FLOYD (JAMES C.) VS. MOBLEY (CORA JANE), ET AL.Annotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES C. FLOYD
APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 02-CI-01404
CORA JANE MOBLEY AND
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BEFORE: ACREE, CLAYTON AND KELLER, JUDGES.
ACREE, JUDGE: James Floyd, pro se, appeals from an order of the Boone
Family Court, terminating visitation with his son. We affirm.
Cora Mobley, the child’s mother, first filed for sole custody in
October 2002. The family court issued an order granting Mobley temporary sole
custody and Floyd reasonable visitation to be agreed upon by the parties.
In April 2004, citing concern for her son’s safety while in Floyd’s
care, Mobley moved the family court to require Floyd’s visitations be supervised.
An agreed order was entered into by the parties affording Floyd supervised
visitation. Floyd was also required to obtain psychological testing. After missing
several appointments and arriving late to others, Floyd completed his testing and a
report was filed with the family court on November 8, 2004.
The report indicated Floyd suffered from several personality and
learning disorders and recommended that he obtain psychological and psychiatric
treatment to address his diagnosis. The report also indicated that Floyd’s substance
abuse be addressed since the evaluator considered Floyd inconsistent in his
Floyd was arrested in January 2005 for three counts of assault. He
was released on bond awaiting trial.
On March 22, 2005, the parties entered into an agreed order that
required Floyd to seek psychological and psychiatric treatment as recommended in
his psychological testing report. Floyd did not obtain the required treatment. In
August 2005, Floyd was arrested on drug charges in Hamilton County, Ohio. His
bond was revoked and Floyd was incarcerated awaiting trial. Floyd pled guilty to
assault in the second degree and was sentenced to ten years.
Floyd has been incarcerated within the Kentucky Penal System since
November 2005. In April 2007, Floyd, pro se, petitioned the family court for
visitation with his son. Based upon Floyd’s failure to follow the recommendations
of the prior court order to obtain psychological and psychiatric treatment and
finding visitation would be harmful to the child, his motion was denied. This
“[T]his 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.” Drury v. Drury, 32
S.W.3d 521, 525 (Ky.App. 2000); see also Bales v. Bales, 418 S.W.2d 763, 764
(Ky. 1967). The family court's findings of fact are not erroneous if supported by
“evidence of substance and relevant consequence sufficient to induce conviction in
the minds of reasonable people.” Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.
2002). In reviewing the family court's decision, we must give due regard to that
court's judgment as to the credibility of the witnesses. Id. at 782.
A noncustodial parent is entitled to reasonable visitation and a court
shall not restrict visitation rights unless it finds that visitation would seriously
endanger the child's physical, mental, moral, or emotional health. See Kentucky
Revised Statute (KRS) 403.320(1),(3). Although the trial court did not use those
exact words in its order, we believe it clearly made such a finding.
A hearing was conducted on January 7, 2008, in which Floyd had the
opportunity to testify by telephone from prison. Mobley testified to Floyd’s
violent behavior including his arrests for assault and an occurrence where Floyd
threatened her with a gun in the presence of their son. Mobley also suspected
Floyd made inappropriate statements about her during his visits with his son and
did not consider the emotional impact these statements had on the boy’s health.
Floyd testified to and presented the family court with certificates
detailing his completion of several prison offered classes including anger
management. Floyd admitted that he had not pursued or obtained the
psychological or psychiatric counseling as previously ordered by the family court.
We believe sufficient evidence was presented to support the family
court’s conclusion and to comply with the requirements of KRS 403.230(3). Floyd
has not complied with the March 2005 order and the family court heard ample
testimony to support its conclusion that allowing visitation with Floyd at this time
would seriously endanger his child’s mental and emotional health.
In stating that visitation was not appropriate “at this time”, the family
court did not close the door completely on visitation. It is clear that Floyd wishes
to maintain a close and involved relationship with his son and it appears that once
he seeks the counseling he needs, he can again petition the family court for
For the foregoing reasons, the judgment of the Boone Family Court is
BRIEFS FOR APPELLANT:
James C. Floyd, Pro se
BRIEF FOR APPELLEE, CORA
Irene L. Rachlinski
NO BRIEF FOR