Opinion
NO. 2014-CA-001960-ME
11-20-2015
TAMARA ANNE GIPSON APPELLANT v. JERRY LEE PRUITT APPELLEE
BRIEF FOR APPELLANT: Wendell Holloway Madisonville, Kentucky BRIEF FOR APPELLEE: Jill Giordano Princeton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE WILLIAM E. MITCHELL, JUDGE
ACTION NO. 09-CI-00147
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON AND KRAMER, JUDGES. KRAMER, JUDGE: Tamara Anne Gipson (Mother) appeals the Crittenden Family Court's order granting Jerry Lee Pruitt's (Father) motion to modify custody of the parties' child and awarding him permanent custody. On appeal Mother's brief presents ten allegations of error, a number of which are duplicative and can be summarized as follows: (1) the order awarding custody to Father was in error because it found that awarding temporary custody to Father would be prudent, but in the same order, awarded permanent custody to Father; (2) the order modifying custody was not supported by substantial evidence; (3) Father was not entitled to a hearing on his motion to modify custody because his motion was not supported by two affidavits; (4) Father was not entitled to a hearing on his motion to modify custody because his prior motion to modify custody was dismissed; (5) an agreement between the parties prohibited the court from modifying custody; (6) the order awarding permanent custody to Father is unenforceable because of a clerical mistake; (7) the family court abused its discretion by denying Mother's post-judgment motion; and (8) Father's decision not to call Claudena Travis as a witness was reversible error. After careful review of the record and Mother's arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties, who never married, had one child together in July 2009. On November 12, 2009, an acknowledgement of paternity and agreed order awarding permanent custody of the child to Mother was entered by the Crittenden family court.
Both parties have had problems with substance abuse and have been periodically incarcerated since the child was born. Mother was convicted of possession of methamphetamine in 2010 and again in 2013, and was incarcerated on both occasions. Father admitted to current marijuana use, and alcohol and methamphetamine abuse prior to the birth of the child. Father was convicted of complicity to commit burglary and served time in prison shortly after the child's birth. As a result the child has been the subject of dependency, neglect and abuse actions.
After Mother's incarceration in 2010, the child remained in the care of Sammy Gipson, Mother's husband at the time, and was also being cared for by friends and family members. After Father's release from prison, he sought permanent custody of the child by filing a motion to modify custody in June 2012. Mother objected, and Mr. Gipson petitioned the court to be declared the de facto custodian. Father's first motion to modify custody was dismissed after he failed to appear at a scheduled hearing. On August 28, 2012, the family court awarded temporary legal custody of the child to Mr. Gipson.
Shortly thereafter, on November 8, 2012, Mr. Gipson was arrested and charged with trafficking methamphetamine, and the child was placed with Father's brother and sister-in-law, Marvin Pruitt and Tanya Ramage. After her release from prison, Mother sought to enforce the 2009 custody agreement. She regained custody of the child on January 22, 2013, by virtue of an order in a companion juvenile case. By order dated April 16, 2013, the family court enforced the 2009 agreed custody order and returned permanent custody of the child to Mother. While seeking treatment in July 2013, Mother placed the child with Father by handwritten agreement. Temporary custody was transferred to Father in the companion juvenile action on November 22, 2013, after Mother was arrested and again charged with possession of methamphetamine. The child has remained in Father's custody since that time.
After Mother was released from incarceration on April 15, 2014, she again sought to enforce the 2009 custody agreement and regain custody of the parties' child. The motion was heard on April 22, 2014, and overruled because Mother had provided a diluted urine sample to the family court. The family court rescheduled the hearing for May 13, 2014, and directed Mother to submit to a hair follicle drug test. However on May 13, 2014, Mother was incarcerated because she had failed to enroll in a long-term rehabilitation program, a condition of her parole. The court continued the hearing on Mother's motion and on the same day Father filed a motion to modify custody. Father's motion was heard August 28, 2014. After hearing testimony from both parties, Mother's probation officer and Tanya Ramage, the family court denied Mother's motion to enforce the 2009 agreed custody order and, in a seventeen-page order entered November 4, 2014, awarded Father permanent custody of the child. Mother filed a motion to modify the order, raising a number of issues as errors and requesting the court make Father's custody temporary for a term of six months. On December 9, 2014, the family court denied Mother's motion and made its November 4, 2014 order final and appealable. Mother now appeals.
