TOWNSEND (DONALD) VS. TOWNSEND (BARBARA S)
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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NOT TO BE PUBLISHED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-001010-MR
DONALD TOWNSEND
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE KRISTI HOGG GOSSETT, JUDGE
ACTION NO. 06-CI-00461
BARBARA S. TOWNSEND
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND STUMBO, JUDGES.
MOORE, JUDGE: Donald Townsend appeals from the Greenup Circuit Court’s
order denying his motion to alter, amend, or vacate the court’s prior order
modifying the parties’ custody schedule, as well as from the court’s order denying
his motion for an award of temporary custody. After a careful review of the
record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2004, Donald and Barbara S. Townsend were divorced in the
Lawrence County, Ohio, Court of Common Pleas, pursuant to a Dissolution Entry.
This Dissolution Entry incorporated by reference the parties’ Separation
Agreement, which included a plan for shared parenting of their twin sons, Caden
Tate Townsend and Colby Braden Townsend, who were born in 1997. The plan
for shared parenting provided, in part, that the children would reside with Barbara
on Tuesday, Wednesday, and Saturday; they would reside with Donald on Sunday,
Monday, and Thursday; and the parties would alternate Fridays.
Both parties subsequently moved in the Ohio court to terminate the
shared custody portions of the Ohio Dissolution Entry and obtain sole custody of
the children. The Ohio court held that it no longer had jurisdiction over the parties,
as they both had moved to Kentucky.1 Then, in August 2006, Donald moved in
Kentucky’s Greenup Circuit Court for sole custody of the children. The following
month, Barbara also moved to modify the custodial arrangement by asking the
court to award her primary physical possession and control of the children under a
joint custody arrangement.
The children were interviewed separately by the Circuit Judge in
chambers. Caden abruptly began his interview by stating that he wanted to live
with his father. He asked if he would get to go home with his father that day, and
he was informed that the decision may not be made that day. Caden asked the
1
Barbara lived in Carter County, Kentucky, and Donald lived in Greenup County, Kentucky.
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court not to tell his mother that he wanted to live with his father and he said that he
did not want to go home with his mother that day because she would ask him
questions and “bug” him. Caden informed the court that he received mostly “A’s”
and “B’s” in school, and he sometimes received a “C.” He was in the fourth grade
at that time.
Caden testified that the reason he wanted to live with his father was
because he had his own room there, he had more friends there, and at his mother’s
house, he had to share a room with Braden. Caden said his step-father was nice.
Caden attested that he liked his step-mother a great deal, and that his
mother even likes his step-mother, because she is nice to Caden and Braden. He
testified that his mother often tells him that she hates his father and she calls him
names. Caden also attested that he had received multiple sunburns while in his
mother’s custody.
During his testimony, Caden referred once to something that he said
his father told him the court would ask him about, concerning an injury Caden
sustained while with his mother. Caden attested that he had heard two different
versions of the story about how he was kicked in the face by his mother, resulting
in a cut that required several stitches. The incident happened when Caden was in
the second grade (approximately two years before testifying about it), and Caden
could not remember what happened. However, he had heard one story that made it
sound like his mother intentionally kicked him, and another story that made it
sound like she kicked him by accident.
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Caden attested that he had been sunburned eleven times while in his
mother’s custody, and that his father had taken photographs of all of those
sunburns. He testified that he had been lost several times while in Wal-Mart with
his mother.
Braden next testified in the Circuit Judge’s chambers. He volunteered
to the court, without being asked, that he had previously lied to a state trooper by
saying that he had not driven his mother’s car, when in fact he had driven her car
while sitting on her lap. Braden told the court that he wanted to live with his father
because he had more fun at his father’s house. Braden also volunteered to the
court that they ate healthier foods and exercised at his father’s house. He informed
the court that he and Caden attended Carter Elementary School.
The principal of McKell Elementary School, where Donald wanted
the children to attend school so that they could be in separate classes, testified that
his school has four fourth grade classes. He attested that the decision of whether to
put twins in the same class or separate classes depends on the situation. Some
twins do better when they are in the same class, and others do better when they are
separated. The principal did not specifically testify as to the impact on the
Townsend twins of being in the same classroom.
Barbara testified at the hearing. She attested that her new husband
and his thirteen-year-old daughter lived with her. Barbara testified that the
children had seen “R-rated” movies containing nudity and sexual content, and
played violent video games while in Donald’s custody. One of the children
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informed Barbara that he had seen pictures of nude women on Donald’s computer.
Barbara attested that the boys were forced to do all of the cleaning at Donald’s
house.
