CRABTREE (DEBRA L.) VS. CRABTREE (MICHAEL D.)
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RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000036-ME
DEBRA L. CRABTREE
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 03-CI-01237
MICHAEL D. CRABTREE
APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: ACREE AND CLAYTON, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
CLAYTON, JUDGE: This is an appeal of a custody modification. Based upon the
foregoing, we find that the Daviess Circuit Court’s Order modifying custody must
be vacated and this case remanded to that court for more developed findings.
1
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 Kentucky Revised Statutes
(KRS) 21.580.
FACTUAL SUMMARY
The Appellant, Debra Crabtree, and the Appellee, Michael Crabtree,
were married in 1981 and proceeded to have three (3) children, Benjamin,
Jonathan and Elizabeth. They were divorced in 2003 and Debra was awarded
primary residence of the children. At that time, all three children were minors.
During the marriage, Debra had home schooled the children. While
Michael objected to the continuation of their education in this way, the court found
during the original custody hearing that this method was adequate and allowed
Debra to continue. For the next couple of years, Debra moved the children to
various places in Kentucky and once to Nashville, Tennessee. She continued to
home school the children during this period.
In July of 2007, Debra decided to move the children to Defuniak
Springs, Florida. Her parents reside there and she would have part-time
employment. She intended to continue to home school Jonathan and Elizabeth,
however, Florida would allow the children to attend classes at their public schools
to supplement their educational experience. Debra notified Michael of the
upcoming move and he filed a motion to modify custody.
In August of 2007, the Daviess County Circuit Court found that a
hearing on the motion was necessary and while primary residence was left with
Debra, she was ordered to enroll Jonathan in school.
STANDARD OF REVIEW
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Kentucky Rules of Civil Procedure (CR) 52.01 provides that
“[f]indings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given the opportunity of the trial court to judge the credibility of
witnesses.” A judgment is not “clearly erroneous” if it is “supported by substantial
evidence.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414
(Ky. 1998). Substantial evidence is “evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.” Id., citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298,
308 (Ky. 1972).
DISCUSSION
The Daviess Circuit Court Judge adopted the findings of the Domestic
Relations Commissioner in his Order which modified the Crabtrees’ custody
arrangement. The Commissioner found that while “physical structure does not
dictate whether there is a stable ‘home’ or not, . . . frequent moves do establish a
pattern of instability.” Recommended Order at p. 3. The Commissioner also
concluded that:
Of even greater importance is the schooling
situation. The older boy was unable to get into college
after being home schooled for twelve (12) years by his
mother. He is presently taking prep classes so that he can
be enrolled at Western as a full time student. The tests
conducted by the Hancock County Board of Education
reflected that the two (2) younger children are below
average in nearly all subjects. While their initial grades
after being enrolled in public schools are better than their
test scores would have predicted, there is a need for these
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children to be enrolled in a regular school environment if
they are to have any chance of getting into college.
Id.
Finally, the Commissioner found “that it [was] in the best interest of
the children to change the primary custodian to the Respondent/Father.”
Recommended Order at p. 4. The Commissioner did acknowledge that there was
“considerable friction” between Jonathan and his father, however, he considered
counseling with the two of them to be sufficient in overcoming this problem.
KRS 403.340(3) provides:
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.
The statute goes on to list the considerations a court should take into account when
making a determination regarding the best interests of the child:
(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
health;
(e) Whether the harm likely to be caused by a change of
environment is outweighed by its advantages to him; and
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(f) Whether the custodian has placed the child with a de
facto custodian.
Id.
KRS 403.270(2) provides the following list of
considerations:
(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
community;
(e) The mental and physical health of all individuals
involved;
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.270;
(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 403.270
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.
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The Commissioner’s findings did not specifically set forth his reasons
for finding that a move to live with their father would be in the best interest of the
children. While he set forth that there was “instability” in moving from one place
to another, he did not explain how this was affecting the children. There is nothing
in the record that indicates the children’s best interests were not being met by their
mother in this regard.
The Commissioner also found that attending school rather than home
schooling would be in the best interest of the children. He based this finding upon
Benjamin’s inability to get into Western Kentucky University without taking
additional preparatory classes and the children testing on the low end of their age
range. These findings alone, however, are not sufficient to indicate that the
children’s best interests are not being served by the mother’s home schooling.
Finally, the Commissioner’s finding that there was “considerable
friction” between Michael and Jonathan indicates that it may not be in his
(Jonathan’s) best interest to move into a new environment with his father. While
counseling may help, the Commissioner’s Report did not go into detail regarding
the nature of the friction between Jonathan and Michael.
In short, we find that the Commissioner’s Report does not set forth
findings which indicate that the best interests of the children would be to modify
the current custody arrangement. Thus, we will vacate the Daviess Circuit Court’s
Order Modifying Custody and remand this action back to that court for further
findings. When making those findings, the court should look to the statutes
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previously set forth in this Opinion as guidance in determining what is in the best
interests of the children.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Cheryl N. Cureton
Stacey L. Foster
Brian Quattrocchi
Owensboro, Kentucky
Phillip G. Abshier
Owensboro, Kentucky
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