RENDERED: AUGUST 27, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0276-MR
CLYDE MYROM KINGERY, JR. APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 15-CI-502055
KRISTA WOOLFORD APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Clyde Myrom Kingery, Jr. appeals from a Jefferson
Family Court judgment awarding sole custody of the parties’ minor child
(“Child”)1 to Krista Woolford. We affirm.
1 To protect the privacy of the parties’ minor child, we will not refer to the minor child by name but simply as “Child.” FACTS AND PROCEDURAL HISTORY
Kingery and Woolford were never married to each other, but they are
the parents of Child, born in November 2014. In May 2015, Kingery filed a
petition seeking sole custody of Child in family court. Over the next year, the
family court entered orders establishing parenting time schedules with each party
getting essentially equal parenting time. Kingery initially alleged that Woolford
was abusing alcohol. Woolford claims to have achieved and maintained sobriety
since July 2016.
The Jefferson Family Court set a September 2016 custody trial date.
But shortly before the scheduled trial date, the family court removed this case from
its trial docket because the parties failed to get an ordered assessment. The family
court noted that the parties stated they could not afford to pay for the assessment.
The family court entered an agreed order setting forth a new
temporary parenting schedule in early 2017, and the parties continued to litigate
various matters. The parties have not cited to, nor have we independently
discovered in the record, any previous court order formally ruling upon Kingery’s
petition for sole custody or explicitly setting forth that the parties had joint
custody. But the parties proceeded with the understanding that they had joint
custody and continued to exercise equal parenting time.
-2- Woolford moved to Georgetown, Indiana. Kingery remained in
Louisville. The parties had many conflicts about Child’s care.
As summarized in the judgment on appeal here, the family court tried
various interventions to assist the parties’ efforts to co-parent, but the parties’
inability or unwillingness to pay for certain interventions proved problematic:
In May 2016, the Court ordered the parties to utilize a visitation exchange center due to ongoing contentious interactions at exchanges. Mr. Kingery failed to pay the requisite fees, and the center closed the parties’ case.
In August 2017, the Court set aside its order for the parties to undergo an Issue Focused Assessment, which was designed to assist the Court in making a proper custody determination. Again, payment was an issue.
In February 2018, the Court appointed Ms. Russell Friend of the Court as a more cost-effective means of obtaining recommendations regarding custody and parenting time. The parties have cooperated with Ms. Russell, but Mr. Kingery has not paid her fees in a timely manner.
In February 2018, the Court also ordered the parties to communicate through Our Family Wizard (“OFW”) – a co-parenting website that documents all activity.[2]
2 For example, OFW provided automatic read receipts for messages sent through it according to trial testimony.
-3- (Record on appeal (“R.”), pp. 701-02.) Despite the family court’s interventions to
facilitate co-parenting, the parties continued to have significant conflicts about
Child’s care and were frequently back in court on contempt motions and the like.
Kingery alleged that Woolford was abusing alcohol again and that
Child’s older half-sibling from Woolford’s former marriage was violent and a
danger to Child. Kingery filed an emergency motion to suspend the current
visitation schedule in 2018, alleging that the older half-sibling had touched Child’s
genitals and that Child would have to go to foster care if Woolford continued to
have visitation due to a pending investigation in Indiana. The family court entered
an order providing that Woolford’s visitation with Child must be supervised.
A few weeks later, after the abuse allegations were determined to be
“unsubstantiated” by the Indiana Department of Child Services, the family court
vacated its order requiring that Woolford’s visitation be supervised. But it required
that the older half-sibling be supervised at all times during Woolford’s parenting
time. Woolford alleged that Kingery coached Child to allege abuse by her older
half-sibling, and the parties continued to have conflicts resulting in additional
litigation before the family court.
In August 2019, Woolford filed a motion requesting that the family
court modify legal custody of Child and grant her sole legal custody. Woolford
alleged that joint custody was unworkable and only created conflict because
-4- Kingery refused to communicate and made unilateral parenting decisions. She
requested an evidentiary hearing and attached a supporting affidavit.
