Opinion
NO. 2016-CA-000950-ME
05-05-2017
GREGORY S. WOOD APPELLANT v. SARAH A. WOOD, NANCI M. HOUSE, AND BROOKE BOWMAN APPELLEES
BRIEF FOR APPELLANT Louis I. Waterman Prospect, Kentucky Megan P. Keane Prospect, Kentucky Allison S. Russell Prospect, Kentucky R. Nicole Iuliano Lexington, Kentucky BRIEF FOR APPELLEE Nanci M. House Winchester, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT, FAMILY COURT DIVISION III
HONORABLE NORA J. SHEPARD, JUDGE
ACTION NO. 11-CI-00541 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. KRAMER, CHIEF JUDGE: Greg Wood appeals from the June 1, 2016 final judgment of the Madison Family Court in which the court awarded Sarah Wood sole custody of the parties' two minor children, denied his motion to prohibit Sarah's relocation with the children, and ordered him to pay all of the expert's fees, Guardian Ad Litem fees (GAL) and Sarah's attorney's fees. On appeal, Greg argues that the family court erred by: (1) ignoring the expert testimony of Dr. David Feinberg while awarding Sarah sole custody of the children; (2) waiting approximately ten months to enter a final and appealable order; (3) not holding an evidentiary hearing in Sarah's petition for relocation; and (4) ordering Greg to pay all the aforementioned fees.
After careful review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Greg and Sarah Wood were married on March 3, 2000, and divorced by Decree of Dissolution of Marriage entered by the Madison Family Court on November 19, 2012. There were two minor children born of the marriage, namely A.E.W and L.G.W. Sarah requested she be awarded sole custody of the children at the time of their divorce. However, after a lengthy final hearing, Sarah and Greg were awarded joint custody of the children.
The parties' separation, divorce, and subsequent custody battle has been tumultuous and highly contentious. Prior to filing for divorce, on June 8, 2011, an Emergency Protective Order (EPO) was entered on behalf of Sarah against Greg. On June 29, 2011, the EPO was converted to a year-long Domestic Violence Order (DVO). On August 13, 2013, after the divorce was final, another EPO was issued against Greg. After an August 28, 2013 hearing, a DVO lasting three years was entered prohibiting Greg from having any contact with Sarah and ordering him to stay at least 500 feet away from her. An order extending the entry of the second DVO was entered before its expiration date. Greg did not appeal the entry of either DVO.
Sarah moved to modify custody and timesharing on March 13, 2014. In her motion, Sarah informed the court that circumstances had changed, that the children were in physical, mental, and emotional danger with Greg and that it was best for the children that she have sole custody. A protracted custody battle commenced. On July 23, 2015, and July 24, 2015, a final hearing was held before the family court regarding Sarah's motion to modify custody. The family court heard testimony from the parties and numerous witnesses. The depositions of several other witnesses had previously been taken and were filed in the record. At the hearing, witnesses primarily testified in regards to Greg's alleged stalking and harassing behavior, as well as his relationship with the children. At the close of the evidence, the family court awarded Sarah sole custody; ordered Greg to pay all attorney's fees; and mandated his visitation be supervised at a third party facility. The family court expressed that it would be unwilling to entertain a change in this arrangement until Greg submitted to extensive cognitive behavioral therapy. Because of the length of the hearing and volume of the testimony, further facts established at the hearing will be developed as required to address the specific issues presented.
This Court has carefully watched the entirety of the final hearing, which lasted approximately sixteen hours. On July 23, 2015, the hearing lasted from approximately nine o'clock in the morning, until well past midnight. The following morning on July 24, 2015, the family court heard testimony from one rebuttal witness and laid out its ruling and rationale.
On August 20, 2015, Greg appealed from the docket sheet entered the day of the final hearing. However, this Court entered an order on November 21, 2015, dismissing the appeal "for failing to appeal from a final and appealable order." During the pendency of this premature appeal, additional events occurred requiring the family court to consider additional evidence and testimony.
