p.m. to
11:00 p.m. from Wednesday to Saturday and from 6:00 a.m. to 3:00 p.m. on
Sunday. Becky works full-time Monday through Friday until 5:00 p.m. at Peoples
Bank in Ashland. During a typical week, Brian would get Jacob between 6:30 a.m.
In the hearings that followed, there was testimony concerning the June 20, 2007, hearing.
However, that hearing was not designated to be part of the record on appeal and accordingly was
not included in the certified record.
and 7:30 a.m. on Monday and would keep him until Wednesday at 2:00 p.m.
Brian’s parents would watch Jacob each Wednesday afternoon until Becky picked
him up when she completed work for the day. Brian would also have Jacob on
Thursday and Friday from 6:30 a.m. or 7:30 a.m. until 2:00, when he went to work.
His parents or Becky’s mother would watch Jacob until Becky completed her work
for the day. Becky would then have Jacob on Saturday and Sunday, her days off.
Based on this schedule, Becky would have Jacob overnight from Wednesday
During his testimony, Brian indicated that he wanted the family court
to award him time with Jacob on Mondays and Tuesdays, to award Becky time
with Jacob on Wednesdays and Thursdays, and for the parties to alternate the
remainder of the week (Fridays, Saturdays, and Sundays). Brian also requested
time with Jacob for the first and second weeks of both June and July. During her
testimony, Becky indicated that she wanted the schedule with Jacob to continue as
it had been. We note that at the time of the hearing, Jacob was four-years-old and
was scheduled to start preschool in August.
On August 8, 2007, the family court entered an order awarding joint
custody and establishing a visitation schedule. The pertinent part of that order is as
Based on the evidence presented at the hearing
herein the Court finds it would be in the best interest of
the child to grant the parties joint custody. Both parents
are good parents and appear to be reasonable people. . . .
The Court finds that the pattern in the past established by
the parties is that Mr. Stosnider [sic] would receive the
child Monday morning between 6:30 – 7:00 a.m. until
Wednesday evening when Ms. Gwinn would pick up the
child. With Jacob starting school this fall it is not fair to
him to require the child to be taken to the father’s home
on Thursday and Friday morning and then brought back
to the mother that evening. Also, Mr. Stosnider [sic]
works Wednesday through Sunday and Monday and
Tuesday are his days off. Jacob would be able to spend
more time with a parent under this arrangement. Because
of the stability that is needed in Jacob’s life, the Court
finds it would be in the best interest of Jacob to grant
primary residential custodian [status] to Ms. Gwinn and
secondary residential custody to Mr. Stosnider [sic] with
Mr. Stosnider [sic] receiving the child from Monday
morning between 6:30 – 7:30 a.m. until Wednesday
when Ms. Gwinn gets off work. Ms. Gwinn would then
have custody of the child until the following Monday
morning. The parties are ordered to follow the Greenup
County Visitation Guidelines in regards to holiday
visitation. Mr. Stosnider’s [sic] request to have the child
the first two weeks of June and the first two weeks of
July for his summer visitation time with the child is
granted. The Court has utilized the factors in KRS
403.270 in determining this custody arrangement.
The family court then ordered Brian to pay Becky $595 per month in child support
and allowed the parties to alternate the tax exemption for Jacob from year to year.
The family court also restrained Brian from contacting Becky at home or at work,
except to arrange visitation. Regarding transportation, Brian was ordered to pick
Jacob up on Monday mornings and Becky was to pick him up on Wednesday
evenings. Finally, the family court reminded Brian and Becky that each of them
had the responsibility to get Jacob to school on the days that each had custody of
Brian filed a motion to alter, amend, or vacate the family court’s order
on two grounds. The first addressed his interpretation of the family court’s order
restraining him from contacting Becky by telephone, in that it appeared he was
being prohibited from contacting Jacob while he was with Becky. Brian requested
that he be permitted one call per day to Jacob when they were not together. The
second ground was based upon Brian’s assertion that the family court’s visitation
schedule greatly reduced the time he was able to spend with Jacob. Although not
supported by way of affidavit or testimony, Brian disclosed for the first time in his
motion that Jacob’s preschool started at 12:00 p.m. and that there was no preschool
on Fridays. Accordingly, Brian requested time with Jacob on Thursdays from
between 6:30 a.m. to 7:30 a.m. until Jacob’s preschool started at noon and on
Fridays from the same time until Becky completed work.7 In addition, Brian
requested time with Jacob every other Sunday starting at 3:30 p.m., which would
extend through Wednesday. Becky objected to Brian’s motion, asserting that his
arguments regarding visitation were merely a re-argument of the issues already
decided. In an order entered September 5, 2007, the family court allowed Brian
one fifteen-minute telephone call with Jacob at 7:00 p.m. each day they were not
together. However, it denied Brian’s motion in all other respects. This appeal
On appeal, Brian continues to argue that the family court denied his
request for equal and shared parenting time by impermissibly reducing his
We assume that Brian’s parents or Becky’s mother would watch Jacob from the time Brian
went to work until Becky picked him up after work.
visitation time with Jacob. During their prior arrangement, Brian calculated that he
had Jacob for 73 hours per week (43% of the time); his parents had him for 10.5
hours (6 % of the time); and Becky had him for the remaining 84.5 hours (51% of
the time). With its order, Brian contends that his and his parents’ time with Jacob
was reduced to 59 hours per week (35% of the time). In support of his argument,
Brian states that the family court’s findings of fact were contrary to the evidence,
and therefore do not support a valid custody decision under KRS 403.270.
