Heather Lerae Moore v. Eddie Dean Moore

• Court: Kentucky Supreme Court
• Decided: June 16, 2021
• Docket: 2020 SC 0553
• Status: Unknown

Opinion

RENDERED: JUNE 17, 2021 TO BE PUBLISHED

Supreme Court of Kentucky 2020-SC-0553-DGE

HEATHER LERAE MOORE APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2019-CA-1579 WHITLEY CIRCUIT COURT NO. 14-CI-00600

EDDIE DEAN MOORE APPELLEE

OPINION OF THE COURT BY JUSTICE NICKELL

REVERSING AND REMANDING

The Kentucky Court of Appeals affirmed an order of the Whitley Circuit

Court granting Eddie Dean Moore unsupervised overnight visitation with the

two minor daughters born during his marriage to Heather Lerae Moore. In a

split decision, after determining the trial court’s findings were supported by

substantial evidence, a majority of the Court of Appeals panel concluded no

abuse of discretion occurred and affirmed. We granted Heather’s motion for

discretionary review. Having reviewed the record and arguments of the parties,

we reverse the Court of Appeals and remand for further proceedings.

Eddie and Heather were married for eleven years and the union produced

two daughters. Eddie also had custody of his two older children from a prior

marriage. On October 2, 2014, Eddie’s eldest daughter informed Heather that

on several prior occasions Eddie had engaged in inappropriate sexual behaviors with her. When Heather confronted Eddie about the accusations, he admitted

he had touched the girl but he “was not like that anymore.”

At Heather’s insistence, Eddie presented himself to law enforcement to

report his actions. In a recorded interview, Eddie confessed to four incidents of

inappropriately touching his eldest daughter. Based on this confession and the

results of further police investigation, Eddie was indicted on multiple criminal

charges. Shortly thereafter, Heather filed for divorce and was granted

temporary sole custody of the two daughters she shared with Eddie.1 Eddie

was granted supervised, non-overnight visitation with the girls on Sundays and

holidays. The restricted visitation schedule persisted while Eddie’s criminal

charges were resolved. He was ultimately acquitted on all counts following a

jury trial in April of 2017.

One week later, Eddie began proceedings seeking joint custody of and

increased visitation with his daughters. Following a hearing on June 23, 2017,

the trial court concluded Eddie had, in fact, sexually abused his daughter, the

contrary jury verdict notwithstanding, and Eddie had used poor judgment at

best. Based on its concerns for the safety of the younger children and the

heightened risk of harm if left in Eddie’s care unsupervised, the trial court

ordered supervised visitation for eight hours each Saturday. Further, Eddie

was required to complete anger management classes and undergo a mental

1 Custody and visitation of Eddie’s older children are not at issue in this matter.

2 health assessment, providing a copy of his police interview to any professional

prior to beginning any session. His motion for joint custody was denied.

On January 23, 2018, Eddie again moved the court for joint custody and

to increase his visitation, resulting in a hearing being convened on February

21, 2018. As two expert witnesses were not available to testify, the trial court

continued the hearing for a later date to permit the parties to take the experts’

depositions. During the second hearing, the trial court noted Eddie had

performed poorly on psychological testing and evinced an effort to “beat the

test.” Additionally, the court concluded Eddie’s inability and refusal to

acknowledge any wrongdoing with respect to his actions toward his eldest

daughter placed the younger daughters at risk if Eddie were to be granted

unsupervised visitation, and therefore denied the request. A written order

memorializing the trial court’s decision was entered on June 5, 2018. Eddie’s

supervised visitation period was increased to ten hours on Saturdays and six

and one-half hours on Sundays, with the visits to occur two out of every three

weekends. The trial court stated further modification of the visitation schedule

would not occur “[u]nless and until [Eddie] accepts responsibility for his

actions and is genuinely remorseful[.]” Eddie was also ordered to undergo the

extensive psychotherapy recommended as a result of his mental health

evaluation. His motion for joint custody was again denied upon the trial

court’s conclusion such would not be in the children’s best interests, and sole

custody was granted to Heather.