The litigation continued in the family court with a September 10, 2015 motion filed by the GAL seeking clarification of the timesharing order. Specifically, because of the "cyber-stalking" tactics Greg employed in the past, via the children's electronic devices, the GAL expressed concern over continued contact by Greg with the children via cellular telephone calls, text, and social media. Sarah filed a response thereto on September 18, 2015, which divulged that the Cabinet for Health and Family Services ("Cabinet") had become involved in this action. The Cabinet was investigating allegations of sexual abuse made against Greg. Attached to Sarah's response was a Cabinet-issued prevention plan, executed on September 14, 2015, that prohibited all contact between Greg and the children. After hearing from the GAL and counsel for the parties on September 21, 2015, the family court ruled that Greg is prohibited from any contact with the children, including cellular telephone calls and text messages because he had repeatedly used the children as a means of securing information so that he can continue to stalk and harass Sarah.
On November 16, 2015, Greg moved to reinstate supervised visitation and commence reunification therapy between himself and the children. His affidavit indicated that he had never commenced visitation with the children at a third-party facility following the July 2015 hearing. Greg's motion also stated that the Cabinet's investigation was still ongoing. The family court passed Greg's motion generally on December 7, 2015, due to the pending Cabinet and Kentucky State Police investigations regarding the allegations of abuse by Greg and because the court did not have sufficient information to rule upon the motion or alter the Cabinet's prevention plan.
On March 2, 2016, Greg again moved to reinstate supervised timesharing and to commence reunification therapy. His motion indicated that the Cabinet investigation was still ongoing and that the prevention plan prohibiting contact between him and the children was still in place.
On March 16, 2016, Sarah filed a notice of relocation. She redacted the address due to the active DVO between her and Greg. Greg subsequently moved the family court to prohibit Sarah from relocating. The family court ordered a case management conference to be scheduled on April 11, 2016, and further ordered counsel for the parties to issue subpoenas to the relevant social workers so that the court could determine the status of the Cabinet's investigation.
At the ensuing case management conference a social worker with the Cabinet testified that for the past several months the Cabinet had been investigating allegations of sexual abuse made against Greg. Ultimately, the Cabinet did not substantiate this allegation, but did substantiate the risk of sexual abuse. When asked what the next step of the investigation was, the social worker indicated the Cabinet planned to issue an "after care" plan. This plan would recommend that the children only have contact with Greg at their discretion due to their ages and their stated fear of their father. After hearing this testimony, the family court deemed it necessary to hear from the therapists involved in this matter and scheduled another case management conference for that purpose.
The conference was held on May 9, 2016, and the only two witnesses were Greg's therapist, Matthew Roberts, and the children's therapists, Brian McDonald. Mr. Roberts began performing cognitive behavioral therapy, as suggested by the family court, with Greg on December 29, 2015. According to Mr. Roberts, Greg had made some progress seeing things from the children's perspective and was more cognizant of the children's perception of him. However, he also testified to some troubling behavior that Greg was still demonstrating. Mr. Roberts' treatment notes indicated that Greg spent much of his time in therapy denying domestic violence or stalking, analyzing the court proceedings, and discussing how wrong he believes the family court is. Also, in one of his therapy sessions, Greg reported knowledge of where Sarah planned to relocate, despite the fact that she redacted her new address from her notices of relocation and took several other measures to keep this information away from him.
The children's therapist, Mr. McDonald, has been treating both children since July 2014. He testified regarding the improvements made by the children since July 2015 when they no longer had contact with Greg. Specifically, he stated the children's stress and anxiety has decreased significantly since that time. Mr. McDonald stated that A.E.W. has a post-traumatic stress disorder diagnosis due to witnessing domestic violence and abuse between her parents. Stemming from the stress and anxiety from this entire process, she has experienced debilitating panic attacks. Mr. McDonald stated that forced visitation or contact of any type between A.E.W. and Greg would be detrimental and cause her serious emotional harm.