In her affidavit, Woolford averred that she had sent Kingery messages
via OFW in May but these messages appeared unread as of mid-July. She also
averred that she had emailed Kingery about the possibility of enrolling Child in
preschool at a private school in Indiana located approximately halfway between
Woolford’s house and Kingery’s house. (An email attached to her affidavit
indicated Child could receive scholarships for future school years if she attended
preschool at the private school.) She averred that she was not asking Kingery to
contribute to the cost of Child’s attendance. She further averred that he did not
respond to her email, but simply sent her an email stating that he had already
enrolled Child in preschool elsewhere.
Woolford also averred that Kingery was making dangerous, unilateral
medical decisions for Child. Specifically, she averred that he had Child get some
vaccines without notifying her or consulting Woolford beforehand and had taken
Child to a different pediatrician who had not– to Woolford’s knowledge–
previously treated Child.
The family court set a trial date for a few months later. Before the
trial was held, Woolford filed an additional, verified motion seeking an order to
prohibit Kingery from making unilateral life decisions for Child. She alleged
-5- therein that Kingery acted as if he had sole custody by unilaterally changing
Child’s pediatrician and dentist to ones located nearer his home. The family court
granted Woolford’s motion and entered an order prohibiting Kingery from making
such unilateral life decisions.
Before the custody trial was held, the family court asked the Friend of
the Court (FOC) to prepare a report with recommendations for the family court’s
review. After meeting with the parties and counsel, the FOC filed a report
recommending that the parties continue to exercise joint custody with a parenting
coordinator to act as a tie-breaker when the parties could not agree on a particular
decision. The FOC found both parties to be fit parents who could make good
decisions but could not communicate effectively with each other, and she
discussed how their living in different states posed difficulties. If the family court
chose not to continue joint custody, she recommended that Woolford be awarded
sole legal custody based on her seeming more willing to provide information to
and seek input from Kingery. But the FOC recommended sole custody only if the
family court determined that a parenting coordinator could not assist the parties.
Woolford objected to the recommendation to continue joint custody
with the aid of a parenting coordinator. She alleged that Kingery had a history of
failing to pay for court-ordered assessments by professionals. Kingery did not
-6- object to using a parenting coordinator and indicated his desire for continued joint
custody at trial by stating he did not want either party to lose custody.3
Following the custody trial, the family court entered an order which
stated that the parties previously had joint legal custody under operation of law, but
which now awarded sole legal custody to Woolford. The order nonetheless made
clear that the parties would continue to have equal parenting time and that Kingery
would have access to Child’s records, caregivers, medical and dental providers,
and educators. But the family court found that joint custody had proved
unworkable in this case and that appointment of a parenting coordinator would not
be helpful. The family court determined it was in Child’s best interest for
Woolford to have sole legal custody and the final say in making major decisions.
Kingery filed a motion to alter, amend, or vacate pursuant to
Kentucky Rules of Civil Procedure (CR) 59.05. After a hearing, the family court
entered a written order denying his CR 59.05 motion. Kingery then filed a timely
appeal of the family court’s custody decision. Further facts will be provided as
needed.
3 From our review of the written record, Kingery apparently did not file written responses to Woolford’s motion requesting sole custody– styled as a motion for modification of custody– nor to her motion to prohibit him from making unilateral life decisions regarding Child. Although Kingery had originally sought sole custody when this case was first filed in Jefferson Family Court, there is no indication that he was still actively pursuing sole custody by the time of the early 2020 custody trial based on his testimony that he did not want either party to lose custody.
-7- STANDARD OF REVIEW
As an appellate court reviewing the family court’s child custody
decision, we must not focus on whether we would have made the same decision.
Instead, we consider whether the factual findings are supported by substantial
evidence, whether the correct law was applied, and whether the family court
abused its discretion– keeping in mind the family court’s unique opportunity to
weigh the evidence and assess the credibility of witnesses:
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. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court’s ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court’s decision is unreasonable or unfair. 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.
Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008).
Kingery alleges several errors4 by the family court in his brief. But
his brief fails to comply with CR 76.12(4)(c)(v)’s requirement that the argument
4 With the possible exception of his arguments that the family court erred in admitting or excluding evidence, Kingery does not argue that the family court failed to apply the correct law. Instead, his arguments involve claims of abuse of discretion and of error in factual findings. For example, he did not argue that the family court applied the wrong legal standard for determining
-8- portion of appellate briefs contain statements identifying whether and how issues
were preserved for review with supporting references to the record. Due to this
failure to comply with the rule, this Court would have the authority to strike all or
part of his brief or to review only for manifest injustice. Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010). Though we leniently elect instead to overlook
such errors and to review the case under our usual standard of review for child
custody decisions, we caution counsel to take greater care to comply with appellate
brief requirements. We direct counsel’s attention to the Basic Appellate Practice
Handbook at: https://kycourts.gov/Courts/Court-of-
Appeals/Documents/P56BasicAppellate PracticeHandbook.pdf. (Last visited Jun.