3 Eddie filed a third motion for joint custody and increased, unrestricted

visitation approximately ten months later. An evidentiary hearing was

convened on August 22, 2019. Along with receiving testimony from the parties

and Eddie’s treating therapist, the trial court interviewed the two children to

determine their wishes. Both girls expressed anxiety and hesitancy to visit

their father overnight. In its written order entered on September 3, 2019, the

trial court made extensive findings detailing its concerns with Eddie’s actions

and continued failure to acknowledge the inappropriateness of his prior

actions. The trial court stated its ultimate decision was whether Eddie posed a

safety risk to the girls. Despite the weighty concerns set forth previously in the

order, and without setting forth specific reasons justifying the decision or

explaining why Eddie’s failure to accept responsibility or show remorse should

be excused, the trial court held there would be no risk of harm in granting

unsupervised, overnight visitation. Eddie was granted visitation with the

children every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on the

following Sunday and on December 25 at 5:00 p.m. until December 27 at 5:00

p.m.

Heather moved to alter, amend, or vacate the September 3, 2019, order,

and the children’s guardian ad litem joined in the motion noting her serious

concerns for their safety. At a hearing, the trial court stated Eddie was never

going to admit he had sexually abused his oldest daughter or otherwise accept

responsibility for his actions. The trial court noted no reasonable parent would

permit their children to spend time with Eddie, going so far as to note if his

4 own daughters were of that age, there was no “chance in the world” he would

allow them to go to Eddie’s house and would tell them to “run the other way” if

they were to see Eddie. However, finding Eddie had a constitutional right to

parent his children, the trial court dismissed these concerns and reiterated its

view Eddie did not present a risk of harm as he had never been accused of

inappropriate conduct with either of them.

Heather appealed the adverse decision to the Court of Appeals. In a

divided decision, the Court of Appeals disagreed with Heather’s argument the

trial court had departed from the requirements of its prior orders for Eddie to

receive unsupervised or overnight visitation without Eddie complying with

those terms. The majority found the trial court’s ultimate decision was

supported by substantial evidence and, although not discussed in any of the

trial court’s orders, expansion of visitation was in the children’s best interests.

Additionally, in a footnote responding to the dissent’s rebuke of the trial court

for its failure to consider and make a specific finding regarding the statutorily

required best interest standards before modifying the prior timesharing orders,

the majority held Heather had waived any such argument as she had not

raised the issue on appeal. The majority further concluded the trial court had,

in fact, ruled on the issue by implication. Finally, the majority held the trial

court had not abused its discretion in determining there was no risk of harm in

permitting unsupervised, overnight visitation with Eddie. We granted

Heather’s motion for discretionary review.

5 Heather asserts the trial court erred in failing to follow the law of the

case between these parties when it modified the visitation schedule without

Eddie fully complying with the prerequisites contained in prior orders and the

Court of Appeals erred when it affirmed without fully addressing the matter.

Next, Heather contends the trial court and the Court of Appeals failed to apply

the correct standard governing modification of visitation. Finally, she argues

the Court of Appeals erroneously concluded a party may waive arguments

regarding a trial court’s failure to make mandatory statutory findings and, in

any event, she did raise the issue on appeal, thereby rendering the Court of

Appeals’ conclusion erroneous. We agree the lower courts utilized an incorrect

legal standard, thereby requiring reversal. Heather’s other arguments shall be

addressed only insofar as they may recur on remand.

Modification of a visitation award is governed by KRS2 403.320(3).

Pursuant to that statute,

[t]he 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.

A restriction occurs when a parent receives something less than “reasonable

visitation.” French v. French, 581 S.W.3d 45, 50 (Ky. App. 2019) (citation

omitted). Thus, under the plain language of KRS 403.320(3), a trial court may

2 Kentucky Revised Statutes.

6 modify a visitation order when doing so is in the child’s best interests,3 but can

only order “less than reasonable” visitation if serious endangerment to the

child’s health is found. Clearly, a parent seeking to modify visitation must

present evidence that the requested modification is in the children’s best

interests. Pennington v. Marcum, 266 S.W.3d 759, 767 (Ky. 2008).

