T.A.N. VS. M.J.Annotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
T. A. N.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 06-CI-500014
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: T.A.N. [hereinafter Mother] appeals an order entered by the
Jefferson Circuit Court, providing additional visitation to her ex-boyfriend, M.J.
[hereinafter Father]. After careful review, we affirm.
Mother and Father were never married, but lived together briefly and
conceived a child, S.N. [hereinafter Child], born December 6, 2005. Mother
claims that she moved out of Father’s house due to domestic violence and because
there were numerous people in and out of his home. Not long after moving out,
she found out she was pregnant and informed Father. During her pregnancy,
Mother’s relationship with Father was strained and they did not have much contact.
At the hospital during the birth of Child, Mother alleges that Father threatened her
and that she threatened to call security if he did not leave. Father reported to Child
Protective Services that Mother had been using marijuana during her pregnancy
and asked that a drug test be performed on her and the baby. Apparently, no such
testing was ever conducted. Mother and Father had no further contact until they
went to court to determine custody and visitation.
Initially, Mother and Father agreed on a temporary visitation schedule
during mediation on February 1, 2006. That schedule allowed Father visitation
every Tuesday and Thursday from 5:00 p.m. until 8:00 p.m. and every other
Sunday from 2:00 p.m. until 5:00 p.m. At that time, the parties also agreed that Dr.
Jennifer Cebe would perform a custodial evaluation so that a parenting schedule
and primary custodian could be designated. Mother and Father also agreed that
either party had the right to request the other to participate in a drug screening and
that Father was to pay the costs for such tests. In an order dated April 11, 2006,
the court adopted the agreements in the mediation and appointed Dr. Cebe to
perform a custody and visitation evaluation.
A hearing was scheduled for May 10, 2006, regarding the parenting
schedule but was postponed until June 28, 2006, to allow for the custodial
evaluation to be completed. Meanwhile, on May 30, 2006, Mother filed a motion
to suspend Father’s visitation with Child. As grounds for this motion, Mother
stated that while returning Child to her Mother’s home on May 16, 2006, Father
smelled of alcohol, had an open container of alcohol in the car, and ran his vehicle
into a ditch. On June 28, 2006, Mother’s motion was overruled and an order was
entered on June 29, 2006, establishing that Father would have unsupervised
visitation every Tuesday and Thursday from 4:30 p.m. to 7:30 p.m. and every
Saturday from noon to 6:00 p.m.
On July 11, 2006, Mother filed a motion for the court to clarify its
judgment and to provide particularized additional findings of fact, for supervised
visitation, and for clarification on the required drug testing established in previous
orders. On November 15, 2006, the parties entered into an agreed order in lieu of a
trial/substantive hearing on custodial and parenting time issues. At this time, the
parties had not completed the evaluation process with Dr. Cebe and instead agreed
to attend mediation.
As matters had not been resolved, on June 20, 2007, the court ordered
Father to contact Dr. Cebe and arrange for a time for an interview. This was to be
done in time for Dr. Cebe to present a report at the trial on October 10, 2007. The
court also ordered Father to submit to drug screening on a weekly basis, and if the
report was not obtained prior to Father picking up Child for his visitation, that
visitation was forfeited until the following week at which time Father had to show
compliance with the order. Father was also ordered to arrange for Allergen
Control to inspect his home for air quality, due to Child often coming home from
his house with illnesses. The order reflects that this specific instruction was
On October 10, 2007, Mother filed a trial memorandum indicating
that on that day, the day of the scheduled trial, the case was called and Mother was
advised that Father’s attorney had an illness and was told to reschedule the trial
date. At this time, Mother indicated Father had not complied with the court’s
previous June 20, 2007, order. As of that date, Mother claimed Father had made
no effort to contact Dr. Cebe and had not complied with the court ordered drug
screens. Father testified that he had contacted Dr. Cebe but without prepayment
she would not begin the custodial evaluation.
On November 9, 2007, the matter finally came before the court for the
child custody and parenting trial, and upon Father’s motion for expanded
visitation. Both sides testified and presented witness testimony supporting their
respective stances. Father testified that he could not afford the custodial evaluation
and that accordingly, he had violated the court’s previous orders. Based on this
violation, Mother wanted visitation to remain the same until such custodial
evaluation could be completed. The record reflects that the trial court determined
that the case could proceed without the custodial evaluation, given that a home
study had previously been conducted in 2006 and that the case focused largely on
factual issues, which were able to be addressed through testimony and argument.
The court noted that it had not ordered the custodial evaluation, but instead that the
parties had agreed to it in mediation and the court had later approved of this
agreement. However, given the length of the case and the sensitive issue of a
child’s welfare at stake, it thought it best to proceed.
In its order entered November 14, 2007, the Jefferson Circuit Court
made several findings of fact. It found that Father wanted more time with Child,
that Father’s testimony was that he did not use drugs, and that Father had enrolled
in a parenting class to prepare to care for a baby. It found that Father has sole
custody of another daughter, whom the court stated was “thriving in his care and is
an honor roll student.” Further, the court took judicial notice of parenting concerns
regarding Mother due to her previous drug convictions and the removal of sibling
children through state prosecuted child protective actions.
