FIELDS (TARA) JEFFERSON VS. FIELDS (MICHAEL)Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NO. 97-FC-005319
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BEFORE: CLAYTON, DIXON, AND WINE, JUDGES.
CLAYTON, JUDGE: This is an appeal from a decision of the Jefferson Family
Court regarding a Motion for Modification of Custody of the parties’ infant
daughter, Mikella Fields.
Appellant Tara Fields and Appellee Michael Fields were granted a
divorce on March 17, 1998, in Jefferson Family Court. As agreed in their
settlement agreement, the parties shared joint legal custody of Mikella. While Ms.
Fields was the primary residential parent, Mr. Fields had visitation.
On November 15, 2006, Mr. Fields moved the trial court to modify
the custody agreement. Specifically, he requested he be made the primary
residential parent as Ms. Fields had moved to Florida. After hearing testimony
from both parents, the trial judge heard testimony from Mikella regarding her
home life. Ms. Fields contends that the trial judge erred in not allowing her into
the courtroom while Mikella was testifying in camera before the trial judge.
The trial judge heard Mikella’s testimony in camera in her chambers.
Neither the parties nor their attorneys were allowed inside the judge’s chambers.
Counsel for the parties were able to observe the testimony in the courtroom on a
closed circuit monitor. Previous to the hearing, the Court allowed the parties to
submit written questions. While Mr. Fields’ counsel submitted questions. Ms.
Fields’ counsel did not. While the judge gave counsel an opportunity to pose any
questions for the child during the interview, they declined.
On December 14, 2007, the trial court entered an Order modifying
custody and granting primary residential custody to Mr. Fields. Ms. Fields now
appeals the Order asserting that the trial judge erred in not allowing her to observe
the testimony along with counsel in the courtroom during the judge’s in camera
interview with Mikella.
“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.” Kentucky Rules of Civil Procedure (CR) 52.01. “An
appellate court reviews the application of the law to the facts and the appropriate
legal standard de novo.” Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App.
Kentucky Revised Statutes (KRS) 403.290(1) directly deals with the
issue before us and provides that:
The court may interview the child in chambers to
ascertain the child’s wishes as to his custodian and as to
visitation. The court MAY permit counsel to be present
at the interview. The court SHALL cause a record of the
interview to be made and to be part of the record in the
case. (Emphasis added).
Pursuant to this statute, it is within the trial judge’s discretion as to
whether counsel or the parents are present at the interview of the child. See Couch
v. Couch, 146 S.W.3d 923, 925 (Ky. 2004).
Since the trial judge relied upon the interview in making her decision
to modify the original custody agreement, a record of the interview must be
available to the parties and their counsel. In this case, it clearly was and Ms. Fields
has not set forth any arguments which persuade us to disturb the trial judge’s
findings and conclusions. Thus, we will affirm the decision of the trial court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Olu A. Stevens
Catherine J. Kamenish