Opinion
NO. 2018-CA-001636-ME
09-13-2019
STEVE VALENCIA APPELLANT v. MICHELLE SHERRILL (FORMERLY PLANK); AND A.M.V., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Michael W. Bouldin Covington, Kentucky BRIEF FOR APPELLEE: Kelly S. Wiley Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 06-CI-02950 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. MAZE, JUDGE: Steve Valencia (Father) appeals from an order of the Kenton Family Court restricting him to supervised parenting time with his child and granting Michelle Sherrill (Mother) sole custody and decision-making authority with respect to the child. We find that Father has failed to preserve his evidentiary objections. We further conclude that the family court made sufficient findings on all relevant factors, that the family court's factual findings were supported by substantial evidence, and that the family court's modification of parenting time did not amount to an abuse of discretion. Hence, we affirm.
Father and Mother are the parents of A.M.V., who was born in April 2005. In 2006, Father filed a petition to establish custody and support of the child. On August 17, 2007, the family court entered an order granting joint custody of the child with equal parenting time.
This matter was initially filed in circuit court. In 2007, Kenton County adopted Family Court and this matter was transferred to Division V of that court. Hence, we shall refer to the trial court as "the family court."
However, the parties continued to have disputes over custody and visitation. In 2010, Mother moved for sole custody. On December 5, 2011, the trial court granted sole custody of A.M.V. to Mother but kept the equal parenting schedule. In 2012, Mother filed a motion to reduce Father's parenting time, which was denied. In 2015, Father moved for sole custody and Mother responded with a new motion to modify parenting time.
In an order entered on April 12, 2016, the family court denied both motions. However, the court noted the parties' lack of agreement over parenting the child. The court also noted that A.M.V. had recently been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Tourette syndrome and had been placed on medication for these conditions. Father disagreed with the diagnosis and with the course of treatment. In addition, the child had been recently expelled from school due to behavioral issues, specifically, inappropriately touching a child along with other misconduct. The court expressed concerns over Father's leniency with the child and his unwillingness to accept the medical diagnoses and treatment. Consequently, the court directed that Mother be permitted to make all medical and school decisions for the child as sole custodian. The court further directed that Mother shall keep Father informed about all such decisions, but Father shall not interfere with these decisions.
On July 18, 2017, Mother again moved to reduce Father's parenting time. She stated that A.M.V. recently reported he had sexually abused his half-brother. She also stated that Father permitted the child to play football over her objections. In addition, the child's therapist, Jennifer Thornton, reported that the child reported being permitted to access pornography during Father's parenting time. Thornton also reported that Father has been hostile to therapeutic services, including medication, to the point that he had been banned from her office.
The family court appointed a guardian ad litem (GAL) for the child. The court also entered orders directing that Thornton be deposed; that the GAL inspect all of the child's electronic devices; that neither party tamper with those devices; and that the GAL take any steps necessary to block adult content on the devices.
In her deposition, Thornton testified that she had been treating A.M.V. for several years. She provided details of the child's disclosures during treatment, including: that he was afraid of the dark and slept with a blanket and a light on; that he was afraid to shower alone and did not have to do so at Father's residence; that he slept with his Father during overnight visits because his bed there was inaccessible; that he could not tell the months of the year, the days of the week, or the time on a clock; that Father denied him anything to drink after being tackled at football practice; and that he fears making Father angry. A.M.V. also disclosed to Thornton that he continued to access adult content at his Father's because there was no blocking software or supervision, and that he knew how to prevent the GAL from discovering his continued viewing of pornography. And most significantly, A.M.V. told Thornton that thinking about a pornographic video he watched led him to sexually assault his younger half-brother. Medical and school records showed that A.M.V. continued to get poor grades and have behavioral issues, and he had been suspended from sports eligibility due to grades and poor attitude.
Thornton opined that the lack of consistency between the two households impeded A.M.V.'s success. She stated that Mother understands the importance of the child's medication, therapy, home and school support, but Father did not. Thornton further testified that Father does not believe that A.M.V. needs therapy or medication. Father was also in denial of the child's diagnosis of ADHD and his need for therapy medication. Thornton stated that Father has been confrontational with her and with the child's treating psychiatrist, Dr. Michael McIntosh. After Father was banned from Thornton's office, he continued to leave messages via voice mail and written notes under the door. In light of all these circumstances, Thornton recommended that Father's contact with the child be limited.
At the evidentiary hearing, Father stated that he did not believe that the child had any serious issues and stated that he had "good grades." Father disagreed with the diagnoses of ADHD and Tourette syndrome, and disparaged the treatment by Thornton and Dr. McIntosh. He also stated that he does not believe A.M.V. needs therapy or medication.
On August 22, 2018, the family court entered findings of fact, conclusions of law and an order granting Mother's motion to limit Father's parenting time. The court ordered that Mother shall remain the sole custodian of the child, with full responsibility for all decision-making for the child. The court directed that Father's parenting time be supervised and limited to up to three hours at a time with no overnight visits. The court also ordered that the child shall have no electronic devices while visiting with Father.