Mr. McDonald testified that L.G.W. has been diagnosed with adjustment disorder and anxiety. L.G.W. wishes to contact Greg in writing via text or email; however, L.G.W. desires to initiate the contact and does not want unsolicited contact from his father. Mr. McDonald recommended that this written contact be supervised by someone other than Sarah, due to the domestic violence and stalking history between Sarah and Greg. Lastly, he testified that reunification therapy, between Greg and the children, would not be appropriate at that time.
Three weeks later, on June 1, 2016, the family court issued its findings of fact and conclusions of law, approximately ten and one-half months following the July 2015 hearing. In addition to issuing its formal ruling with respect to the July 2015 hearing, the family court issued its rulings: (1) denying the motion to reinstate supervised visitation and reunification therapy; (2) denying the motion to prohibit relocation; and (3) granting the motion to suspend Greg's visitation.
Greg appeals from this June 1, 2016 final order.
II. STANDARD OF REVIEW
Child custody awards are reviewed for an abuse of discretion. Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008). "Thus, in reviewing the decision of the family court, 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." Id. (Internal citation omitted). Because the family court is in the best position to judge the credibility of the evidence, we will not substitute our opinion for that of the family court with regard to the weight given to certain evidence, including the testimony of witnesses. CR 52.01; B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
Kentucky Rule of Civil Procedure.
III. ANALYSIS
Greg first contends the family court erred "when it ignored the credible expert testimony of Dr. David Feinberg." In other words, Greg is arguing that the family court abused its discretion when it awarded Sarah sole custody of the children because Dr. Feinberg's custodial evaluation recommended maintaining the status quo of joint custody.
Dr. Feinberg thoroughly evaluated Sarah, Greg, and both children. He spent approximately four hours with each parent and had two individual meetings with each of the children, once when accompanied by Sarah and once when accompanied by Greg. During these sessions, he performed several of the psychological evaluation tests he customarily employs in custody disputes. After recommending that each of the parties participate in extensive individual therapy and therapy with the children, Dr. Feinberg specifically recommended, in regard to the custody arrangement, "that Greg and Sarah continue to share joint custody with [the children]. It is not recommended that Greg's timesharing be supervised at this time. If Greg continues to engage in harassing and intimidating behaviors, supervised visitation might need to be considered."
As the fact-finder in the case sub judice, the family court had the sole responsibility to weigh the probative value and credibility of the evidence and to choose which evidence it found most convincing. Reichle v. Reichle, 719 S.W.2d 442, 444-45 (Ky. 1986). This also applied to Dr. Feinberg's testimony, report, and recommendations. The family court carefully considered his report and found his final recommendations unpersuasive, stating that "[his] ultimate recommendation regarding custody and timesharing is belied by many of his other findings regarding Greg and Greg's behavior." The family court's rationale to depart from his ultimate recommendation is summarized in its final order as follows:
The Court so finds that Greg's harassment and intimidation of Sarah has continued almost unabated since their separation. . . . Dr. Feinberg's written report is replete with examples of Greg's over-the-top, intrusive, and intimidating behavior. Dr. Feinberg's report and deposition testimony confirm that Sarah's fear of Greg is real and is justified by Greg's continuous behavior. Therefore, it is abundantly clear that the best interest of these children will be served by limiting their exposure to Greg's odd and damaging behavior . . . .
This was entirely within the family court's discretion as it was not bound to accept any testimony from any witness as the truth, including Dr. Feinberg's.