17, 2021).
ANALYSIS
The first error alleged by Kingery is that the family court did not
afford him a full, substantive hearing where he was provided sufficient time to
testify, present evidence, and cross-examine Woolford. We disagree.
The family court advised the parties at the trial’s beginning that it was
allowing one half day for testimony, beginning at about 8:30 A.M. and concluding
or modifying custody. See generally Kentucky Revised Statutes (KRS) 403.270, KRS 403.340. The family court noted an obligation to determine what was in the best interests of Child, with a rebuttable presumption that joint custody and equal parenting time is in a child’s best interest in its custody judgment.
-9- at noon, and that this should be ample time as the case was not particularly
complex. And the family court repeatedly advised the parties of the time limits for
the hearing and suggested that certain things be wrapped up at certain points to
permit all needed testimony within the stated hearing duration. For example, when
Woolford’s testimony extended past 10:00 A.M. yet the FOC and Kingery had yet
to testify, the family court suggested that time be managed so that Kingery’s
testimony could begin by about 11:00 A.M. to allow him ample time to be heard.
At 10:19 A.M., the family court informed Kingery’s attorney that his time for
cross-examining Woolford was up and he requested a continuance which the
family court denied, noting that the parties had only asked for a half-day hearing
and that he had spent a lot of time on the same issues.
After testimony by Woolford and the FOC, Kingery began his
testimony about 11:15 A.M., and the family court indicated that about twenty
minutes should be afforded for direct examination so that there would also be time
for cross-examination. After Kingery’s testimony concluded about 11:45 A.M.,
his attorney requested five minutes for closing argument and the family court
allowed each party’s attorney to argue for a few minutes so that the proceedings
concluded by about noon as scheduled.
Kingery complains that Woolford testified much longer than he did
and that he was not afforded sufficient time to cross-examine her or to present
-10- desired evidence. From our review of the recorded hearing, although Woolford’s
testimony lasted longer than Kingery’s, this appears largely due to the length of
time of Kingery’s counsel’s cross-examination (about an hour). We conclude the
family court afforded sufficient opportunity for each party to present proof, cross-
examine witnesses, and make arguments despite enforcing reasonable time limits
based on our review of the record.
As the family court aptly stated in its order denying Kingery’s CR
59.05 motion: “It is not this Court’s responsibility to manage counsel’s case. The
Court, is however, authorized to impose reasonable time limits on hearings and has
the discretion to control the amount of evidence produced on a particular point.
Addison v. Addison, 463 S.W.3d 755 (Ky. 2015).” (R., p. 738.) Also, Kingery has
not pointed with requisite specificity to additional testimony or evidence he wanted
to present but could not due to the time limits imposed by the family court which
would have likely changed the outcome here.
We discern no abuse of discretion in the family court’s establishing
and enforcing reasonable time limits from our review of the record– especially
given the family court’s familiarity with the case and the detailed report and
recommendations of the FOC on this custody matter. See Addison, 463 S.W.3d at
762-63 (holding there was no abuse of discretion in fixing reasonable time limits
-11- for custody modification hearing, considering trial court’s familiarity with the case
and the preparation of a report and recommendations by a psychologist).
Next, Kingery argues the family court erred in not admitting into
evidence a letter from a medical office indicating that Child had been dropped as a
patient due to frequent failure to attend scheduled appointments. Woolford
objected to admission of the letter, which Kingery argued was a certified business
record. Woolford pointed out this letter was neither signed nor dated nor was it
provided as part of Child’s whole medical record from this provider.5 She argued
this was not a record produced in the regular course of business but was produced
in anticipation of litigation.
The family court agreed with Woolford that the letter could not be
properly admitted as a certified business record. In its order denying Kingery’s CR
59.05 motion, the family court explained the letter “did not appear to be a record
kept in the ordinary course of business, rather, prepared in anticipation of
litigation. The document is notarized, but not signed (it is typewritten) and on
whole, lacks any indicia of reliability.” (R., p. 740.)
