Opinion
NO. 2017-CA-001308-ME
04-06-2018
BETH MANNING APPELLANT v. DOUGLAS BURBRINK, TRACY BURBRINK, KRISTIN MANNING, & JOSHUA PETROZE APPELLEES
BRIEFS FOR APPELLANT: Kevin J. Moser Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Mark A. Ogle Emily M. Cochran Fort Mitchell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-CI-00430 OPINION
AFFIRMING
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BEFORE: CLAYTON, JOHNSON, AND NICKELL, JUDGES. CLAYTON, JUDGE: Beth Manning appeals the Kenton Family Court's order denying her motion for joint custody of N.J.B., a grandson. The family court denied the motion because Beth failed to establish that a change of circumstances had occurred under Kentucky Revised Statute (KRS) 403.340(3), which is necessary for modification of custody.
After careful consideration, we affirm.
BACKGROUND
The issues in this case concern the custody of the child, N.J.B., who was born on January 15, 2013. His biological father is Joshua Petroze, and his biological mother is Kristin Manning. The parties were never married, and paternity was established through testing. In late 2013, Joshua and Kristin were arrested and charged with numerous counts of burglary. Ultimately, they were convicted and are currently imprisoned.
Although Beth Manning, the paternal grandmother, and Kristin Manning, the biological mother, share the same last name, they are not related. --------
Upon the parents' arrest, a dependency action was initiated in Kenton County, where the parents resided. In the dependency action, custody of N.J.B. was given to Beth, the putative paternal grandmother who lived in Kenton County. Kristin's mother, Tracy Burbrink, and stepfather, Douglas Burbrink (collectively "the Burbrinks"), after learning about the charges against their daughter, reached out to Beth for parenting time with N.J.B, but Beth rebuffed them. The Burbrinks lived in Harrison County, Indiana.
In early 2014, the Burbrinks initiated this action when they filed a petition for custody of N.J.B. At that time, it was discovered that a paternity test had not been performed to establish that Joshua was the biological father. Thus, the family court ordered Joshua to take a paternity test and gave the Burbrinks temporary custody of N.J.B. during the pendency of the proceedings. The paternity test established that Joshua was N.J.B.'s biological father.
Next, an agreed order of custody was entered on September 12, 2014, wherein the maternal grandparents, Douglas and Tracy, were granted sole custody of N.J.B, and the paternal grandmother, Beth, was provided regular parenting time. All parties agreed to this order. Since the parties did not live in the same area, and Harrison County, Indiana, was approximately two and a half hours from Kenton County, the family court provided a halfway point for the parties to exchange N.J.B.
In March 2015, the Burbrinks filed a name-change action in Harrison County. They sought to change the child's last name from Petroze to Burbrink. Beth testified in opposition to the name change. On August 7, 2015, following a hearing, the Harrison County Court granted the name-change petition, and N.J.B.'s last name became Burbrink.
In August 2016, the Burbrinks filed a motion to terminate Beth's parenting time and to establish a child support obligation for the parents. The basis of the Burbrinks' motion regarding Beth's parenting time was that she had taken N.J.B. on vacation to Florida without notifying them and that she had been taking the child to visit his father in prison. In response to this motion, Beth filed a counter-petition for modification of custody. A hearing was held at that time wherein the Kenton Family Court established some procedures and responsibilities for the parties but did not address Beth's motion to modify custody.
In January 2017, Beth filed a motion for the family court to address her modification of custody petition, and the family court set a hearing for July 6, 2017. In Beth's motion for modification of custody (counter-petition for custody), she requested joint custody of N.J.B. with the Burbrinks.
She maintained that in the two years since the entry of the September 2014 agreed order of custody, her relationship with N.J.B. had deepened, and therefore, she was a proper person to exercise custody. At the hearing, Beth called several witnesses including herself, her husband, her sister, a niece, and Douglas Burbrink. She also introduced the transcript of the name-change hearing in Indiana. The Burbrinks did not call any witnesses because they maintained she had not met the statutory requirement for a modification, that is, the reason proffered to modify custody, a change in circumstance, did not exist.
