HENSLEY (SHEENA) VS. HENSLEY (VERNON)
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RENDERED: JANUARY 7, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000174-ME
SHEENA HENSLEY
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WALTER F. MAGUIRE, JUDGE
ACTION NO. 04-CI-00344
VERNON HENSLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: VANMETER AND WINE, JUDGES; SHAKE,1 SENIOR JUDGE.
VANMETER, JUDGE: Sheena Hensley appeals from the judgment of the Pulaski
Circuit Court granting Vernon Hensley’s motion to modify the primary residential
parent designation of the parties’ minor child. For the following reasons, we
affirm.
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Sheena and Vernon Hensley lived together as husband and wife from June
22, 1995 until their separation in November, 2000. The parties had a child
together, born August 22, 1997. Since the time of their separation, the minor child
has resided with Sheena. The parties were divorced on July 9, 2004 by decree of
dissolution, in which the court awarded the parties’ joint custody of the minor child
and designated Sheena as the primary residential parent.
In February, 2009, Vernon moved to modify the primary residential parent
designation, requesting the court to designate him the primary residential parent of
the parties’ minor child. The court ordered the parties to participate in mediation
and requested the Cabinet for Families and Children to conduct an investigation of
the parties’ homes and living situations. The court also appointed a guardian ad
litem (GAL) for the minor child. The parties were unable to complete mediation,
and the matter was set for a final hearing.
During the final hearing, the court heard testimony from Vernon, Sheena,
and Vernon’s wife, Lauren Hensley, as well as a report from the GAL. The
hearing revealed that Sheena and the minor child were residing in the rental home
of Sheena’s boyfriend Jack Adams, whose name is the only name on the lease.
The hearing also confirmed that Sheena and the minor child have lived in nine
residences since the parties’ separation in 2000. In addition, Sheena does not
possess a valid driver’s license and relies upon Mr. Adams and her mother for
transportation. In 2008, the minor child suffered a lice infestation, which lasted
several months.
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The GAL reported to the court that the minor child expressed concern about
the numerous changes in residence while living with her mother. The child also
stated that her mother and she had left Mr. Adams’ home on one occasion after an
argument between her mother and Mr. Adams. Due to these concerns, the child
told the GAL that she had asked her father to seek the modification of her primary
residence. The GAL opined that Vernon’s residence would provide more stability
in the child’s life and the minor child would adequately adjust to living with her
father.
At the conclusion of the hearing, the court designated Vernon as the primary
residential parent, and granted Sheena standard visitation in the manner previously
exercised by Vernon according to the decree of dissolution. This appeal followed.
A trial court’s findings of fact are reviewed under a clearly erroneous
standard. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App. 2005) (citations
omitted). Such findings are not clearly erroneous if supported by substantial
evidence. Id. (citations omitted). Substantial evidence is evidence that “has
sufficient probative value to induce conviction in the mind of a reasonable person.”
Id. (citations omitted). The trial court’s conclusions of law are reviewed de novo.
Id. (citations omitted).
Sheena first argues the trial court erred by granting Vernon’s motion to
modify the primary residential parent designation because its findings were not
supported by the evidence. We disagree.
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A motion to modify the primary residential parent designation is considered
a motion for a change of visitation/timesharing. See Pennington v. Marcum, 266
S.W.3d 759, 770 (Ky. 2008) (holding that a party seeking a change in the child’s
physical residence or the amount of time spent with each parent is not a change
from joint custody). Under KRS 403.320(3), “[t]he court may modify an order
granting or denying visitation rights whenever modification would serve the best
interests of the child[.]” Thus, a motion to modify the primary residential parent
designation will be granted if it “would serve the best interests of the child.”
To determine whether modification would serve the “best interests of the
child,” we look to the standard provided in KRS 403.340(3) which explains, in
relevant part:
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 the 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.
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Furthermore, KRS 403.270(2) asserts, in pertinent part:
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;
(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;
(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[.]
In this case, substantial evidence was presented to support the court’s
designation of Vernon as the primary residential parent. The record reveals that
Sheena resides in the rental home of Mr. Adams, but her name is not on the lease
agreement. Additionally, the relationship between Sheena and Mr. Adams was
found to lack stability, with one recorded instance of Sheena leaving the home
after an argument. Sheena does not possess a valid driver’s license, admitted to
transporting the child without a driver’s license, and exclusively relies on Mr.
Adams and her mother for transportation of the child. On the other hand, Vernon
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resides with his wife in a home he owns and has lived in continuously for the past
seven years. Thus, based on the record, the trial court did not err by finding the
child’s best interests would be served by designating Vernon as the primary
residential parent.
Sheena next contends the trial court erred by considering evidence of her
prior residences before the parties were divorced in 2004. Specifically, Sheena
claims evidence of her residential history prior to the divorce is irrelevant because
said evidence was not considered by the court when it designated her as the
primary residential parent in the decree of dissolution. We disagree.
The record reveals that Vernon introduced a document identifying nine
residences in which Sheena and the minor child have lived since the parties’
separation in 2000. The purpose of introducing this evidence was to establish the
continued instability of Sheena’s living arrangements while caring for the child.
As such, evidence illustrating that Sheena has lived in nine residences since 2000
was relevant for purposes of establishing the best interests of the child, irrespective
of whether the evidence was considered at the time of dissolution. Since KRS
403.270 directs the court to consider all relevant factors to determine the best
interests of the child, the court did not err by considering this evidence.
Sheena finally argues the trial court erred by treating the report of the GAL
as evidence. We disagree.
RFC2 602 authorizes the Pulaski Circuit Court, sua sponte, to take
appropriate action to address parenting arrangements, including the “[a]ppointment
2
Rules of Family Court – 28th Judicial Circuit.
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of a Guardian ad Litem to represent the best interest of the child(ren)[.]” In this
case, consideration of the report of the GAL during the final hearing was
appropriate to ascertain the best interests of the minor child. As previously
discussed, since the trial court is directed to consider all relevant evidence in
determining the best interests of the child, the report of the GAL was properly
considered. In addition, Sheena did not object to the appointment of the GAL or
the admission of the report of the GAL even though she had an opportunity to do
so at the final hearing. See Davis v. City of Winchester, 206 S.W.3d 917, 918 (Ky.
2006) (when a party fails to timely raise objection, the claim of error is not
properly preserved for appellate review). Accordingly, any claim of error in
regards to the report of the GAL is without merit.
The judgment of the Pulaski Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph B. Venters
Somerset, Kentucky
No brief for Appellee
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