Kingery argues the letter showed that Woolford lied about the real
reason for her switching Child’s pediatrician. (Woolford had testified to changing
5 Woolford’s counsel suggested that the proof could be held open to permit Kingery to submit the entire medical record for Child from this particular provider so that Kingery could present the letter as part of this record. But Kingery evidently did not opt to pursue this option.
-12- doctors because of a change in her health insurance.) Kingery contends the family
court relied on Woolford’s “lie” in reaching its decision.
Regardless of the reasoning behind Woolford’s taking Child to a new
doctor, however, the family court explicitly stated that the letter would not change
its child custody decision in its order denying the CR 59.05 motion. Even
assuming arguendo some error in the family court’s exclusion of the evidence, we
cannot reverse for any evidentiary error which does not affect the parties’
substantial rights. Kentucky Rules of Evidence (KRE) 103(a); CR 61.01.
Though Kingery argues in his brief that the exclusion of the letter
affected his substantial rights, we disagree. The reason for Woolford’s changing
Child’s doctor in this particular instance was not a key factor in the family court’s
decision. Instead, the family court expressly found that both parties had made
unilateral decisions about Child’s medical care at times, but it determined that sole
custody was in Child’s best interest due to the parties’ inability to communicate
and make decisions together. And it determined that Woolford should have sole
custody based on its finding that she was the party who made more effort to
involve the other in decision-making.
Furthermore, other than quoting KRE 803(6)(a) and making a
conclusory argument that the letter was “an appropriately certified business record
which should have been entered into the record and considered by the Court[,]”
-13- (Appellant’s brief, p. 9), Kingery fails to cite cases or otherwise indicate how the
family court allegedly misapplied governing evidentiary rules or other law in
excluding the letter. And we discern no misapplication of governing evidentiary
rules or other law in not admitting into evidence this unsigned, undated letter–
clearly not a medical chart– with no certification from a records custodian. See
generally KRE 803(6)(a), KRE 902(11).
Next, Kingery alleges that the family court erred in admitting into
evidence email(s)6 which had not been provided as part of pretrial disclosure.
Kingery does not specify the content of this email(s) or how its admission into
evidence prejudiced his substantial rights. See KRE 103, CR 61.01. Despite a
similar lack of specificity in his CR 59.05 motion, the family court presumed in its
order denying CR 59.05 relief that he was referring to emails admitted in rebuttal
of his testimony of recent improvements in communication.
As expressed in its order denying Kingery’s motion to alter, amend, or
vacate, the family court held that Woolford was not obligated to provide the email
evidence in advance because it was rebuttal evidence and further found “the emails
6 Kingery complains of the admission of an unspecified, singular email in his brief. From our review of the portion of the recorded hearing wherein Kingery objected to email evidence offered by Woolford for rebuttal, it is unclear whether he was objecting to just one particular email or a series of emails between the parties. Woolford discusses the issue as involving an email chain in her brief, and the family court referenced Kingery’s objection to emails– plural– in its order denying his motion to alter, amend, or vacate.
-14- were between the parties and so they were at all times known to, and in the
possession, of the Petitioner [Kingery].” (R., p. 740.)
From our review of the recorded hearing, Kingery objected to the
admission of an email exchange between the parties which occurred just a few
days prior to trial and well after the pretrial disclosure deadline (14 days before
trial). The crux of the email exchange was that Woolford notified him of Child’s
upcoming dental appointment and that Kingery did not directly respond to her
email but sent an email a few days later informing her that he had scheduled
Child’s dental appointment for a different date and time at a different office.
Kingery testified that he had only scheduled an appointment when called by the
dentist’s office to remind him that Child was due for an appointment and that he
had asked the caller whether there were any other appointments scheduled.
We discern no abuse of discretion in the family court’s admission of
the email evidence as rebuttal evidence since Kingery should have been aware of
the existence of recent emails between the parties and such recent emails were not
in existence at the pretrial disclosure deadline. And clearly such email evidence
had relevance to the determination of an important matter in controversy– whether
there was any recent improvement in the parties’ communications. See generally
KRE 401, KRE 402. Furthermore, Kingery was able to testify to explain why he
-15- had scheduled another appointment after Woolford’s email. In short, we discern
no reversible error in the admission of the email evidence in rebuttal.