Now that it is clear that the family court took Dr. Feinberg's evaluation into consideration, we must determine if the family court otherwise abused its discretion when it awarded Sarah sole custody of the children. KRS 403.340 sets forth the standard for modification of a custody decree. A custody decree may be modified only if it is found that a change of circumstances has occurred in regard to the child or the custodian, and modification is necessary to serve the child's best interest. KRS 403.340(3). In determining whether a change has occurred and whether modification is in the child's best interest, the court must consider a variety of factors, including the best interest factors in KRS 403.270 and "whether the child's present environment endangers seriously [their] physical, mental, moral, or emotional health." Id.
Kentucky Revised Statute.
KRS 403.340(4) states:
In determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to:
(a) The interaction and interrelationship of the child with his parent or parents . . . ;
(b) The mental . . . health of all individuals involved;
(c) Repeated or substantial failure, without good cause . . . of either parent to observe visitation, child support, or other provisions of the decree . . . ;
(d) [T]he extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents.
The record is replete with additional evidence to support the finding that awarding Sarah sole custody is in the best interest of the children. A portion of this additional evidence is best summarized in the family court's well-reasoned final order:
The modification standard has been met in this action and it is in the best interest of these children that Sarah act as their sole custodian. If it were ever truly possible for these parties to act as joint custodians, it has clearly become impossible for them to continue to act as joint custodians. The presence of domestic violence and the stalking of Sarah by Greg justify modification to sole custody. Moreover, these parties simply cannot make joint decisions regarding the children. Every possible issue between these parties has been treated like an opportunity to "go to war" by Greg. One child's orthodontia treatment was delayed for . . . almost a year. Medical bill reimbursement has been delayed . . . many months. Even the smallest medical charge will cause Greg to expend many hours making phone calls or visiting provider offices unannounced to try to undermine whether or not it is truly owed. Even "snow days" are a point of contention between the parties. Despite the continuing acrimony between these parties, the children's needs must be continuously met, and they must be free from the worry that every issue involving them, great or small, every doctor's appointment, every school event, is going to be a source of contention between their parents. It is clearly in these children's best interest to allow their mother to assume sole authority and decision-making on their behalf.
Considering the family court's position to judge the credibility of the evidence, we cannot conclude it abused its discretion when it determined that awarding Sarah sole custody was in the best interest of the children.
Greg next argues that the June 1, 2016 order "must be reversed and remanded" because the family court delayed approximately ten months after the close of the July 24, 2015 hearing to enter a final and appealable order awarding Sarah sole custody. He cites Canon 3B(8) of SCR 4.3, the Kentucky Code of Judicial Conduct, which states, "[a] judge shall dispose of all judicial matters, promptly, efficiently and fairly." Given the history of this case and the events that transpired following the July 2015 hearing, we cannot conclude that this delay amounts to reversible error. The final hearing lasted approximately sixteen hours, going well past midnight the night of July 23, 2015. At the hearing the parties presented nearly twenty witnesses and filed five voluminous depositions in lieu of testimony. The family court judge indicated the reason the hearing went past midnight was because the court's docket was "booked solid" for several months. Couple these impediments with the number of post-hearing motions filed by the parties, and the Cabinet's lengthy investigation of sexual abuse, it is not difficult to understand the delay in preparing a final order. The forty-seven page July 1, 2016 final order was thorough and well reasoned. The court not only summarized the facts and ruling from the July 2015 final hearing, it also addressed all remaining issues between the parties in the order. For these reasons, the ten-month gap between the final hearing and the final order does not warrant reversal.
Supreme Court Rules of Kentucky.
Greg's next assignment of error is that the family court erred "when it did not hold an evidentiary hearing on Sarah's petition for relocation and motion to suspend Greg's parenting time." Greg argues that the family court was required by law to make a judicial finding that relocation was in the children's best interest. However, the family court did just that when it stated in its June 1, 2016 final order that:
Greg's motion to prohibit relocation is overruled. Sarah is the sole custodian of the parties' children and may relocate with them at her discretion. According to Mr. McDonald, the children desire to relocate and are excited about the move. Considering the entire history of this matter, including many years of domestic violence and stalking on the part of Greg, Sarah's planned relocation is in the children's best interest.(Emphasis added).
