McLaughlin v. Cooper

Full title: KELLY ANNE MCLAUGHLIN APPELLANT v. ANDREW ROBERT COOPER APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jun 13, 2014

NO. 2012-CA-002037-MR (Ky. Ct. App. Jun. 13, 2014)

Opinion

NO. 2012-CA-002037-MR

06-13-2014

KELLY ANNE MCLAUGHLIN APPELLANT v. ANDREW ROBERT COOPER APPELLEE

BRIEFS FOR APPELLANT: Robert W. Riley Louisville, Kentucky BRIEF FOR APPELLEE: Donna J. Foust Louisville, Kentucky

JONES

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE STEPHEN M. GEORGE, JUDGE

ACTION NO. 10-CI-502344

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; JONES AND MOORE, JUDGES. JONES, JUDGE: Kelly Anne McLaughlin appeals from the October 2, 2012, visitation modification order of the Jefferson Circuit Court. Kelly also appeals from the October 25, 2012, order denying her motion to alter, amend, or vacate the October 2, 2012, order. Because we hold that the trial court did not abuse its discretion when it modified visitation, we affirm.

I. Factual and Procedural Background

Kelly and Andrew Robert Cooper are the parents of D.M.C. (Child). In 2010, a custody proceeding was initiated by Andrew in Jefferson Circuit Court. On December 10, 2010, the parties filed a mediated agreement with the trial court in which they agreed to joint custody and set out a timesharing schedule. Under that schedule, Kelly and Andrew enjoyed equal parenting time with Child. Due to his position as an assistant basketball coach at Bellarmine University, Andrew's job required periodic overnight trips away from home. In order to account for Child's care when those trips coincided with Andrew's parenting time, the December 10, 2010, agreement contained the following provision:

The parties shall in August of each year review Drew's upcoming basketball schedule so as to determine the nights that he will be gone overnight and unable to care for [Child] on his time. On those occasions [Child] shall be with Kelly. Beginning immediately, on the nights that Drew will be gone overnight and unable to care for [Child] on his time, [Child] shall be with Kelly.

On August 8, 2012, Andrew filed a motion to have the above provision eliminated from the parties' agreement. At the time of the December 10, 2010, agreement, Andrew was single. Andrew has since remarried and has two children by his current wife, Tamara, who also has two children from a previous relationship. He continues to be employed as an assistant Basketball Coach with Bellarmine University, which still requires him to travel overnight. However, Andrew identified the provision as being unnecessary and causing chaos, and further alleged that Kelly used the provision as a means to prohibit Child from spending time with Andrew's new wife and family. Following a hearing, the trial court granted Andrew's motion in an order entered on October 2, 2012.

Thereafter, Kelly filed a Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate the October 2, 2012, order. In that motion, Kelly argued that allowing Child to stay with her stepmother while Andrew was away was a safety risk, because Tamara's attention would be divided among multiple children. Kelly further argues that allowing Child to stay with Tamara, while Kelly herself was available, was manifestly unfair; that the provision had not caused chaos; and that it was a bargained for provision of the parties' agreement. The trial court denied the motion on October 25, 2012. This appeal followed.

II. Standard of Review

The trial court's removal of the disputed provision functions as a modification of the parties' visitation. Kentucky Revised Statutes (KRS) 403.320 governs the modification of visitation and states, in part:

[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.

KRS 403.320(3). "This Court will only reverse a trial court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004)(citation omitted).

III. Analysis

On appeal, Kelly makes a general argument that the modification was in error. Although her brief fails to identify a more specific manner in which the trial court abused its discretion, we have discerned the following assertions from her brief: there was no basis for the modification; Andrew failed to present sufficient evidence which would justify the modification; the trial court failed to make a finding that modification was in Child's best interest; and the trial court failed to make a finding that the disputed provision was not in Child's best interest. For the following reasons, we disagree.

We first note that whether modification serves the best interest of the child is a legal conclusion and not a factual finding. See KRS 403.320; see also Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). However, the basis for that legal standard is fact-driven. Anderson, 350 S.W.3d 453.

To review the judge's decision on appeal, it is important to know what facts the judge relied on in order to determine whether he has made a mistake of fact, or to even determine if he is right at law, but for the wrong facts. If a judge must choose between facts, it is clearly relevant which facts supported his opinion.

Id. at 455. We will not disturb factual determinations unless they are clearly erroneous or unsupported by substantial evidence. CR 52.01; Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010). "The test of substantiality of evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). Moreover, it is within the discretion of the trial court to judge the credibility of the witnesses, and to make a determination based on the entirety of the evidence. Murphy v. Murphy, 272 S.W.3d 864 (Ky.App.2008).

In the case before us, the trial court supported its decision to eliminate the disputed provision with the following language:

These parties have substantial conflict, and are unable to deviate from a specific schedule. . . . Mr. Cooper requested that the parties trade off the nights in conflict during the 2011-2012 basketball season. Ms. McLaughlin understandably declined, because she works weekends and she sets her schedule based on the alternating weekends that she has child. However, she testified that her employer is flexible, but she has chosen not to request any changes to her work schedule to accommodate Mr. Cooper. In addition, in the last basketball season during Bellarmine University's run for the National Championship, Mr. Cooper requested that he be permitted to take Child to Northern Kentucky for the National Championship if Bellarmine were playing in it. Ms. McLaughlin declined, stating that Child had a soccer game that weekend. Though Bellarmine lost, the situation reflects the lack of flexibility. Clearly, for Child to experience her father's part in pursuit of a National Championship is a much greater life experience than one more soccer game.
The parties' requirement for the right of first refusal tends to exacerbate conflict rather than alleviate it. A strict interpretation could, and has in this case, prevented a sleepover with relatives or friends. That is clearly not
in Child's best interest. Therefore, the requirement under numerical paragraph four of the parties' Mediated Agreement is vacated. The Court expects that there will be no abuse of the new agreement.

The trial court's order makes no mystery of the facts it relied upon when making its decision.

Common in custody and visitation disputes, we are faced with a clear case of he said, she said. Andrew argued that enforcement of the provision caused chaos to the detriment of Child, and Kelly disagreed. The trial court, acting within its discretion, chose to believe the events as portrayed by Andrew. Murphy, 272 S.W.3d 864. "[W]hen the testimony is conflicting we may not substitute our decision for the judgment of the trial court." R. C. R. v. Com. Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998). The trial court's factual determinations are supported by substantial, albeit disputed, evidence. Consequently, based on those determinations, we find no error with the trial court's conclusion that discontinuation of the disputed provision would best serve the Child's interests.

IV. Conclusion

For the foregoing reasons, the October 2, 2012, and October 25, 2012, orders of the Jefferson Circuit Court are affirmed.

ALL CONCUR. BRIEFS FOR APPELLANT:
Robert W. Riley
Louisville, Kentucky
BRIEF FOR APPELLEE:
Donna J. Foust
Louisville, Kentucky