Lastly, Kingery takes issue with the family court’s factual findings on
several matters. None of these matters appears solely determinative of the family
court’s ultimate custody decision, and they appear not to be major bases of the
ultimate custody decision.
Kingery takes issues with the family court’s findings that he “has no
stable work history” and “is reportedly unable to work at this time due to a back
injury.” (R., p. 700.) He asserts there was no testimony regarding his work history
presented at the custody trial, that he is currently employed, and that he has
maintained employment except for a brief period wherein he received workers’
compensation benefits for a work-related injury. We note that the family court
also found: “During the course of this litigation, he [Kingery] has worked as an
actor and a warehouse employee.” (R., p. 700.)
To the extent that findings about his employment history or current
employment may be inaccurate, any such error is harmless under CR 61.01. From
our review of the record, the family court’s child custody decision did not hinge on
Kingery’s past or present employment but on its findings that the parties did not
effectively communicate to make decisions together, although Woolford made
efforts to inform and engage the other party. Any errors in the family court’s
-16- findings as to Kingery’s past or present employment did not ultimately affect its
child custody decision and are therefore harmless. CR 61.01.
Next, Kingery argues the family court erred in finding that he “made
unfounded reports” of child abuse. (R., p. 701.) He points to the investigation of
Woolford’s home by the Indiana Department of Child Services relating to Child’s
older half-sibling from Woolford’s prior marriage. Kingery contends that Child
told multiple third parties she had been abused by her half-sibling. He also asserts
Child was at risk of going into foster care due to the investigation unless he
requested an emergency custody order, which resulted in Woolford’s visitation
being restricted to supervised visitation while the investigation was pending. He
admits that the Indiana authorities ultimately determined the allegations of child
abuse to be unsubstantiated. But because the investigation continued for months,
he contends that it was inaccurate for the family court to find that child abuse
reports were “unfounded” unless it used that term as a synonym for
“unsubstantiated” rather than as meaning “lacking a sound basis.” (Appellant’s
brief, pp. 12-13.)
Regardless of whether the family court meant that Kingery falsely
reported abuse or legitimately reported allegations by Child which ultimately could
not be substantiated, the finding that Kingery made unfounded reports of child
abuse is not clearly erroneous. As the fact-finder, the family court was free to
-17- judge the credibility of testimony and to make reasonable inferences from the
evidence presented, provided that it did not compound inference on inference.
K.H. v. Cabinet for Health and Family Services, 358 S.W.3d 29, 32 (Ky. App.
2011). As the FOC testified that Child’s demeanor changed during discussion of
abuse allegations and that Child only discussed such allegations when prompted by
Kingery’s wife,7 the family court’s finding that Kingery made unfounded child
abuse reports is supported by substantial evidence and reasonable inferences
therefrom. Thus, we cannot say that the family court’s finding on this matter was
clearly erroneous, although perhaps another fact-finder may not have made the
exact same finding.
Kingery also challenges the accuracy of the family court’s finding that
“Ms. Woolford has used OFW as ordered, but Mr. Kingery is generally
unresponsive.” (R., p. 702.) Kingery contends that both parties used OFW as well
as other means of communication such as emails and texts and that both parties did
not use OFW exclusively as ordered by the family court. He contends there is
7 Although the FOC elected not to speak with Child before preparing a report for the family court’s review prior to the custody trial, the FOC had previously prepared other reports at the family court’s request– including a report making recommendations during the pendency of Kingery’s emergency motion and the Indiana investigation of abuse allegations. The FOC spoke with Child in preparing her earlier report and then testified at the custody trial about her interactions with Child.
-18- insufficient evidence to support the family court’s finding that Woolford used
OFW but that Kingery was unresponsive.
Although Kingery appears correct that both parties utilized OFW at
least to some extent,8 we discern no clear error in the family court’s finding that
Kingery was not using OFW as ordered or was generally unresponsive.
Substantial evidence supports the family court’s finding– including testimony from
Woolford about Kingery not responding to at least some OFW messages about
Child’s medical or dental appointments and then sometimes rescheduling such
appointments without consulting Woolford. To the extent that Kingery’s
testimony conflicted with that of Woolford, the family court was entitled to
determine which testimony it found more credible. Moore v. Asente, 110 S.W.3d
336, 354-55 (Ky. 2003).
