Opinion
NO. 2019-CA-001235-ME
05-15-2020
STEPHANIE SHOFNER AND BOBBIE LAMER APPELLANTS v. DUANE THOMPSON AND KRISTIN SIMADIS APPELLEES
BRIEF FOR APPELLANTS: Dawn L. McCauley Lebanon, Kentucky BRIEF FOR APPELLEE DUANE THOMPSON: Dustin W. Warren Columbia, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TAYLOR FAMILY COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 16-CI-00261 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES. DIXON, JUDGE: Stephanie Shofner and Bobbie Lamer appeal from a July 2, 2019, order of the Taylor Family Court which made Duane Thompson the sole custodian of a minor, J.T. The order also denied Shofner and Lamer the right to visitation with J.T., though they remained the child's de facto custodians. We affirm as to the decision to grant sole custody to Thompson but vacate and remand the decision to deny visitation to Shofner and Lamer because the family court did not find that J.T. would be seriously endangered by visiting with them, as is required by KRS 403.320.
We shall use only the child's initials for privacy purposes. Pursuant to the family court's order of July 2, 2019, the child's name was changed, and thereby the initials, from J.L. to J.T.
Kentucky Revised Statutes.
I. Relevant Factual and Procedural History
It is necessary to set forth this case's lengthy procedural history to fully understand the court's decision to award sole custody of J.T. to Thompson and to deny visitation to Shofner and Lamer. In September 2016, Shofner and Lamer petitioned for custody of J.T., who had been in their physical custody since his birth in 2015. Thompson filed a response, also seeking custody of J.T., his biological child. The child's mother, Kristin (sometimes spelled Kristen in the record) Simadis, who apparently is related to Lamer, did not take an active role in the proceedings (or this appeal), was never married to Thompson, and was amenable to Shofner and Lamer having custody of the child. In March 2017, the court issued findings of fact and an order concluding that Shofner and Lamer met the criteria to be de facto custodians of J.T. and that, even though the court was concerned about Shofner and Thompson's criminal history, it was in J.T.'s best interest for joint custody to be awarded to Shofner/Lamer and Thompson, with Shofner/Lamer being the primary residential parents. In November 2017, the court granted Thompson's motion for increased "visitation" (actually timesharing) and ordered an investigation to determine whether J.T. had been sexually abused, based upon concerns expressed by Shofner and Lamer regarding the child "acting out sexually."
The parties and court often refer to "primary residential custodians," but in joint custodial situations, the correct term is "primary residential parent." Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008).
In December 2017, Thompson moved to be designated the primary residential parent, with Shofner and Lamer to receive "restricted timesharing . . . ." In February 2018, the court found that the investigation showed no evidence of any issues in Thompson's home but that there had been sexual abuse of other children in Shofner and Lamer's home, some of which was perpetrated upon other children by an adult son of Shofner. At that time, nine other minors—not counting J.T.—resided with Shofner and Lamer. The family court concluded it did "not believe" J.T. "ever acted out sexually in any significant manner" and that Shofner and Lamer had "either embellished or fabricated" the allegations "to prohibit [Thompson] from exercising overnight visitation [with J.T.]" Record (R.) at 128. However, the court found that Thompson's work and Drug Court obligations meant he was "not in a position at this time" to be J.T.'s primary residential parent. R. at 129 (emphasis original).
Thompson again filed a motion to modify timesharing in April 2018, asking the court to make him J.T.'s primary residential parent. After conducting a hearing, in May 2018 the family court issued a blistering order, concluding four of the older children residing with Shofner and Lamer "had significant attendance issues" at school and were "completely out of control." R. at 143-44. The court found that Shofner and Lamer had moved to a different county, without informing Thompson, "to stay one step ahead of Court involvement concerning truancy." R. at 145. The court expressed astonishment that Shofner had recently received a fourth conviction for driving with a child unrestrained in a car seat, deeming it showed "complete irresponsibility . . . ." R. at 146. The court also found that Shofner and Lamer's "at best, sporadic," work history, as well as the significant amount of financial assistance they received from the government on behalf of their minor children, meant the court would have to be "naive to believe that the financial benefit of having these children in the home is not partly the reason why [Shofner and Lamer] have sought custody of this number of children." R. at 146. By contrast, the court noted Thompson was employed and complying with his Drug Court obligations.