STANDARD OF REVIEW
A motion to modify custody "must be decided in the sound discretion of the trial court." Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). Appellate courts defer substantially to the trial court's decision. Id. "The test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008); CR 52.01.
Kentucky Civil Rule (CR).
An abuse of discretion occurs if the trial court's conclusion is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). Factual findings are not clearly erroneous if they are supported by substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964). "The test for substantial evidence is whether when taken alone, or in light of all the evidence, it has sufficient probative value to induce conviction in the minds of reasonable men." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999).
ANALYSIS
First we look to Mother's contention that the order modifying custody was in error because the family court found that it would be prudent to award temporary custody to Father, but subsequently ordered permanent custody awarded to Father. She contends this was a clear abuse of discretion and in reckless disregard of her right to custody of the parties' child.
Like contracts and statutes we construe the provisions of orders liberally according to the fair import of their terms, to promote justice, and to effect the object of the law. Couch v. Couch, 201 S.W.3d 463, 465 (Ky. 2006) (citing KRS 500.030). And where ambiguity exists we gather, if possible, the intention of the parties from the document as a whole, and in doing so consider the subject matter, the situation of the parties and the conditions under which the document was written, by evaluating extrinsic evidence as to the author's intentions. Id. (citation omitted). Here it is clear the issue of permanent custody was before the court. At the time of the hearing, Father had been awarded temporary custody and in his motion sought an award of primary care, custody and control of the child. Moreover, the family court's finding that it would be prudent to award Father temporary custody is not necessarily inconsistent with awarding Father permanent custody. Considering the subject matter, the situation of the parties and the conditions under which the document was written, the intent of the court to award permanent custody to Father is clear. Accordingly, the family court's order is not clearly erroneous.
Next we address Mother's contentions that the order awarding Father permanent custody was not supported by the evidence. Mother raises various evidentiary concerns throughout her brief, but our review of each is resolved by determining whether the family court's order was supported by substantial evidence. In each form Mother's arguments consist of bare factual allegations critical of Father or favorable to Mother, and all lack citation to the record. In contrast, the family court's seventeen-page order consists of a seven-page review of the factual and procedural history of the case and a nine-page application of the facts of the case to the factors set forth in KRS 403.270. While the court's order makes clear that neither party is a model parent, the family court has wide discretion to determine custody of the child and we must defer substantially to its decision. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). "A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous." Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007). Having reviewed the record and the family court's order, we find no clear error.
For instance Mother's brief enumerates evidentiary claims such as: "II. The evidence at the hearing did not support changing Permanent Custody from the Appellant to the Appellee;" "III. The evidence supported maintaining the Permanent Custody Order entered July 12, 2009, and restoring permanent custody to the Appellant;" "V. The Order entered on page seventeen in paragraph 1 and paragraph 2 was in error and not supported by the evidence;" "VI. The Agreed Permanent Custody Order entered by the Court on November 12, 2009 should be enforced;" and "X. Tanya Ramage."
Next we turn to Mother's contention that Father was not entitled to a hearing because he failed to support his motion with two affidavits. However, our Supreme Court has explained that a movant may satisfy the implicit requirement of supporting a motion to modify custody with two sworn statements by filing a verified petition supported by an affidavit signed by someone other than the movant. Coffman v. Rankin, 260 S.W.3d 767, 769, (Ky. 2008) (citing Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999)). The circumstances here are the same as in Coffman. Father filed a verified motion to modify custody, supported by the affidavit of Claudena Travis. Accordingly we find no error.
Mother's cites Copas v. Copas, 699 S.W.2d 758 (Ky. App. 1985) and Gladish v. Gladish, 741 S.W.2d 658 (Ky. App. 1987) which stand for the proposition that two affidavits are required before the court gains jurisdiction over motions to modify custody.