On cross-examination, Barbara admitted having told the children that
it was Donald’s fault they had divorced because he had an affair which led to the
divorce. She also admitted having spoken negatively about Donald in the
children’s presence. Barbara acknowledged that the children had been sunburned
badly twice while they were in her custody, and that she sought medical treatment
at least once for their sunburns.
At the close of the first day of the custody hearing, the circuit court
scolded both parties and told them to begin acting like adults and stop putting the
children in the middle of their bitter custody battle. The court noted that Caden,
when he was in chambers speaking privately with the court, was nervous because
he said that his mom would be angry at him for saying that he wanted to live with
his dad, and that when he went home, she would punish him for saying so by
taking away his toys. The court also stated that Caden informed the court that his
father had told him during a break in the court proceedings that his mother was
crazy and that she was in the courtroom talking about a “truth helmet.”2
On the second day of the custody hearing, Donald testified that he is
concerned about the children being in the same classroom because Braden tends to
“live in Caden’s shadow.” Donald also stated that Braden copies off of Caden
2
The children were not in the courtroom during the custody hearing.
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when they are in the same class. Donald testified that he is concerned about
Caden’s weight because Caden gained twenty-to-twenty-five pounds in the
previous four or five months.
Donald attested that he and his wife, Elizabeth, began focusing on
healthy eating at their house, and that the boys were beginning to eat healthier
while at their house. Additionally, the boys would sometimes ride a stationary
bicycle that Donald had in his family room. The boys had chores at Donald’s
house, which included one boy using a “Swiffer” on the hardwood floors, and the
other boy vacuuming the carpet. If there were special projects that needed to be
done around the house, like taking winter clothes out of boxes and putting summer
clothes in boxes, the boys were offered a silver dollar for their help. He attested
that the boys did not do all of the housework at his house.3
Donald testified that another boy, who is Elizabeth’s nephew, lives
with them. The boy was sixteen years old at the time of the hearing, and Donald
testified that the boy had a “big brother” relationship with Caden and Braden.
Donald attested that Elizabeth communicates with the children and that the
children enjoy spending time with her.
Donald testified that Braden had been sunburned eleven times, and
Caden had been sunburned ten times, all of which occurred in the previous three
years and while the children were in Barbara’s custody. Donald admitted to
having spanked the boys in the past, and to having put a clean bar of soap in
3
Elizabeth also testified that the boys did not do all of the housework at the house she shared
with Donald.
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Braden’s mouth for ten to fifteen minutes once after Braden got in trouble at
school and the teacher asked Donald to “do something about” him. Donald
asserted that before putting the bar of soap in Braden’s mouth, he called the
doctor’s office to find out what type of soap to use, and that after having the soap
in his mouth, Braden did not have any burns or blisters in his mouth as a result of
the soap.
The circuit court found that Barbara is a librarian who earns
approximately $60,000 per year, and that she lives in a triple wide mobile home
with her husband and her step-daughter, who is thirteen years old. The court noted
that Caden and Braden like their step-father. The court found that when the boys
are in Barbara’s custody, they ride the bus to and from school, and spend
approximately thirty minutes on the bus each way.
The court noted that Donald owns a video rental store, he lives with
his wife and his wife’s sixteen-year-old nephew, and they live in a home that
borders the 500-acre farm owned by Donald’s in-laws. When Donald has custody
of Braden and Caden, he drives them to and from school. Both boys have a good
relationship with Donald’s wife, Elizabeth, and Barbara acknowledged this good
relationship.
The court noted that it interviewed both Caden and Braden, and that
both children
expressed a preference for living with their father. Caden
was visibly upset upon entering the undersigned’s
chambers for private interview (recorded) and
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immediately asked very nervously i[f] this was when he
was supposed to tell the undersigned that he wanted to
live with his dad. The boys were interviewed separately
and both gave similar reasons for wanting to live with
their father including the fact that their father’s
household was more fun and that they were very close to
their stepmother Elizabeth. Caden placed great emphasis
on the fact that his mother would ask him a lot of
questions and would want to know everything that was
said in chambers. Caden asked the undersigned if he
could go home with his father on this date and when
advised that he would not be able to do so as the ruling
would take some time, was very upset. The flow of
information from Caden seemed unnatural in that he said
words to the effect of, “I have had 11 sunburns and all of
them have been with my mom and my dad has pictures of
all of them. My mom has lost me three or four times in
Wal-Mart. How many people [lose] their kids in WalMart? My dad asks other people with kids if they have
ever lost their kids in Wal-Mart.” The Court is of the
opinion that there has been a great deal of coaching and
bad mouthing by Donald against Barbara in the presence
of the children. The Court also believes[,] however[,]
that Barbara has unnecessarily involved the children in
the pending litigation.