The court found that it was potentially dangerous for J.T. to grow up in a household demonstrating "dysfunctional, illegal and disrespectful conduct by the older children." R. at 147. After noting that Shofner had stated that J.T. was "hyper, always ready to fight someone[,]" the court opined it "would expect nothing else" because "[a]ny child being raised in the dysfunctional and chaotic household of [Shofner and Lamer] would naturally be hyper and ready to fight. If [J.T.] observes this conduct on a daily basis, the Court firmly believes he will grow up and engage in the same conduct as [Shofner and Lamer's] four older children." Id.
The court also acknowledged that placing J.T. in Thompson's home would be "risky" because he "is a recovering addict, has a significant criminal history, limited transportation and is in Drug Court." Id. However, the court thought Thompson was "on the road to recovery" and "loves [J.T.] more than anything in this world." Id. Therefore, the court found "the greater risk" would be to keep J.T. in Shofner and Lamer's home because "if this child continues to be raised in the dysfunction that currently exists in their household, [J.T.] will inevitably engage in the same conduct as [Shofner and Lamer's] four older children. This is a possibility this Court simply cannot allow." R. at 148. Thus, the court ordered that the parties would retain joint custody, but made Thompson the primary residential parent, with Shofner and Lamer receiving timesharing with J.T. every other weekend.
About a year later, in May 2019, Shofner and Lamer moved for sole custody of J.T. based upon allegations of, among other things, Thompson leaving the child alone in the car while going into a store. In June 2019, Thompson also moved for sole custody of J.T. The court conducted an evidentiary hearing at which Shofner, Lamer, and Thompson testified.
Thompson's motion to change from joint to sole custody was not accompanied by any affidavits, as is required by KRS 403.350. Had Shofner/Lamer timely noted that defect, the motion would properly have been dismissed. However, they did not raise the issue and, thus, have waived it. Masters v. Masters, 415 S.W.3d 621, 625 (Ky. 2013).
Also, contrary to prior precedent, a motion for change of custody which does not contain statutorily mandated affidavit(s) does not deprive a trial court of subject matter jurisdiction. Id. at 624. Therefore, although not mentioned in Masters, our holding in Gossett v. Kelley, 362 S.W.3d 379, 381 (Ky. App. 2012), that "[t]he requirement of affidavits to establish subject matter jurisdiction is the means by which the legislature intended to maximize the finality of a custody award" is no longer operative, even though Westlaw, oddly, does not show that Gossett was overruled sub silentio by Masters.
In July 2019, the court issued another strident order upon finding that the Cabinet for Health and Family Services (the Cabinet) had been asked to investigate Thompson four or five times and all claims had been unsubstantiated. The court stated that there was "no evidence" as to the source of the referrals to the Cabinet but, nonetheless, assumed they had "obviously" been made by Shofner and Lamer. R. at 175. The court found Thompson to be an "excellent father who has provided good care for [J.T.]" Id. By contrast, the court found that since its last substantive order, one of Shofner and Lamer's teenage children had begun residing in his own dwelling, another teenager had been removed after being charged with assaulting a police officer and a teacher, a third teenager had been removed due to behavioral and truancy issues, and a fourth teenager residing with Shofner and Lamer had "unsatisfactory" school attendance and "can barely read." R. at 177.
Thus, the court stated it was "easy" to decide that it would be in J.T.'s best interest to award sole custody to Thompson. R. at 178. The court also concluded it would be in J.T.'s best interest for Shofner and Lamer to have no visitation with J.T. because their home "is one of chaos, anarchy and dysfunction" as the children they have raised "have no respect for authority . . . do not attend school . . . [have] significant behavioral and developmental issues, and inevitably end up on the Taylor District Court Juvenile docket." R. at 179. The court then remarkably predicted that if J.T. "continues to visit with [Shofner and Lamer], he will be exposed to their dysfunctional home which has led every child they have raised down a path of destruction and the frivolous Cabinet referrals will continue." R. at 180. Thus, according to the court, it was in J.T.'s best interest to have "no contact" with Shofner and Lamer. Id. However, the court did not cite to KRS 403.320, which contains a presumption that visitation is appropriate unless it would seriously endanger a child.
Shofner and Lamer then filed a motion to alter, amend, or vacate pursuant to CR 59.05. Curiously, the motion did not cite KRS 403.320 (or any other authority). The court denied the CR 59.05 motion in July 2019. Shofner and Lamer then filed this appeal.
