GERACI (CARMEN) VS. GERACI (JULIA BETH)Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 05-CI-03491
JULIA BETH GERACI
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Carmen Geraci appeals the Fayette Circuit Court’s order
denying his motion to appoint a guardian ad litem and to have an updated custodial
evaluation performed by a doctor. After careful review, we affirm.
On October 19, 2006, the Fayette Circuit Court entered a combined
supplemental findings of fact, conclusions of law and decree providing for
timesharing, child support, property and debt distribution, and a decree dissolving
the marriage of Julia Geraci (hereinafter “Julia”) and Carmen Geraci (hereinafter
“Carmen”). The decree provided for timesharing of the parties’ minor child but
did not provide for equal time sharing, and the issue was to be addressed again in
May 2007. This was to allow the parties to demonstrate whether they could handle
equal time sharing.
Furthermore, the decree provided that Carmen was to pay child
support to Julia and that Julia was to take a “cooperative parenting class or an
alternative class approved by the Court.” Julia completed an online cooperative
parenting class on August 2, 2007. Carmen claims that a psychiatrist involved in
the divorce proceedings recommended that the child not be exposed to Julia’s
mother on a regular basis. However, the report and recommendations of the
psychiatrist did not directly state that Julia’s mother, Ms. Clark, should not be
allowed to see the child but instead found that Ms. Clark’s obvious disdain for
Carmen might increase the possibility of alienation between the child and Carmen.
On October 11, 2007, Carmen Geraci filed a memorandum in support
of increase in his share of timesharing, arguing that Julia was intentionally not
cooperating with him in order to prevent him from getting increased time with their
daughter. Carmen argued that Julia had failed to participate in the court required
parenting class; that Julia had continued to expose their daughter to her mother,
Ms. Clark; and that Julia had been disciplined by the Fayette County School
System and resigned due to inappropriate behavior toward her students. On
December 3, 2007, Carmen filed a motion for appointment of a guardian ad litem
and a motion to have Dr. Feinberg perform an updated evaluation. In these
motions, he argued that because the parties were having trouble communicating
and participating, a guardian ad litem was necessary, as was an updated evaluation
by Dr. Feinberg.
The motion for a guardian ad litem and updated evaluation came
before the court on December 7, 2007. The court denied the motion and stated that
absent a proper showing it would not order equal timesharing. Finally, it directed
that per the October 19, 2006, divorce decree, a parenting coordinator would
address issues of timesharing. Carmen now appeals the December 2007 order.
Carmen argues that the Fayette Circuit Court abused its discretion in
denying his motion for a guardian ad litem and for an updated custodial evaluation
given the evidence of Julia’s “egregious behavior.” He argues that there are
serious questions about whether or not Julia’s behavior and lack of cooperation
will endanger the welfare of their minor child. Specifically, Carmen argues that
Julia verbally abused the children she taught within the Fayette County School
system. He further argues that she did not follow the court’s directive to take a
parenting class and that she failed to undergo the court’s recommended counseling
In reviewing a child custody decision, the test is not whether we
would have decided differently, but whether the findings of fact of the trial judge
were clearly erroneous or he abused his discretion. Hamilton v. Hamilton, 458
S.W.2d 451 (Ky. 1970). Here, the court made no findings of fact, having made all
necessary findings of fact in its Decree, from which neither party appealed.
Therefore, its rulings on Carmen’s motions may be disturbed only if Carmen
shows that the court abused its discretion.
In its decree, the trial court provided that “neither party will file any
motions regarding their child until the parenting coordinator has addressed the
issue.” It does not appear from the record that Carmen addressed any of the issues
on appeal with the parenting coordinator. Furthermore, while Carmen’s motion
for a guardian ad litem and for an updated custodial evaluation were not styled as
motions for modification of custody or visitation, the court properly treated them
as such given Carmen’s immediately preceding memorandum of law in support of
equal time sharing, where he argued the same issues. The Court found in its order
that absent a proper showing, it would not order equal time-sharing.
KRS 403.340(2) provides that:
[n]o motion to modify a custody decree shall be made
earlier than two (2) years after its date, unless the court
permits it to be made on the basis of affidavits that there
is reason to believe that: (a) The child’s present
environment may endanger seriously his physical,
mental, moral or emotional health; or (b) The custodian
appointed under the prior decree has placed the child
with a de facto custodian.
Given that the original child custody decree was entered on October 19, 2006, and
Carmen’s motion to modify timesharing was filed on June 11, 2007, he was clearly
within the two year time period described in the statute. His motion, however, was
not accompanied by the requisite affidavits. Even assuming his memorandum can
be considered an affidavit, the court did not find reason to believe that the child
was in serious danger. Essentially, when Carmen was not granted equal
timesharing, he filed motions to appoint a guardian ad litem and to have an updated
custodial evaluation performed in an attempt to have another bite at the apple.
None of the proffered reasons in his motions or memorandum persuaded the court
that the child was in any danger based on Julia’s behavior. Accordingly, equal
timesharing was properly denied and the court properly declined to modify
custody. We find no abuse of discretion.
We additionally find Julia’s argument that this Court should dismiss
Carmen’s appeal because the order appealed from is not a final and appealable
order is without merit. The January 4, 2008, order adjudicated all of the rights of
the parties at the December 7, 2007, proceeding and as such, was a final and
appealable order as defined by CR 54.01.
For the foregoing reasons, the order entered by the Fayette Circuit
Court is hereby affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rachel D. Yavelak
Charles W. Arnold