The court stated that Donald wanted the children to attend McKell
Elementary School in Greenup County so that the children could be enrolled in
separate classes, “as he believes that Caden dominates Braden.” The court also
noted that Barbara “requested that the children remain at Carter Elementary,”
where they were in the same class. The court heard testimony from various
educators about whether it is typically beneficial for twins to be in the same or
separate classes, but not one of them “presented any evidence . . . about what
would be more appropriate for Braden and Caden.”
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Two different school teachers from the Ironton school
system [where the boys attended second grade] testified
at the hearing and advised the Court that they could tell
(with reference to the rotational time-sharing plan) what
home the boys had been in the day prior. Both teachers
testified that when the boys were with their mother that
their homework was neater, was completed, was
organized, and further that the boys were prepared, rested
and ready for school. The same was not true when the
boys had been in the physical possession of their father.
Furthermore both teachers advised that Barbara
participated in all parent/teacher conferences and
maintained frequent communication with the educators
by email.
The court continued, finding as follows:
Barbara has alleged that Donald has been physically
abusive of the children,[4] and Donald has alleged that
Barbara has been neglectful of the children and that said
neglect has resulted in multiple sunburns and the children
getting lost at Wal-Mart. The results in the ongoing
claims has resulted in the involvement of social services
in more than one county, and law enforcement officials.
The children have been interviewed by these persons on
multiple occasions. None of the allegations have
persuaded the Court in any way regarding the question at
hand, that being custody and time-sharing of the children,
and finds that there is little if any merit to them and that
they were made for the purpose of either harassment
and/or positioning in the legal proceeding.
As for Caden’s weight issue, the court stated that the parties “should
meet with Caden’s pediatrician and that both should follow recommendations from
the pediatrician regarding this issue.” The court also believed that the issues
concerning “the maturity level of the entertainment to which the children have
4
Barbara submitted evidence, in the form of nude photographs of one of the children after
Donald had allegedly whipped the child with a belt. The photographs showed red marks on the
boy’s arm and buttocks.
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been exposed” and the allegation that “Donald had exposed the children to
pornography on his computer” should be addressed.
The court ordered the parties to communicate with each other
concerning “healthcare matters, educational issues and extracurricular events, to
enable the other parent to be involved and have input into the activities,” and if
they were “unable to communicate in person, they [should] do so in writing,
utilizing a notebook to exchange information.” The court directed that “[t]he
parties should continue to have shared custody of the minor children with no
designation of primary residential parent, however the time-sharing arrangement
should be modified as both parents acknowledged that it is unworkable and hard on
the children.” Thus, the court concluded that
Barbara should have physical possession of the children
every Sunday beginning at 6:00 p.m. through the
following Wednesday after school. Donald should have
physical possession of the children every Wednesday
from the time school ends through the following Friday
at 6:00 p.m. The parties should alternate weekend time
with their children with weekends to begin on Fridays at
6:00 p.m. and conclude on Sundays at 6:00 p.m. . . . A
split and/or alternating holiday schedule should be
negotiated between counsel with input from the parents
and each parent should be granted two seven day
uninterrupted vacation weeks annually.
The court stated that “the parents should utilize a parenting
coordinator on an as needed basis and prior to further court involvement,” to
address, inter alia, issues concerning parenting schedules and contact, as well as
changing education and/or extracurricular activities for the children. The court
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ordered the parents, when both present “at the boys’ school and for extracurricular
activities, . . . [to] sit separately and ensure that the children have the opportunity to
interact with the other parent without interference for up to 10 minutes.” It also
ordered the parents to utilize the parenting coordinator to determine where the
children should attend school the following year, but that the children should
complete the present school year at Carter Elementary. Finally, the court ordered
that the children should “not be exposed to ‘R’ or ‘Mature’ rated video games or
movies.”
Donald moved to alter, amend or vacate the court’s order and also
moved for an award of temporary custody, arguing that the court should grant him
custody of the children or, in the alternative, that the court should not have
modified the total amount of custody time per week, but only the days of the week
that the parties had possession of the children. Donald contended that the court
had failed to consider, as required by KRS 403.270, the best interests of the
children, and he noted that Caden had gained twenty-five pounds recently, yet
Barbara showed little interest or concern about it. Donald asserted that the court
incorrectly found that the children had good grades, when “[t]he majority of the
grades the children [received were] failing marks.” He argued that Barbara
continued to “bad-mouth” him in front of the children, even after the court ordered
the parents to cease doing so. Donald again alleged that Barbara had been
neglectful, as evidenced by the sunburns sustained by the children. He argued that
the children wanted to live with him.