Kentucky Rules of Civil Procedure.
II. Analysis
Shofner and Lamer raise two overarching issues: first, whether the court erred by awarding sole custody to Thompson; and second, whether the court erred by denying them all contact with J.T.
A. Custody
Shofner and Lamer do not phrase the question directly as such, but the gist of their argument is that the family court erred by making Thompson J.T.'s sole custodian. Unfortunately, the family court cited no statutes or precedent in its order to indicate the legal guidelines which governed its custody decision. Therefore, we must discuss the proper standards for modifying custody.
The initial order awarding joint custody to Shofner/Lamer and Thompson was issued in March 2017. That decision is, for purposes of this case, the custody decree. "The trial judge's 'final' decision about custody is the custody decree." Frances v. Frances, 266 S.W.3d 754, 757 (Ky. 2008). There were subsequent orders between the 2017 custody decree and the July 2019 order at issue, but they did not change the parties' joint custody of J.T. Pennington, 266 S.W.3d at 767 ("Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree.").
Ascertaining that the custody "decree" was issued in March 2017 is important because it then is obvious that more than two years had elapsed before Thompson filed a motion for sole custody in June 2019. That two-year milepost is significant because the standard for custody modifications is dependent upon whether the motion is made more than two years following the custody decree. Id. at 769 ("If a parent . . . files a motion to modify custody within two years of the date of the custody decree, then the moving party must establish that the move or other reason seriously endangers the child . . . in order to modify custody. . . . If a motion for change of custody is made more than two years after the date of the custody decree, the court must then evaluate custody based on the best interests of the child, and determine whether a change of custody from joint to sole should occur on that basis."). Because Thompson's motion was made more than two years after the decree, the governing standard was the best interest of the child.
Though the family court, unfortunately, did not cite any pertinent precedent or statutory authority in its decision, it did correctly acknowledge that the best interest standard was controlling. Thus, we may review the custody decision, though it would have been better for the court to have expressly stated how it viewed the evidence in light of the applicable statutory factors.
The best interest determination is within the trial court's "sound discretion . . . ." Id. "When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Frances, 266 S.W.3d at 756. Accordingly, even if "some of the evidence conflicted with the trial court's conclusions" such that "a different trial court or a reviewing appellate court might disagree" with the trial court's decision, we must afford "a great deal of deference" to a trial court's "findings of fact and discretionary decisions" because it was in "the best position to resolve the conflicting evidence . . . ." Id. at 758-59.
KRS 403.340(3) provides that in determining whether the best interest of a child would be served by modifying a custody decree, based upon changed facts or circumstances since the prior decree, a court shall consider factors such as: "[t]he factors set forth in KRS 403.270(2) . . . ; [w]hether the child's present environment endangers seriously his physical, mental, moral, or emotional health;" and "[w]hether the harm likely to be caused by a change of environment is outweighed by its advantages . . . ." Among the pertinent factors in KRS 403.270(2) are:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody;
. . .
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
. . .
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
. . .
(h) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian . . . .
Here, the overriding concern expressed by the court is Shofner and Lamer's "dysfunctional" home environment, which logically and implicitly relates to statutory factors such as the mental health of J.T. and the parties, J.T.'s interrelationship with Shofner/Lamer and the other children in their home, whether the harm involved in changing his primary residence would be outweighed by its advantages, and the care and nurture he has received in Shofner and Lamer's home.
It is uncontested that in the roughly thirteen months after the court made Thompson J.T.'s primary residential parent, two children in Shofner and Lamer's care were removed due to behavioral problems, another child's attendance at school was sparse at best, and another child under eighteen had moved into his own residence. In short, multiple children entrusted to Shofner and Lamer had serious behavioral issues and/or had been involved in juvenile court proceedings. It is also uncontested that at least some of the children failed to attend school with sufficient regularity. Simply put, the court did not abuse its discretion by concluding, based upon the litany of problematic behaviors by Shofner and Lamer's other children, that it would be in the best interest of J.T. for Thompson to be the sole custodian.
We acknowledge that the record showed that Shofner and Lamer did not physically harm J.T., and another court could have given credence to their addition-by-subtraction-type argument whereby their home became more stable and suitable once some of the older children departed. However, the family court was in the best position to weigh the overall evidence.