Ruling from the bench, the family court judge denied the petition for modification of custody. It held that the parties had agreed to the current custody arrangement, that N.J.B. was doing well, and that Beth had not established a change in circumstances to justify a modification of custody. A written order was entered on July 12, 2017, reflecting these comments. Beth now appeals this order.
STANDARD OF REVIEW
The decision as to whether custody should be modified is left to the sound discretion of the trial court. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). An appellate court reviews the decision in a child custody case to ascertain whether the findings of the trial court were clearly erroneous, or if it abused its discretion. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). An appellate court, however, reviews legal issues de novo. See Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001).
To amount to an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). And a finding of fact is clearly erroneous if it is unsupported by substantial evidence; that is, evidence sufficient to induce conviction in the mind of a reasonable person. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
With these standards in mind, we turn to the case at bar.
ANALYSIS
On appeal, Beth contends that the family court incorrectly applied KRS 403.340 by not recognizing that her deepened relationship with N.J.B. was a change in circumstance under KRS 403.340(3). She argues that the trial court improperly applied the law by a too narrow reading of "change in circumstances," and therefore, the proper statutory analysis was not made. Beth complains that the family court focused on external factors in rendering its decision and did not pay enough attention to the factor "integration of the child into the family." Primarily, she focuses on the Burbrinks lack of understanding about N.J.B.'s paternal family. Beth is also very troubled by the name-change petition filed by the Burbrinks in Indiana.
Under KRS 403.340, a family court may not modify a prior custody decree, if after a hearing, it finds based on the facts that have occurred since the entry of the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has not occurred in the circumstances of the child or his custodian, and that the modification is unnecessary to serve the best interests of the child. KRS 403.340(3). In other words, KRS 403.340(3) provides that a party seeking modification must prove that "a change has occurred in the circumstances of the child or his custodian" and that "modification is necessary to serve the best interests of the child."
Additionally, the statute lists six statutory factors to ascertain whether a modification of custody is in the child's best interests. For a trial court to determine whether a change has occurred, and modification is in the child's best interests, all these factors are relevant. Beth relies heavily, if not solely, on one factor, which states, "[w]hether the child has been integrated into the family of the petitioner with consent of the custodian[.]" KRS 403.340(3)(b). But she does not address with any specificity KRS 403.340(3)(c), which mandates that the family court also address the factors set forth in KRS 403.270(2) to determine the best interests of the child. KRS 403.270(2) is the statute used in making initial custody decisions.
Interestingly, Beth provides no case law to support her suggestion that because N.J.B.'s relationship with her has deepened and he has been integrated into her family, a change in circumstances has occurred and modification is warranted. Further, Beth maintains that the trial court focused on the external circumstances. But, as noted by Beth, the cases about modification of custody rely on external circumstances such as custodial relocation, improper environment, or a new marriage. Indeed, we reason changes in circumstances warranting custodial modification would primarily be external ones so that they could be proven. It is extremely difficult, if not impossible, to measure internal changes such as a deepened relationship with a grandparent, who is not a custodian.
Beth proposes that KRS 403.340(3)(b) supports her contention that a deepened relationship with N.J.B. is a change of circumstances. She believes that this contention is supported by the statutory language therein, which states to determine a change of circumstances look at "[w]hether the child has been integrated into the family of the petitioner with consent of the custodian[.]" Id. As previously discussed, it is one of six factors that a trial judge considers to ascertain if a change in circumstances has occurred and if so, whether modification is in the child's best interest. KRS 403.340(3)(b). But this factor alone is insufficient to mandate a "change in circumstances." Certainly, the best interests of the child must be considered. KRS 403.340(3)(c).