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Regarding Donald’s motion for an award of temporary custody, he
supported the motion with his own affidavit that stated that in April 2008, Barbara
“was transporting the children . . . wherein she was involved in an automobile
accident. Pursuant to the . . . accident report, neither child was properly restrained
in the vehicle. Based upon their lack of wearing seat restraints, both children were
injured and will require day to day care.”5 Donald also attested that, as a result of
injuries she sustained in the accident, Barbara required surgery.
The circuit court denied Donald’s motion to alter, amend, or vacate
the court’s prior order, as well as his motion for temporary custody. The court did,
however, order Barbara to “properly restrain the children at all time[s] that they are
in a motor vehicle.”
Donald now appeals, contending that: (1) the circuit court erred when
it failed to consider the factors set forth in KRS 403.340(3) in considering the
motion to modify custody; (2) the circuit court failed to consider the danger posed
to the children in Barbara’s home; and (3) the circuit court erred in failing to keep
the exhibits until the circuit court reviewed the matter for an order.
II. STANDARD OF REVIEW
In child custody cases, this Court’s scope of review is very limited.
We will not overturn a trial court’s factual findings unless they are clearly
erroneous. See Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Factual
5
Donald failed to explain what such “day to day care” entailed.
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findings are clearly erroneous if they are “manifestly against the weight of [the]
evidence.” Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967) (internal quotation
marks omitted). A “reviewing court should not substitute findings of fact for those
of the trial court where they were not clearly erroneous.” Reichle, 719 S.W.2d at
444. We will not disturb a trial court’s custody determination unless there was an
abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). “Abuse
of discretion in relation to the exercise of judicial power implies arbitrary action or
capricious disposition under the circumstances, at least an unreasonable and unfair
decision.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994) (internal
quotation marks omitted). With this standard in mind, Donald has a very high
benchmark to meet to convince this Court that we should find error with the circuit
court’s decision.
The parties’ conduct prior to and during the hearing, and in their
briefs before this Court, illustrate an openly contentious relationship and that they
have sadly put their children in the middle of their dispute. Being constrained by
abuse of discretion and clearly erroneous standards, we rely on the trial court’s
credibility findings, which we believe to be highly relevant in this matter. As this
opinion develops, the province of the trial court regarding credibility becomes
obvious.
III. ANALYSIS
A. CLAIM THAT CIRCUIT COURT FAILED TO CONSIDER KRS
403.340(3) FACTORS
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Donald first contends that the circuit court erred in failing to consider
the factors set forth in KRS 403.340(3) while considering the cross-motions to
modify custody. Pursuant to KRS 403.340(3),
If a court of this state has jurisdiction pursuant to the
Uniform Child Custody Jurisdiction Act, 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. When determining if a change has occurred
and whether a modification of custody is in the best
interests of the child, the court shall consider the
following:
(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.
Donald specifically argues that the circuit court failed to consider the
factors set forth in KRS 403.270(2) concerning the best interests of the children.
That statute states that:
The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian. The
court shall consider all relevant factors including:
(a) The wishes of the child’s parent or parents, and any
de facto custodian, as to his custody;
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(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; [and]
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720 . . . .
KRS 403.270(2).
Although the children expressed their desire to live with their father,
the circuit court found that the children had been coached by their father regarding
the answers that they gave to the court’s questions. This being a credibility issue,
we are constrained by the trial court’s analysis of it, regardless of whether we
would have come to a different conclusion. We pause to note the wretchedness of
the possibility that the heart’s desire of Caden and Braden truly was to live with
their father, in light of the appearance that they had been coached in what to say to
the circuit court. Indeed, these situations put the children and the courts in a most
difficult position. The aspiration when attempting to reconcile what the children’s
desires are is simply: what do the children want, without influence or pressure
being placed on them?
Consequently, with the circuit court’s having found that the children
were coached and this Court’s hands-off standard on credibility issues, the
children’s ultimate wishes sadly cannot otherwise be determined. Thus, if they
really wanted to live with their father, their mother may have gained more time
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with them by default and not in accord with what Caden and Braden wanted. In
other words, had the children not been coached, the circuit court may have made a
different decision. On the other hand, if the children wanted to keep the present
arrangement, i.e., spending more time with their mother, the father’s manipulation
of the children placed the children in the middle. Certainly, the courts look
forward to a time (illusive as it may nonetheless be) when parents will work
together, jointly placing the best interests of their children above all.
