A.G. v. T.B.

452 S.W.3d 141, 2014 Ky. App. LEXIS 162, 2014 WL 5305473
CourtCourt of Appeals of Kentucky
DecidedOctober 17, 2014
DocketNo. 2013-CA-001685-ME
StatusPublished
Cited by2 cases

This text of 452 S.W.3d 141 (A.G. v. T.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.G. v. T.B., 452 S.W.3d 141, 2014 Ky. App. LEXIS 162, 2014 WL 5305473 (Ky. Ct. App. 2014).

Opinion

OPINION

VANMETER, Judge:

A.G. (mother) appeals pro se from the August 28, 2013, order of the Jefferson Circuit Court denying her motion to alter, amend or vacate the court’s July 30, 2013, order which granted the motion of T.B. (father) to modify visitation/timesharing and to prohibit mother from relocating to Mississippi with their two minor children, K.B. and A.B. For the following reasons, we affirm.

Mother and father divorced in 2004 and received joint custody, of their children, with mother designated as primary resi[143]*143dential parent. A great deal of litigation has occurred since 2002 when this case was filed. The parties have a very strained relationship and, along with this case, have been involved in domestic violence cases and dependency, neglect, and abuse cases.

In 2009, the circuit court modified the parties’ parenting schedule to allow mother to relocate to Mississippi with the children. Mother moved to Mississippi with the children in November 2009, but “temporarily” returned to Kentucky in September 2010. At that time, the circuit court modified the parenting schedule due to mother’s temporary return to Kentucky, and acknowledged her standing permission to relocate back to Mississippi.

In January 2018, mother filed a notice of intent to relocate back to Mississippi, to which father objected. Father filed a motion to modify visitation to allow the children to reside with him the majority of the time and sought to prohibit mother from relocating with the children. The court scheduled the matter for a hearing and, pending the hearing, entered a temporary emergency order modifying the parenting schedule to expand father’s visitation time with the children. The court’s decision to temporarily modify visitation was based on the recommendations of the Guardian Ad Litem (GAL), the Parenting Coordinator, and the children’s therapist.

At the start of the scheduled hearing, mother moved to dismiss father’s motion on grounds that it should be treated as a motion to modify custody and, in that respect, was statutorily deficient since no supporting affidavits accompanied it. The court denied her motion, citing the legal distinction between custody and visitation, and chose to treat father’s motion as one to modify visitation. The parties then agreed to waive all hearsay objections to out-of-court statements made by the children and to allow other witnesses to testify to statements the children had made to them, in lieu of calling the children as witnesses. Though an unusual arrangement, the court accepted it in order to prevent the children from having to testify.

During the hearing, the court heard testimony from mother and father, a clinical psychologist who had evaluated mother, the children’s therapist, K.B.’s school counselor, mother’s current husband, mother’s mother, and three neighbors of mother. The court also took into consideration the reports submitted by the GAL and the Parenting Coordinator. After considering all the evidence presented and applying the factors set forth in KRS1 408.270(2), the court concluded that it was in the children’s best interests to modify visitation so as to allow them to remain in the Louisville area and primarily reside with father. Mother filed a motion to alter, amend or vacate, which the court denied. Mother now appeals.

On appeal, mother argues the court’s decision was an abuse of its discretion and claims the court ignored evidence and misapplied the law. We disagree.

As an initial matter, we note that father did not file a brief with this court. Upon a party’s failure to file an appellate brief within the time allowed, this court may: “(i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.” CR2 76.12(8)(c). The exercise of [144]*144these options is within this court’s discretion. Given the importance of parenting time with children, we decline to summarily revez’se without considering the merits of this case. Similarly, we are not comfortable simply accepting mother’s statement of the facts as correct. Instead, we have elected to review the record and, based on our review, have determined that mother’s brief does not reasonably sustain a reversal of the circuit court’s order.

A joint custody arrangement is defined as both parents’ having the “rights, privileges, and responsibilities associated with parenting” and an expectation that they “consult and participate equally in the child’s upbringing.” Pennington v. Marcum, 266 S.W.3d 759, 764 (Ky.2008). A custody determination is separate from parenting time, which is the amount of time a child spends with each parent. Id. at 767. A modification of parenting time, even one that changes the primary residence of a child, does not alter a joint custody arrangement. Id. at 768-69.

A parent seeking to prevent a child’s relocation with the other parent, but who does not wish to change custody, may bring a motion to modify visitation/timesharing. Id. at 770. If the motion is to simply change the parenting schedule, and not custody, the court must apply the standard set forth in KRS 403.320. Id. at 769. Pursuant to KRS 403.320(3), the court may modify visitation whenever doing so is in the best interests of the child. In determining the best interests of the child, the court must consider all relevant factors, including the wishes of the child’s parents; the wishes of the child as to his custodian; the interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests; the child’s adjustment to his home, school, and community; the mental and physical health of all individuals involved. KRS 403.270(2).

A circuit court’s decision to modify visitation is reviewed for an abuse of discretion. Pennington, 266 S.W.3d at 769. And “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” CR 52.01. See also Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116, 118 (Ky.1991) (“[i]t is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence.”).

First, mother asserts the circuit court lacked jurisdiction to consider father’s motion since the motion should have been treated as a motion to modify custody, which requires two affidavits to be submitted in support. We have reviewed the record and believe the court correctly treated father’s motion as one to modify visitation; thus, the court retained jurisdiction to address it.

The gist of mother’s remaining arguments is that the court’s decision was unfair, unreasonable, and incorrect.

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Cite This Page — Counsel Stack

Bluebook (online)
452 S.W.3d 141, 2014 Ky. App. LEXIS 162, 2014 WL 5305473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ag-v-tb-kyctapp-2014.