Kingery also contends the family court erred in finding that he did not
regularly participate in Child’s medical care and that he came to the hospital when
Child broke her arm but failed to attend follow-up visits. He claims he testified to
attending follow-up visits to the orthopedic specialist, that Woolford admitted to
his being involved in Child’s medical care– particularly over the last three years–
8 For example, the family court found that Kingery informed Woolford via OFW that he had updated Child’s vaccination at the same medical practice where Child was seen by her original pediatrician after initially refusing to respond to her questions about where Child was vaccinated. (R., pp. 702-03.)
-19- in her testimony, and that the FOC changed her opinion on the extent of his
involvement in Child’s medical care based on evidence presented at the hearing.
While there certainly appears to be some evidence of Kingery’s being
involved in Child’s medical care especially in more recent years, at most the
family court appears to have made a slight overstatement. We construe the family
court’s findings to mean that although the parties initially agreed upon Child’s
original pediatrician, Kingery elected not to regularly participate in Child’s
medical care until recently. And this finding is supported by substantial evidence
in the record– for example, testimony from Woolford that Kingery insisted for a
long time that medical appointments occur only during Woolford’s parenting time
and not during his parenting time.
Furthermore, assuming arguendo that the family court erred in its
findings regarding the degree of Kingery’s participation in Child’s medical care,
any such error was harmless. The family court did not decide to discontinue joint
custody and award Woolford sole custody based on lack of sufficient involvement
by Kingery in Child’s medical care, but on the parties’ inability to communicate
and make decisions together and on Kingery being the party less likely to seek
input from the other party. As the custody decision did not hinge on a lack of
sufficient involvement in Child’s medical care by Kingery, any errors in the family
-20- court’s findings about the extent of his involvement in Child’s medical care did not
affect his substantial rights and were harmless. CR 61.01.
Kingery also challenges the accuracy of the family court’s finding that
the new pediatrician (Dr. Eldridge) to whom Woolford recently brought Child for
care had an office “near Mr. Kingery’s home in Louisville.” (R., p. 702.)
Although we agree with Kingery that trial testimony indicated that Dr. Eldridge
had two Indiana locations but no Kentucky locations, Woolford testified to Dr.
Eldridge’s having an office between her home and Kingery’s home located in New
Albany, Indiana. We do not construe the family court’s finding to necessarily
mean that Dr. Eldridge had a Louisville office, but that Dr. Eldridge had an office
near Kingery’s home (i.e., the office in New Albany) as well as another location in
Georgetown, Indiana near Woolford’s home. Whether the New Albany office was
near Kingery’s home in suburban Louisville is a matter of opinion, of course.
Even if the family court did err in its finding as to where Dr. Eldridge
had medical offices, such error was harmless. The family court’s custody decision
did not hinge on whether Dr. Eldridge had an office located in Louisville or near
Kingery’s home. Instead, it found continued joint custody unviable based on the
parties’ lack of ability to communicate or make decisions together. And it found
Woolford’s having sole custody appropriate due to its finding her to be the party
more likely to try to keep the other informed and involved– such as by her
-21- selecting a doctor with an office located between the parties’ homes and advising
Kingery of the doctor’s having an office in New Albany, somewhat nearer to
Kingery’s home than the doctor’s other office in Georgetown, Indiana. As the
exact location of Dr. Eldridge’s office vis-à-vis Kingery’s home was not a factor in
the family court’s ultimate custody decision, it did not affect Kingery’s substantial
rights, and any error in this regard was harmless under CR 61.01.
Finally, Kingery challenges the family court’s factual findings
regarding the FOC’s report related to the 2019-2020 school year. The family court
found that when Woolford tried to get Kingery’s input on enrolling Child at the
private school in Indiana, Kingery failed to respond by email but in response to
Woolford’s raising the issue in person, he stated: “Allison addressed this.” In a
footnote, the family court explained the reference to “Allison” as: “[a]n apparent
reference to the FOC’s recommendation that Child attend preschool regularly,
from both homes. The FOC has not addressed [Child’s] school enrollment for the
upcoming school year.” (R., p. 703.) (Attorney Allison S. Russell served as the
FOC appointed by the family court.)
Kingery argues the family court’s findings need to be clarified to
show that he was following the recommendation of the FOC in enrolling Child in
preschool for the 2019-2020 year. And he argues that the FOC made no
-22- recommendations about the 2020-2021 school year and that he was open to
discussing schools with Woolford.
