D. (K.) VS. J. (E.)
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RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000616-ME
K.D.
v.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE SHEILA N. FARRIS, JUDGE
ACTION NO. 04-CI-00125
E.J.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, LAMBERT, AND WINE, JUDGES.
CLAYTON, JUDGE: This is an appeal from a decision of the Henderson Circuit
Court modifying an agreed custody order. For the reasons that follow, we will
affirm.
BACKGROUND INFORMATION
Appellant, K.D. (hereinafter mother), and appellee, E.J. (hereinafter
father), are the parents of A.J. A.J. was born on June 26, 2001, and resided with
both parties from July of that year until June of 2003. On July 5, 2005, the
Henderson Circuit Court entered an order awarding joint custody of A.J. to mother
and father. A.J. stayed with mother during the week and with father during the
weekend. Father travels to Henderson County for his weekends with A.J. and
stays with his parents during his visits due to the distance from Paducah.
Mother has a history of alcohol abuse and, during the time A.J. has
resided with her, resided with several different people in several different areas.
While mother had entered into a plan with the Cabinet for Health and Family
Services regarding substance abuse education and treatment, there was no evidence
presented that she had actually attended any classes or programs.
Father has a history of illegal drug use. On February 6, 2002, he was
arrested on federal drug charges and was incarcerated from June 19, 2003, until
April 16, 2004, and resided at a halfway house in Paducah, Kentucky, until
October 15, 2004. He has been in recovery since February of 2002. He currently
has employment with a law firm in Paducah.
On October 5, 2007, father filed a motion with the court for sole
custody and on March 6, 2008, the trial court found that it would be in the best
interests of A.J. to change her primary residence from mother to father. Mother
now appeals that decision arguing that the trial judge abused her discretion in
making that determination.
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 to the opportunity of the trial court to judge the credibility of the
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.; Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308
(Ky. 1972). “An abuse of discretion occurs when a ‘trial judge’s decision [is]
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’”
Farmland Mutual Insurance Co. v. Johnson, 36 S.W.3d 368, 378 (Ky. 2000),
quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000).
LEGAL ANALYSIS
If a parent brings a motion to modify custody within two (2) years of
the date of the original custody order, the court must find that the child is in
danger. The Henderson Circuit Court originally entered an agreed custody order in
July of 2005. Thus, more than two (2) years have elapsed and, pursuant to
Kentucky Revised Statutes (KRS) 403.340(3), a court may modify an existing
custody decree if “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
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child.” In making a determination as to the best interests of the child, the court
should consider:
(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
(f) Whether the custodian has placed the child with a de
facto custodian.
KRS 403.340(3).
KRS 403.270(2) lists the following factors which should be weighed in
determining the best interests of the child:
(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;
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(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720;
(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 403.720
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.
In this case, the trial judge made specific findings regarding the best
interests of A.J. She cited the history of alcohol abuse mother had as well as the
fact that no evidence had been presented which indicated an affirmative act on
mother’s part to seek treatment for her addiction. The trial judge also recited
evidence of mother’s many residences and the different individuals including three
(3) adult males who had come in and out of A.J.’s life as a result of her living with
mother, since entry of the decree in July of 2005. Further, the court noted that as
many as eight (8) people were living in the three- (3) bedroom mobile home which
is her current residence.
As to father, the trial judge set forth his history of illegal substance
abuse. The evidence presented, however, indicated that since his release from
prison he has been free of such substances. Father also has maintained gainful
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employment, now owns a home in Paducah where he lives alone, and has
consistently visited A.J. even though it meant travelling a distance to do so.
Finally, the trial judge evaluated the evidence regarding A.J.’s ability
to adapt to new surroundings and found, based upon the testimony of those who
knew the child, that she would easily adapt to a new school if her primary
residence was moved to father.
We believe there was more than sufficient evidence set forth by the
trial judge in making her decision that A.J.’s best interests would best be served if
her primary residence were changed to father’s. Consequently, there was no abuse
of discretion and we will affirm the decision of the trial judge modifying custody.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth S. Kasacavage
Henderson, Kentucky
Susie Moore
Henderson, Kentucky
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