Citing N.B. v. C.H., 351 S.W.3d 214 (Ky. App. 2011), Greg further argues that the above finding is insufficient because N.B. mandates a separate relocation hearing, with full opportunity for cross examination. N.B. is an extension of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). In the portion of Pennington relevant to this case, the Kentucky Supreme Court held that when joint custodians disagree about the relocation of the child at issue, the family court must conduct a hearing to evaluate the circumstances and resolve the issue according to the child's best interest. Id. at 768-69; see also N.B., 351 S.W.3d at 222.
At the time of Sarah's petition for relocation and Greg's motion to prohibit relocation, Sarah was the children's sole custodian. Sole custody permits the custodial parent to unilaterally make decisions concerning the child unless the family court finds that a specific limitation of the custodian's authority is necessary to prevent the child's physical health from being endangered or the child's emotional development being significantly impaired. KRS 403.330(1); Wilhelm v. Wilhelm, 504 S.W.2d 699 (Ky. 1973), overruled on other grounds by Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001); Klopp v. Klopp, 763 S.W.2d 663 (Ky. App. 1988). According to FCRPP 7(2)(B), before a sole custodian seeks to relocate, written notice must be filed with the court and served on the non-custodial parent. Sarah fulfilled this procedural requirement with her March 16, 2016 notice of relocation. Therefore, with her status as sole custodian, Sarah was free to relocate with the children unless the family court expressly limited her authority to do so. Here, the family court agreed that "Sarah's planned relocation is in the children's best interest."
Kentucky Family Court Rules of Procedure and Practice. --------
Greg's remaining argument is that the family court erred when it ordered him to pay all of the expert fees, all of the GAL fees, and all of Sarah's attorney's fees and costs. Attorney fees may be awarded to a party pursuant to KRS 403.220. Expert witness fees may also be awarded pursuant to that statute. See Culver v. Culver, 572 S.W.2d 617, 622 (Ky. App. 1978). The statute states that the court should consider "the financial resources of both parties [.]" KRS 403.220. An award of fees is reviewed by this court under an abuse of discretion standard. Neidlinger, 52 S.W.3d at 520.
When determining an award of attorney's fees, "[a]ll that is expressly required is that the [family] court consider the financial resources of the parties when ordering a party to pay a reasonable amount in attorney's fees." Poe v. Poe, 711 S.W.2d 849, 852 (Ky. App. 1986). The record contains tax returns, paystubs, bank accounts, and other financial documents of both parties for several years prior to the order. The family court reviewed this information and decided that "[t]here is a gross disparity between the parties' incomes. Sarah . . . earned $48,085.00 in 2014. By comparison, Greg earned over $9,700 per month in 2013." Furthermore, both parties argue that the other is responsible for the extensive litigation that has taken place. It is Greg's view that "[t]he litigation was contentious, primarily due to the unreasonable demands and character assassination techniques employed by Sarah throughout the underlying proceedings." It is Sarah's view that "Greg's conduct and tactics, which have wasted the time of the Court and of counsel, should be considered." The family court "is in the best position to observe conduct and tactics which waste the court's and attorneys' time and must be given wide latitude to . . . discourage such conduct." Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990). Given the circumstances surrounding this case, we cannot conclude that the family court abused its discretion when it reasoned that "[d]ue to the gross disparity in the parties' income and because all of Sarah's motions since the entry of the Decree were necessitated by wrongful action on the part of Greg, Greg should pay all of the costs associated with the present motions."
IV. CONCLUSION
In light of the foregoing the decision of the Madison County Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT Louis I. Waterman
Prospect, Kentucky Megan P. Keane
Prospect, Kentucky Allison S. Russell
Prospect, Kentucky R. Nicole Iuliano
Lexington, Kentucky BRIEF FOR APPELLEE Nanci M. House
Winchester, Kentucky