Despite the inability of the parents to work together, the children are
fortunate to have good relationships with their parents, step-parents, and others
living in both their mother and father’s homes. The court heard testimony from
various educators and found that none of the testimony proved that the children
would have more success in school if the children were in separate classes. The
court noted that Caden had gained weight recently, so the court directed the parents
to talk with Caden’s pediatrician about this and abide by the pediatrician’s
recommendations.
Based on the foregoing, we cannot say that Donald has shown the
circuit court’s factual findings were clearly erroneous. Furthermore, it appears that
the circuit court considered the provisions of KRS 403.270(2) and KRS 403.340(3)
in arriving at its conclusions. Therefore, Donald has failed to show that the circuit
court abused its discretion by modifying the custody order as it did.
B. CLAIM THAT THE CIRCUIT COURT FAILED TO CONSIDER THE
DANGER TO THE CHILDREN
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Donald next contends that the circuit court failed to consider the
danger posed to the children in Barbara’s home. Specifically, he alleges: that the
court should have focused more on the sunburns the children have received while
in Barbara’s custody; that after the circuit court entered its decision modifying
custody, the children were in a vehicle accident while not wearing their seat belts
at a time when Barbara had custody of them; that the children lied to a police
officer about Barbara allowing them to drive her car; and that Barbara was not
attempting to help remedy Caden’s weight problem.
The circuit court did note the multiple sunburns the children had
received, and advised the parties to meet with Caden’s pediatrician concerning his
weight gain and to follow the pediatrician’s recommendations about it. The court
also noted that social services and law enforcement officials had interviewed the
children previously on multiple occasions, and the court found that none of the
allegations were persuasive to the court, as they had “little if any merit to them
[because] they were made for the purpose of either harassment and/or positioning
in the legal proceeding.” As for Donald’s accusation concerning the children being
in a vehicle accident without wearing their seatbelts, the circuit court denied his
motion for temporary custody based on this allegation and ordered Barbara to
“properly restrain the children at all time[s] that they are a passenger in a motor
vehicle.”
Therefore, upon review of the circuit court’s orders, it is apparent that
the circuit court did consider the alleged danger to the children, but the court did
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not find Donald’s allegations sufficient or credible enough to justify modifying
custody in his favor. As previously mentioned, the circuit court’s factual findings
were not clearly erroneous, and the court did not abuse its discretion when it
modified the custody award.
C. CLAIM THAT THE CIRCUIT COURT ERRED IN FAILING TO KEEP
EXHIBITS
Finally, Donald contends that the circuit court erred in failing to retain
certain exhibits until the circuit court entered its order. Specifically, Donald argues
that at the hearing,
the trial court did not have the exhibits for review or
consideration during the testimony. The exhibits had
already been sent to the Greenup Circuit Court [Clerk].
In particular, during questioning there was a request for
the pictures so that Donald could testify as to a picture
from an alleged spanking, in response to which [the
court] stated that the records had already been forwarded
to the Greenup Circuit Court [Clerk]. . . . Therefore, one
has to question as to how the trial court can adequately
review the records if the records were not available for
review.
Donald does not assert that the circuit court never saw the exhibits. Rather, he
alleges only that the court should have retained the exhibits until the court entered
its order, in the event that the court wished to review the exhibits again before
entering that order. We assume that, if the court wanted to review the exhibits
again before entering its order, the court could have requested the exhibits to be
sent to it from the court clerk. Donald does not allege otherwise.
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Regarding the sunburn exhibits, several people testified about the
children’s sunburns, and Donald does not contend that the court never saw the
photographs taken of the sunburns. Therefore, he is unable to show that the circuit
court erred by sending the photos to the clerk prior to entering the order.
As for the photographs that allegedly showed red marks on one of the
boy’s bodies after Donald spanked him, the circuit court noted that Barbara
contended that Donald was “physically abusive of the children,” and that social
services and law enforcement officials had interviewed the children about these
incidents. Regardless, the court held that
[n]one of the allegations [had] persuaded the Court in any
way regarding the question at hand, that being custody
and time-sharing of the children, and [the court found]
that there [was] little if any merit to them and that they
were made for the purpose of either harassment and/or
positioning in the legal proceeding.
Therefore, Donald is unable to show that the court erred by sending the exhibits
back to the court clerk prior to entering the court’s order in this matter.
D. CONCLUSION
Accordingly, the order of the Greenup Circuit Court is affirmed. We
pause to advise the parties to put their differences aside and begin to work together
jointly parenting their children, as this would be in Caden and Braden’s best
interests. A divided front from parents frequently proves disastrous to their
children’s futures.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rhonda M. Copley
Ashland, Kentucky
Tracy D. Frye
Russell, Kentucky
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