Father filed a motion to alter, amend, or vacate pursuant to CR 59.05. Father specifically asked for clarification as to the frequency of his parenting time. He also requested that the court eliminate the supervision requirement or that it allow his mother to supervise the visits. In an order entered on October 4, 2018, the family court stated that Father shall exercise supervised parenting time "at least two times per week, one time on the weekend and one time during the week." The court denied Father's request to allow his mother to supervise the visits, stating that the parenting time shall be supervised by a person acceptable to the GAL and Mother. Father now appeals from this order.
Kentucky Rules of Civil Procedure.
Father argues that there was insufficient admissible evidence to justify such a drastic restriction of his parenting time. Specifically, he argues that the trial court improperly relied on hearsay statements in Thornton's deposition. He further argues that Thornton was never qualified as an expert witness in this case. Consequently, Father contends that the trial court erred by incorporating Thornton's opinions and testimony into its findings. In the absence of such evidence, Father maintains that there was no evidence to support a finding that unrestricted visitation would seriously endanger the child's physical, mental, moral, or emotional health.
As an initial matter, we emphasize an appellant's brief must include "ample supportive references to the record and citations of authority pertinent to each issue of law and which shall 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." CR 76.12(c)(v). Father's brief only includes citations to counsel's objections during Thornton's deposition. However, those objections were merely general in nature and did not state any grounds. See CR 30.02(4) & CR 32.02. See also Hashmi v. Kelly, 379 S.W.3d 108, 113 (Ky. 2012).
Furthermore, Father's brief does not include citations to the record where his counsel identified specific objections to the record or requested rulings from the family court. CR 76.12(c)(v). Likewise, his brief does not identify specific grounds for the exclusion of Thornton's entire deposition or particular testimony. It is not the role of this court to flesh out arguments on appeal. In addition, we are not obligated to scour the record to find evidence in support of an appellant's argument, Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006), or to determine how an issue is preserved for review. Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). Under the circumstances, we cannot find that Father preserved any objection to Thornton's qualifications to testify as an expert witness or to specific matters contained in her deposition.
The central issue on appeal is whether there was substantial evidence to support the trial court's restriction of Father's parenting time with A.M.V. Father focuses on the recent amendments to KRS 403.270(2) and KRS 403.340(6), which establish a presumption in favor of joint custody with equally shared parenting time. He also notes that KRS 403.320(1) provides that "[a] parent not granted custody of the child . . . 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." Similarly, KRS 403.320(3) provides that:
Kentucky Revised Statutes.
These amendments became effective on July 14, 2018. 2018 Ky. Acts ch. 198, §§ 1, 4. Although Mother's motion to modify custody was filed before the statutes' effective date, the matter was submitted to the family court after the effective date. Consequently, the presumptions are applicable to the current case. --------
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.
KRS 403.340(4) sets out the factors which a court must consider in determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, including, but not limited to:
a) The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child's best interests;
(b) The mental and physical health of all individuals involved;
(c) Repeated or substantial failure, without good cause as specified in KRS 403.240, of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support;
(d) If domestic violence and abuse, as defined in KRS 403.720, is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents.
Although the family court did not specifically reference these factors, it made extensive factual findings concerning the disputes between the parents and their effect on the child. Most notably, the court found that Father has been unwilling to accept A.M.V.'s medical, educational, or disciplinary needs and the child has suffered and acted out as a result. The family court also found that Father has been unwilling to cooperate with prior custody orders regarding Mother's right to make educational or medical decisions for A.M.V. In addition, Father has been in denial about A.M.V.'s behavioral issues, and consequently, has been unwilling to fully implement the court's directives concerning the child's use of electronic devices during his parenting time. Under the circumstances, we conclude that the family court's findings adequately address all relevant factors in determining whether the current parenting schedule will seriously endanger A.M.V's physical, mental, moral, or emotional health.
Most of Father's argument concerns the weight which the trial court gave to Thornton's deposition. It is within the province of the trial court as the fact-finder to determine the credibility of the witnesses and the weight given to the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). See also CR 52.01. Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). Consequently, the test for review of a decision in a child custody case is whether the family court's findings were clearly erroneous or amounted to an abuse of discretion. Id. Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Abuse of discretion occurs when a court's decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
As Father correctly notes, the legislature has adopted a strong presumption in favor of joint custody and equal parenting time in both the establishment and modification of any custody order. However, the focus of the statutes always remains upon the best interests of the child. In this case, there was substantial evidence supporting the family court's decision to restrict Father's parenting time.
Indeed, the family court correctly expressed deep concerns that A.M.V's behavior is approaching a point of no return and that Father is unable or unwilling to accept the gravity of the situation. We likewise share these concerns. Apart from Thornton's testimony, A.M.V.'s school and medical records clearly identify the child's educational and disciplinary issues. The GAL confirmed that Father could not or would not monitor A.M.V.'s use of the internet; and Father's own testimony and conduct confirmed his unwillingness to accept the facts regarding the child. Consequently, we must conclude that the family court did not clearly err or abuse its discretion by restricting Father to supervised parenting time.
Accordingly, we affirm the order of the Kenton Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Michael W. Bouldin
Covington, Kentucky BRIEF FOR APPELLEE: Kelly S. Wiley
Covington, Kentucky