Finally, we reject Shofner and Lamer's argument that the poor behavior of their other children was irrelevant because it had not directly impacted J.T. Instead, as our Supreme Court noted over thirty years ago, albeit under distinguishable facts:
This case presents a potential continued exposure of the children to an unwholesome environment. . . .Krug v. Krug, 647 S.W.2d 790, 792-93 (Ky. 1983) (citations omitted).
A trial judge has a broad discretion in determining what is in the best interests of children when he makes a determination as to custody. In many instances he will be able to draw upon his own common sense, his experience in life, and the common experience of mankind and be able to reach a reasoned judgment concerning the likelihood that certain conduct or environment will adversely affect children. . . .
We also think the trial court is not precluded from consideration of circumstances where the neglect, abuse, or environment has not yet adversely affected the children but which, in his discretion, will adversely affect them if permitted to continue. In other words, a judge is not required to wait until the children have already been harmed before he can give consideration to the conduct causing the harm.
B. Visitation
Shofner and Lamer argue the court improperly terminated their parental rights. This argument is inapposite as their status as de facto custodians was not terminated and the court noted that it would reconsider visitation in the future. Instead, the proper issue is whether the family court abused its discretion by denying them visitation with J.T.
Though not cited by the family court or the parties, visitation is governed by KRS 403.320, which provides in relevant part:
(1) A parent not granted custody of the child and not awarded shared parenting time under the presumption specified in KRS 403.270(2), 403.280(2), or 403.340(6) is entitled to reasonable
visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.Thus, as Professor Graham and former Justice Keller aptly note in their treatise on Kentucky Domestic Relations Law, "[a]n order barring the child from all contact with a parent [or de facto custodian] should be used only in extreme cases because there are other, less drastic alternatives, such as supervised visitation." Louise Everett Graham & James E. Keller, 16 KY. PRAC. DOMESTIC RELATIONS L. § 22:6 (2019). The court denied visitation without finding that visitation would seriously endanger J.T.'s health.
. . .
(3) The 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.
While KRS 403.320 does not specifically refer to de facto custodians, we note KRS 403.270 treats de facto custodians as parents, in that all provisions relating to de facto custodians apply with equal force to both de facto custodians and parents. Therefore, by implication, we are of the view that the legislature intended for the provisions of KRS 403.320, relating to modification of visitation, to apply with equal force to both de facto custodians and parents. --------
Here, the court focused wholly on the best interest of J.T., which was appropriate in determining custody. However, in determining visitation, the best interest of the child standard is not the sole focus. As Professor Graham and Justice Keller succinctly put it, "a noncustodial parent's visitation is not dependent on a trial court's finding that visitation would be in the child's best interest. Rather, the noncustodial parent has a right to visitation unless that visitation would endanger the child." Louise Everett Graham & James E. Keller, 16 KY. PRAC. DOMESTIC RELATIONS L. § 22:3 (2019).
Regrettably, the family court did not discuss the strong presumption in favor of visitation pursuant to KRS 403.320. Indeed, the court did not discuss whether allowing Shofner and Lamer any type of visitation with J.T., even supervised, would have seriously endangered the child. For example, the court did not find that Shofner or Lamer had engaged in violence (domestic or otherwise), suffered from a mental illness so serious as to endanger J.T., or had drug/alcohol abuse issues. See Louise Everett Graham & James E. Keller, 16 KY. PRAC. DOMESTIC RELATIONS L. § 22:6 (2019) (discussing the usual situations where a parent is denied visitation).
Curiously, Shofner and Lamer have not explicitly argued that the family court's failure to address the strong presumption in favor of visitation in KRS 403.320 was improper. However, the core of their argument is that they have a right to have contact with J.T. While clearly, the evidence before the family court might satisfy a finding of serious endangerment, the court must comply with statutory authority before so doing. Upon remand the family court may require additional proceedings for such a finding.
III. Conclusion
For the foregoing reasons, the Taylor Family Court's award of sole custody of J.T. to Thompson is affirmed; however, its decision denying Shofner/Lamer visitation with J.T. is vacated and remanded for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANTS: Dawn L. McCauley
Lebanon, Kentucky BRIEF FOR APPELLEE DUANE
THOMPSON: Dustin W. Warren
Columbia, Kentucky