The court then awarded sole custody of Child to Mother due to “the
extent of domestic violence in the relationship.” The court ordered that all
exchanges of Child should occur in public or at the exchange center. The
parenting schedule was established as follows: “[Father] shall have parenting time
with the minor child on Friday from 5:00 p.m. until Sunday at 5:00 p.m. three out
of every four weekends beginning with the first weekend of the month. [Father]
shall have overnight visits with the minor child on Tuesdays after 5:00 p.m. until
Wednesday morning when he shall drop the child off at daycare. The parties shall
alternate holidays, and the parent exercising parenting time on the holiday shall
have the child overnight.”
On November 20, 2007, Mother filed a motion to modify visitation,
which was supported by her affidavit. She requested that the visitations be
modified to alternate weekends from Friday at 5:00 p.m. to Sunday at 3:00 p.m.
and Tuesday evenings from 5:00 p.m. to 8:00 p.m. In her affidavit, Mother argued
that at the trial on November 7, 2007, the only competent evidence the court had
before it was the home study done by Horrar and Associates in March and April of
2006. She argued that based on these evaluations, the parties had agreed that
custodial evaluations by Dr. Cebe were to be scheduled, and the court had later
ordered such an evaluation. She renewed her previous arguments that Father had
not complied with previous court orders regarding the custody evaluation or the
required drug screenings. She then argued that the court had ignored its own
orders and had instead allowed Father to verbally smear her character by asking the
court to take judicial notice of dependency actions that were eight years old.
Mother argued that the court was selectively picking out pieces of an eight year
puzzle and that the puzzle would have been complete had the custodial evaluation
been performed per the court’s previous orders. Finally, Mother argued that she
believed the visitation schedule she was requesting was the standard visitation
schedule when one parent has sole custody and the other visitation.
Father responded to Mother’s motion, arguing that he could not afford
the allergy testing of the home, the drug tests, or the custodial evaluation. He
argued that the court was not in error to conduct the trial without the custodial
evaluation and drug tests, because the court still allowed both sides to present
evidence and testimony. The trial court overruled Mother’s motion on December
5, 2007. The order states no grounds for the trial court’s ruling but simply says the
motion to alter, amend or vacate is overruled. Mother now appeals the denial of
her motion to modify visitation.
Mother argues that the trial court erred by ignoring its own previous
orders and allowing the case to be tried without the custodial evaluation it had
previously ordered; for ignoring the prior orders regarding weekly drug screenings;
in not taking into consideration her work and school schedule when ordering the
parenting schedule; and in not taking into consideration the results of home study
We review the trial court’s visitation orders under an abuse of
discretion standard, as visitation rights are found to be an area within the discretion
of the trial court. Wilhelm v. Wilhelm, 504 S.W.2d 699 (Ky. 1973). “An abuse of
discretion occurs when a ‘trial judge's decision [is] arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.’” Farmland Mut. Ins. Co. v. Johnson, 36
S.W.3d 368, 378 (Ky. 2000) (quoting Goodyear Tire and Rubber Co. v. Thompson,
11 S.W.3d 575, 581 (Ky. 2000)).
In this case, after several hearings and a lengthy trial, which included
testimony of both parties and several witnesses, the trial court determined that sole
custody should be with Mother with Father to have the visitation described above.
Up until the day of the trial, Father had been permitted only twelve hours a week
with his daughter. The trial court found that there was no concrete evidence that
Father was a bad father, and that in fact the evidence showed that Father had
passed his drug tests and had raised his older daughter to be an honor roll student.
Furthermore, the record reflects that Father had not had any prior drug convictions
or child protection actions regarding either of his children. Based on the lack of
any evidence to the contrary, the court determined that Father was fit to parent the
child and awarded him the visitation it saw fit under the circumstances.
While Mother now claims that a custodial evaluation was necessary
and that in fact the court had ordered it, the record reflects that the parties agreed to
this during an early mediation when the baby was only months old and that the
court adopted their agreement into the record. At no time did the court, on its own,
determine that a custodial evaluation was necessary. When neither party could
afford to pay for the evaluation, the court determined that it was not necessary and
proceeded with the trial. This decision, well within the trial court’s power, does
not rise to an abuse of discretion. If anything, it makes sense given that this case
had gone on for two years, a lengthy time for a child custody and visitation case.
While Mother would have us say that Father’s failure to pay for the custodial
evaluation makes him an unfit father not worthy of increased visitation, we simply
disagree. The record reflects sufficient evidence to support the trial court’s
decision to proceed without the custodial evaluation and supports the court’s award
of increased visitation to Father.
Mother’s claim that the trial court ignored its previous orders
regarding drug screenings is without merit. The record reflects that Father
underwent drug screenings for seven months, none of which came back positive
for drug use. The court heard testimony that Father could no longer afford to have
weekly screenings and was not being permitted to see Child, even when the
screenings came back negative. Thus, while Mother assumes the court ignored its
previous rulings, the record reflects that the court determined that the drug tests
were no longer necessary and that a child custody determination should be made
and a visitation schedule established.
Mother’s claims that the court did not take into account her school and
work schedule were not preserved on appeal, and therefore we need not address
Finally, the record reflects that the court did take into consideration
the home study performed in March 2006. This home study was discussed at
length and several witnesses testified regarding the findings. In fact, Father was
questioned about this and testified that he had enrolled and completed parenting
classes, which was the only issue cited in the home study. Otherwise, the record
reflects that the home study recommended joint custody of Child.
Based on the foregoing, we do not find that the Jefferson Circuit
Court’s award of visitation to Father was an abuse of discretion. Accordingly, the
court’s order is affirmed.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
T.A.N., Pro Se