Our Supreme Court also noted in Coffman that in order to satisfy the implicit requirement of more than one sworn statement supporting a motion to modify custody, it is best practice for the movant to file an affidavit separate from their verified petition to modify custody. 260 S.W.3d at 769 n.6.
Similarly Mother contends that Father was not entitled to a hearing because Father's previous motion to modify custody was dismissed. Her entire argument consists of five sentences summarizing the procedural history related to the dismissal and a bald conclusion that the order dismissing Father's first motion to modify "should have prevented and precluded [Father] from filing another Motion for change of custody thirteen (13) months later."
That said, Mother makes no statement of preservation, citation to the record, or reference to any statute or case law in support of her argument. Such a contention woefully fails to comply with CR 76.12, which requires appellant's brief to contain "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner," and "supportive references to the record and citations of authority pertinent to each issue of law." Although Father does not raise Mother's failure to comply with CR 76.12, we have wide latitude to determine the proper remedy for a litigant's failure to follow the rules of appellate procedure and are well within our authority to deny review. Age v Age, 340 S.W.3d 88, 97 (Ky. App. 2011). If appellant's brief fails to make a statement of preservation, cite to the record, or cite relevant authority, we need not address the merits of the claim. Cherry v. Augustus, 245 S.W.3d 766, 781 (2006). Here, upon the cursory review that this issue only deserves, we are satisfied that the prior dismissal of Father's motion to modify custody did not prevent or preclude Father from re-filing another motion to modify, or prevent or preclude the family court from ruling on Father's second motion.
Next, Mother claims that an agreement between the parties prohibited the family court from modifying custody. But again Mother makes no statement of preservation and fails to cite to the record or to any supporting authority. While we are satisfied that the family court was not bound by the parties' agreement regarding custody and retained jurisdiction to revise its prior custody order, we decline to review the alleged error because of her failure to comply with the Rules. Id.
Mother then contends the family court's order is null, void and unenforceable because the county in which the family court judge was sitting was misidentified beneath the judge's signature line. She supports this contention with two conclusory sentences and again fails to make a statement of preservation, cite to the record or to any supporting authority. We are confident the clerical error Mother points to as reversible error was harmless and did not prejudice Mother. Nonetheless, Mother again fails to comply with CR 76.12, and we decline to review this allegation of error further on the merits. Id.
Mother argues thereafter that the family court abused its discretion by denying her post-judgment motion. In support Mother offers four conclusory sentences, but again fails to offer a statement of preservation, citation to the record or any relevant authority. Because Mother fails to comply with CR 76.12, we decline to review this allegation of error on the merits. Id.
Mother cites Greathouse v. American National Bank and Trust Company, 796 S.W.2d 868 (Ky. App. 1990), wherein we applied the abuse of discretion standard to a lower court's order of default judgment entered as sanction for a party's failure to answer discovery. Greathouse has no other apparent relation to the case at bar. --------
Mother next alleges that it was error for Father to have supported his motion for custody with an affidavit from Ms. Travis, but not to call her to testify at the hearing. In support of her contention Mother offers three conclusory sentences and again fails to offer a statement of preservation, citation to the record or to authority. Father was under no obligation to call Ms. Travis, or any one else, to testify in support of his motion to modify custody. Nonetheless, because Mother fails to comply with CR 76.12, we decline to further review this allegation of error on the merits. Id.
Finally, Mother contends the testimony of Ms. Ramage supported awarding custody to Mother. In support of her contention Mother's brief discusses Ms. Ramage's alleged testimony without any citation to the record. Similarly she makes no statement of preservation and cites to no supporting authority of any kind. Again we are guided by the principles that defer to the family court's evaluation of witnesses' testimony and limit our discretion to replace our judgment with that of the family court. Regardless, because Mother fails to comply with CR 76.12, we decline to review her final allegation of error on the merits. Id.
In sum, Mother has presented us with no basis to reverse the family court's order awarding permanent custody to Father. Therefore, we affirm the November 4, 2014, Order of the Crittenden Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Wendell Holloway
Madisonville, Kentucky
BRIEF FOR APPELLEE: Jill Giordano
Princeton, Kentucky