Brooks v. Byrd

487 S.W.3d 913, 2016 WL 1534692, 2016 Ky. App. LEXIS 51
CourtCourt of Appeals of Kentucky
DecidedApril 15, 2016
DocketNO. 2015-CA-000464-ME
StatusPublished
Cited by6 cases

This text of 487 S.W.3d 913 (Brooks v. Byrd) 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
Brooks v. Byrd, 487 S.W.3d 913, 2016 WL 1534692, 2016 Ky. App. LEXIS 51 (Ky. Ct. App. 2016).

Opinion

OPINION AND ORDER

NICKELL, JUDGE:

Laura Beth Brooks, the biological mother of two girls — one born in 2002 and the other in 2009 — appeals the Madison Circuit Court’s award of sole custody to- Hugh Junior Byrd, II, the girls’ biological father. Brooks alleges the trial court’s award lacked evidentiary support, failed to discuss statutory factors governing custody, and in denying Brooks’ request for joint custody, constituted an abuse of discretion. Upon review of the record, the briefs and the law, we dismiss the appeal due to noncompliance with CR 73.02(l)(e).

FACTS

To put this case into context, Brooks and Byrd met in Florida in February 2002. Though they never married, they lived together for thirteen years — much of it in Berea, Kentucky — -where, their two daughters .have spent most of their lives. Brooks’ relationship with ■ Byrd soured. They separated in June 2014, but made no decision about where the girls would live.

A month later, in July 2014, Brooks went to Florida, ostensibly to care for her ailing grandfather who was receiving dialysis and had no local caregiver. In reality, she took the girls with her to Winter Haven, Florida, and all three moved in with Gary Melton — an ex-boyfriend with a criminal record whom the girls had never met.

Qn August 4, 2014, Byrd traveled to Florida to visit. his daughters — a visit Brooks welcomed. Upon learning Brooks and his minor daughters were living with Melton, Byrd brought the girls back to Berea and on August 22, 2014, petitioned for sole custody and child support. Brooks filed a verified response coupled with a counterclaim seeking sole custody and child support. Other than these initial pleadings, child support was not mentioned again, nor was it awarded by the court.

At some point, Brooks moved from Florida to Corydon, Indiana, to live with her parents. ' Melton accompanied Brooks to Indiana.

An agreed order on temporary matters was executed giving Byrd temporary sole custody of the girls in his Berea home and allowing Brooks weekend visitation. Other terms prohibited the girls- from being around Melton or Byrd’s sixteen-year-old son unless supervised; made Brooks responsible for all transportation costs related to visitation — a roundtrip to and from Indiana each weekend — and. the girls were barred from traveling to Florida. The [915]*915agreed order was drafted by counsel for Byrd. Counsel for Brooks signed the proposed order as having “seen” it,, .but neither parent signed the document, which the trial court entered on September 22, 2014.

An attempt at mediation — described during a case management conference as a “disaster” by Byrd’s attorney — resolved the holiday schedule and honed unresolved issues to a single question — who would be named primary custodian, with both parents appearing to want to share joint custody. By December 2014, Brooks had broken up with Melton and evinced no intention to return to Florida.

The case was set for trial on February 5, 2015. Before testimony began, counsel for Brooks stated her client had received text messages from the oldest girl causing Brooks to fear the child might harm herself. The court stated it would hear the other witnesses, review the texts, and then determine whether interviewing the child would be helpful.

Proof began with Byrd testifying in his own behalf. He stated he was a long-term employee of Evans Tree Service, but had been disabled since 2010 when he was diagnosed with a cancerous tumor. After undergoing major surgery, he was told it was a permanent condition that would not improve. Six people live in Byrd’s home— himself, the two girls at the heart of this •appeal, his two sons — one nineteen and the other sixteen — and a granddaughter from his first marriage. He testified he supports his family with Social Security Disability income and food stamps.

Byrd testified: he takes the girls to and from doctor appointments; he identified by name their doctors, and the clinic at which they practice; the girls are current on immunizations; the girls went to the eye doctor in October and he purchased glasses for the oldest one; and, after dental checkups, • the oldest girl now wears braces. The oldest girl is a fifth grader and the younger girl just started kindergarten; he identified their schools by name and testified the older girl does “real well” in school and he helps her with homework.: lie drives them to school each morning and they ride the bus home each afternoon.

Byrd introduced photos of his home and family members. Each girl has a bedroom (the younger one shares a room with the granddaughter) and lots of toys. There is a puppy in the household and both girls know their neighbors and have friends. Byrd stated he has volunteered to pick up the girls after visitation in Indiana a couple of times. He does not believe Brooks is employed. He testified he cooks and cleans; has a support system (his sister comes to the home daily and his sister-in-law visits often and helps watch the children); and, he believes both girls are well-adjusted. He would like his daughters to remain in Berea with their friends, schools and doctors, but he would like to share the girls with Brooks.

In response to questioning by the court, Byrd, stated he has a good relationship with both sons. His oldest boy, now nineteen, was.born prematurely and has the mind of a ten-year-old. He suffers from schizophrenia and is quiet. Byrd does not believe the boy would harm anyone and said he is often .away from the family home.

Byrd’s sixteen-year-old son is a baseball player who suffers from ADHD and oppositional defiance disorder. Byrd does not leave the children alone with his youngest son who once punched a hole in a wall in response to a telephone call. This child curses sometimes and Byrd takes away privileges to punish him for acting out. Both boys take prescribed medication.

[916]*916On cross-examination, Byrd testified the family eats out about-twice a week and confirmed he does not leave the girls alone with either of his sons. At one time, the oldest girl had an anxiety problem and missed a week of school — she now sees a school counselor and- the difficulty has been resolved. The youngest girl missed four or five days of school. At one point he considered home schooling both girls. He stated he has no reason to suspect the oldest girl might harm herself. He described his youngest daughter as “spoiled.” Finally, he acknowledged Brooks occasionally transported the girls' to doctor appointments and agreed meeting her halfway to hand off the girls for visitation would be fair.

Byrd’s younger sister, Sherry Jackson, testified next. A recent widow, she lives around the corner from her brother, visits the Byrd home daily, and helps with child care. She stated Byrd does it all — cooking, cleaning, washing — “more than I could do.” She testified Byrd is a good cook and provides a suitable home for the girls. On cross-examination, she said she had not witnessed outbursts by Byrd’s sons; believed Brooks suffers from depression; and has not really seen Brooks parent.

Ricky Abney, Byrd’s neighbor, testified he has known Byrd since 2006 or 2008; Byrd mows his yard. He recalled seeing Byrd walk both girls in their strollers and described Byrd as a good father. He stated he had been inside the Byrd home and had not witnessed outbursts by the boys. On cross-examination he acknowledged Brooks is a good mother.

Byrd’s sister-in-law, Delena Byrd, testified she has known Byrd more than two decades.

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487 S.W.3d 913, 2016 WL 1534692, 2016 Ky. App. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-byrd-kyctapp-2016.