Additionally, Beth misinterprets the meaning of the factor. In Carnes v. Carnes, 704 S.W.2d 207 (Ky. 1986), the father sought to obtain sole custody of his children after the parents had been awarded joint custody in the dissolution. Initially, the children lived with the mother, but the mother felt unable to care for the children and requested that the children live full-time with their father. He agreed and after the mother remarried, she wanted joint custody restored. The Court recognized that the children had been integrated fully into the father's home during the time they lived solely with the father and stated:
Our interpretation of the consent requirement of KRS 403.340 is that it only applies to the consensual transfer of physical possession, and not to the integration of the child. Integration is often times but a natural consequence of this transfer. The trial court need only determine whether the child has been consensually transferred and whether integration has in fact occurred.Id. at 209. Thus, the Court determined that this factor also has an external factor - consensual transfer of physical possession. Hence, the trial court need only determine if there was a consensual physical transfer, and then whether the children were integrated into the new family constellation. In Carnes, the Court modified joint custody and awarded sole custody to the father. Id.
Here, there has been no transfer of physical custody, consensual or not. Instead, both parties have followed the dictates of the agreed custody order - N.J.B. lives with the Burbrinks, who have sole custody, and spends parenting time with Beth. He is integrated into both homes, and the testimony at the hearing supports his integration into both homes.
Notwithstanding the fact that the child's physical custody has remained the same, uncontroverted testimony by Beth, her witnesses, and Douglas showed that the child is doing well with both sets of grandparents. In fact, Beth wholeheartedly agrees that Burbrinks are doing a good job. She asserts, however, that because of her excellent relationship with N.J.B., she gives voice to the paternal side of his heritage, which she believes is at risk if custody is not modified. We are not persuaded that Beth must have joint custody to imbue N.J.B. with a strong sense of family or a love for his father's family. Under the current custodial arrangement, she loves and teaches N.J.B.
Beth's argument regarding augmentation is interesting, but unfortunately, it is inchoate and fails to explain any way to measure an augmentation of present circumstances. In a modification of custody case, the best interest of the child is always primary. Here, by maintaining the current custodial arrangement, N.J.B. is provided stability and the continuation of an environment in which he is, without dispute, flourishing. Understandably, Beth wants N.J.B. to understand and be a part of his father's family. But she can and is doing so without any need to change the agreed custody order.
All evidence points to the fact that N.J.B. is flourishing under his current custody and living arrangements. Beth expressed no concerns with his living situation including his doctor and school. Indeed, Beth testified at the hearing that N.J.B. is doing well with the Burbrinks. The other witnesses at the hearing did not contradict this statement. Further, no one who testified at the hearing pointed out any change in circumstances for either the child or the custodians except changes that are the result of the natural progression of time.
Because N.J.B. is growing up, his relationship with both sets of grandparents are also changing and maturing. Children grow up and develop. Relationships deepen. It is the natural order of family life. Beth has shown no change in circumstance other than the normal ebb of a close and loving family relationship. Growing closeness with both sets of grandparents is inevitable and expected. It is not a change in circumstance.
Beside a change in circumstance, Beth also bears the burden of proof in showing that joint custody would be in the best interest of N.J.B. This element was not addressed.
Finally, our Court cannot raise the issue of Beth's standing to seek custody since it was not raised in the trial court. See Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010). Nonetheless, it is well-settled that an appellate court may affirm a lower court for any reason supported by the record. McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009).
CONCLUSION
Substantial evidence supports the family court's finding that no change in circumstance occurred that necessitated a modification of custody and that the child's best interests are being met under the current custodial arrangement since he is flourishing. Moreover, the family court did not abuse its discretion in maintaining the current custodial arrangement. Hence, we affirm the decision of the Kenton Family Court denying the motion to modify custody.
ALL CONCUR. BRIEFS FOR APPELLANT: Kevin J. Moser
Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Mark A. Ogle
Emily M. Cochran
Fort Mitchell, Kentucky