From our review of the record, we agree with Kingery that there was
nothing necessarily improper in him registering Child for a preschool near him for
the 2019-2020 year. The FOC had previously recommended that both parties
enroll Child in preschool or daycare during their parenting time. Before Child
reached grade school age, it was apparently even possible for each parent to utilize
different facilities located near their respective homes during parenting time.
Rather than faulting Kingery for trying to enroll Child in preschool,
we perceive that the family court was noting with disapproval that Kingery failed
to respond to Woolford’s attempts to discuss the possibility of Child attending
preschool at the private school– particularly as Woolford indicated that that
affected Child’s ability to get scholarships for subsequent school years. The FOC
explained in her testimony that the private school which Woolford suggested only
offered full-time preschool with no option for part-time attendance there. The
FOC’s report noted that Child lost her spot at the private school due to Kingery’s
failure to timely respond to Woolford.
According to Kingery: “There is insufficient evidence to support the
finding that the FOC ‘has not addressed [Child’s] school enrollment for the
upcoming year’ with regards to the 2019-2020 school year.” (Appellant’s brief, p.
-23- 16) (internal quotation marks omitted). Perhaps he intends to argue that the family
court failed to take note that the FOC’s recommendation that Child attend
preschool or daycare from each home applied to the 2019-2020 school year.
We construe the family court’s statement that the FOC did not address
enrollment for “the upcoming school year” as applying to the 2020-2021 school
year given the January 2020 date of the trial and its judgment. Furthermore, any
error in the family court’s brief allusion to the FOC’s recommending preschool
attendance and not addressing the upcoming school year is harmless. CR 61.01.
Regardless of any specific FOC recommendations for future school
enrollment and of Kingery’s recent expressions of willingness to discuss future
school enrollment with Woolford, there was substantial evidence of the parties
frequently being unable to communicate or make such decisions together in the
past. And it is unlikely that Child could attend a different school while in each
parent’s care as she advances in her education. (Child turns seven in fall 2021.)
Although the FOC thought both parents were fit and recommended
the appointment of a parenting coordinator as a tiebreaker when the parents could
not agree on such matters as school choice, the family court found that use of a
parenting coordinator would not work because of the parties’ prior failure to
comply with court orders for assessments and “financial constraints.” (R., p. 705.)
From our review of the written record, there were several orders finding that the
-24- parties were unwilling or unable to pay for court-ordered assessments by
professionals. And given the parties’ continuing conflicts in exercising joint
custody despite numerous interventions to assist them, the family court may have
reasonably concluded that even the appointment of a parenting coordinator was
unlikely to foreclose further contentious litigation concerning Child’s school
placement, medical care, and other matters.
Although awarding sole legal custody to Woolford, the family court
explicitly ordered that Kingery have access to Child’s records and to her medical
and mental health providers, caregivers, and educators. And it did not order any
change in the parties’ long-standing exercise of equal parenting time to Child or
their current parenting time schedule. But it nonetheless found it to be in Child’s
best interest for Woolford to have sole legal custody so that “Ms. Woolford will
have final decision-making authority on all major issues involving [Child’s]
upbringing, including but not limited to her medical treatment, education, and
religious upbringing.” (R., p. 705.)
Again, the question is not whether this or some other court would
make the same decision as the family court. Based on the record before us, it is
possible that another court may have reasonably concluded that continued joint
custody with a parenting coordinator to act as a tiebreaker was in Child’s best
interest. Or perhaps another court might have found Kingery’s testimony to be
-25- more credible than Woolford’s or him to be the better choice for sole custodian.
But based upon our review of the record, the family court did not make clearly
erroneous findings on key factual matters, nor did it fail to apply the correct law,
and we cannot say that it abused its discretion in deciding to award Woolford sole
custody upon the record provided to us. Thus, we discern no reversible error. Any
other issues or arguments raised by the parties in their briefs which are not
discussed in this Opinion have been determined to lack merit or relevancy to our
resolution of this appeal.
For the foregoing reasons, the judgment of the Jefferson Family Court
is hereby AFFIRMED.
JONES, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Zachary J. Springer John H. Helmers, Jr. Louisville, Kentucky Louisville, Kentucky
-26-