Furthermore, Brian argues that the family court failed to properly apply the
statutory factors as set forth in KRS 403.270. In her brief, Becky contends that
Brian’s motivation for 50/50 parenting status is merely an attempt to avoid paying,
or to substantially reduce, child support. She also argues that the family court’s
ruling recognizes that Jacob is getting older and will be starting full-time school;
the ruling was not made for the sole purpose of reducing Brian’s time with Jacob.
Kentucky Rules of Civil Procedure (CR) 52.01 sets out our standard
In all actions tried upon the facts without a jury or with
an advisory jury, the court shall find the facts specifically
and state separately its conclusions of law thereon and
render an appropriate judgment. . . . 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.
In Moore v. Asente, 110 S.W.3d 336 (Ky. 2003), the Supreme Court of Kentucky
addressed this standard, holding that a reviewing court may set aside findings of
only if those findings are clearly erroneous. And, the
dispositive question that we must answer, therefore, is
whether the trial court’s findings of fact are clearly
erroneous, i.e., whether or not those findings are
supported by substantial evidence. “[S]ubstantial
evidence” is “[e]vidence that a reasonable mind would
accept as adequate to support a conclusion” and evidence
that, when “taken alone or in the light of all the evidence,
. . . has sufficient probative value to induce conviction in
the minds of reasonable men.” Regardless of conflicting
evidence, the weight of the evidence, or the fact that the
reviewing court would have reached a contrary finding,
“due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses” because
judging the credibility of witnesses and weighing
evidence are tasks within the exclusive province of the
trial court. Thus, “[m]ere doubt as to the correctness of
[a] finding [will] not justify [its] reversal,” and appellate
courts should not disturb trial court findings that are
supported by substantial evidence. [Citations omitted.]
Id. at 354. With this standard in mind, we shall review the trial court’s decision.
In his first argument, Brian contends that the family court’s findings
are not supported by the evidence. He asserts that the three grounds the family
court stated for its award (fairness to Jacob; that Jacob would spend more time
with a parent under the arrangement; and stability) are not borne out by the
evidence. As the record stands, we disagree with Brian’s assertion. What the
family court knew when it entered its order was that Jacob was starting preschool
in the fall of 2007; the testimony at the hearing clearly establishes this uncontested
fact. What the family court did not know was when Jacob’s preschool was held;
there was no testimony or other evidence in the record to establish either the days
Jacob would be attending preschool or the hours his preschool class was in session.
Thus, the family court was free to believe that Jacob would be attending all-day
preschool five days per week, which clearly supports its visitation arrangement.
Had the family court been aware of the actual circumstances of Jacob’s preschool
through supporting evidence, its decision might very well have been different. We
note that Brian did not include an affidavit or other documentary evidence in his
motion to alter, amend, or vacate to support his statement in his motion.
Second, Brian contends that the family court did not properly apply
the substantive criteria for child custody determinations pursuant to Kentucky
Revised Statute (KRS) 403.270. While Brian and the family court in its order both
refer to a custody arrangement, we believe that what the family court did was set
up a visitation schedule after deciding to award joint custody and naming Becky
the primary residential custodian. In deciding to award joint custody, which the
parties have not contested, the family court would have determined the best interest
of Jacob and considered the relevant factors listed in KRS 403.270(2).
While we recognize that Brian’s argument centers on custody, as we
have stated, it appears that the true issue before this Court is the amount of
visitation Brian, the secondary, or non-residential, custodian, was awarded.
Kentucky’s General Assembly has provided for visitation through KRS
403.320(1): “A parent not granted custody of the child is entitled to reasonable
visitation rights unless the court finds, after a hearing, that visitation would
endanger seriously the child’s physical, mental, moral, or emotional health.” In
Drury v. Drury, 32 S.W.3d 521 (Ky. App. 2000), this Court addressed the
definition of “reasonable visitation” as follows:
What constitutes “reasonable visitation” is a matter
which must be decided based upon the circumstances of
each parent and the children, rather than any set formula.
When the trial court decides to award joint custody, an
individualized determination of reasonable visitation is
even more important. A joint custody award envisions
shared decision-making and extensive parental
involvement in the child’s upbringing, and in general
serves the child’s best interest. . . . A visitation schedule
should be crafted to allow both parents as much
involvement in their children’s lives as is possible under
Id. at 524. The Drury Court also recognized that “the trial court has considerable
discretion to determine the living arrangements which will best serve the interests
of the children. Furthermore, joint custody does not require an equal division of
residential custody of the children.” Id. at 525. Finally, the Court stated that “this
Court will only reverse a trial court’s determinations as to visitation if they
constitute a manifest abuse of discretion, or were clearly erroneous in light of the
facts and circumstances of the case.” Id.
Based upon the evidence of record, we hold that the family court’s
visitation order was reasonable under the circumstances of this case. It was
undisputed that Jacob was starting preschool shortly after the hearing was held and
the order was entered, and that he would be continuing with school the following
year, and for years to come, on an all-day basis. Even if we were to agree with
Brian that, in light of the facts as he alleged in his motion and brief to this Court,
the family court’s visitation arrangement for at least the year after its entry was
unreasonable, a reversal at this point would be meaningless. By the time this case
was assigned for a decision on the merits, Jacob had already completed his
preschool year, and, according to Becky’s brief, he will be entering a full-day
kindergarten program in the fall of 2008. We agree with Becky that in making its
visitation arrangement, the family court recognized that Jacob was getting older
and was getting ready to enter his school-age years. These are relevant factors for
the family court to consider in determining visitation. Therefore, we hold that the
family court’s findings were supported by the evidence of record, and that it did
not abuse its considerable discretion in deciding Jacob’s living arrangements,
especially based on the evidence before it.
For the foregoing reasons, the judgment of the Greenup Family Court
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Tracy D. Frye
Bruce E. Blackburn