Trial courts retain broad discretion in modifying visitation awards. Id. at

769. “Due regard shall be given to the opportunity of the trial court to judge

the credibility of the witnesses.” Humphrey v. Humphrey, 326 S.W.3d 460, 463

(Ky. App. 2010) (citing Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008)).

Under the established standard of review, we will “only reverse a trial court’s

determinations as to visitation if they constitute a manifest abuse of discretion,

or were clearly erroneous in light of the facts and circumstances of the case.”

Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). The test is not whether

we as an appellate court would have decided the matter differently, but

whether the trial court’s rulings were clearly erroneous or constituted an abuse

of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). “The test for

abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Goodyear

Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

3A non-exhaustive list of factors to be considered by trial courts is contained in KRS 403.270.

7 Here, the trial court twice concluded the risk of endangerment was

significant enough to restrict Eddie’s visitation, painstakingly setting forth the

reasoning behind the decisions in its written orders entered in 2017 and 2018.

In its September 3, 2019, order, the trial court recited many of its earlier

concerns, yet reversed course and inexplicably increased Eddie’s visitation and

removed the supervision requirement. In so doing, the trial court focused

exclusively on the second prong of the modification standard—risk of

endangerment—contained in KRS 403.320(3). However, Eddie was seeking—

and was ultimately granted—an increase in visitation. Thus, because the trial

court was considering a modification rather than a restriction, the appropriate

criterion was the best interests of the children.

Although the trial court concluded granting Eddie joint custody of the

children would not be in their best interests, no mention was made of best

interests in relation to the visitation schedule and none of the factual findings

indicated the trial court considered any of the factors required to make such a

determination. Trial courts are required by CR4 52.01 to make findings of fact

and render conclusions of law based on those facts. See Anderson v. Johnson,

350 S.W.3d 453, 454 (Ky. 2011) (holding CR 52.01 requires courts to engage in

good faith effort at fact-finding to be included in a written order). The trial

court here did neither regarding the best interest factors. Contrary to the

holding of the Court of Appeals, nowhere in the trial court’s order do we

4 Kentucky Rules of Civil Procedure.

8 discern any consideration of whether expanding visitation would be in the

children’s best interests nor can we say the trial court ruled on the matter by

implication.5 Further, none of the findings contained in the order support the

modification.

As stated previously, the trial court’s sole focus was on risk of harm as is

plainly evident from its September 3, 2019, order, and this was clearly the

wrong legal standard to be applied. Any opportunity for meaningful review is

foreclosed because the trial court failed to make any findings regarding the

statutorily mandated best interests standard. The Court of Appeals erred by

focusing on whether the trial court’s findings of fact were supported by

substantial evidence while not considering whether those factual findings were

sufficient or applicable to the matter to be determined under KRS 403.230(3)

and while also seemingly excusing the failure to make the required conclusion

of law.6 As the trial court failed to apply the correct legal standard, we are

constrained to determine it abused its discretion by expanding Eddie’s

visitation. Thus, reversal and remand are required. On remand, the trial court

5 To conclude an implied ruling by a trial court was sufficient would clearly run afoul of the mandates of CR 52.01 as noted in Anderson. 6 We also disagree with the Court of Appeals’ determination Heather waived consideration of the issue of the trial court’s failure to make the statutorily required findings. As noted by the dissent in that decision, any argument regarding the trial court’s failure to determine the children’s best interests was clearly subsumed by Heather’s argument Eddie could not even meet the burden of proving the children would not be at risk of endangerment if left unsupervised in his care. Thus, there was no waiver.

9 is directed to utilize the appropriate legal standard in determining whether to

modify the parties’ visitation schedule.

Finally, we briefly address Heather’s contention the trial court’s deviation

from its prior orders without requiring Eddie’s full compliance was erroneous.

In particular, Heather asserts Eddie’s failure to show genuine remorse for his

actions and accept responsibility for his actions precluded a modification based

on the plain language of the June 5, 2018, order requiring same. While the

trial court clearly struggled with deciding this difficult case, the record is

unclear why Eddie’s partial compliance with prior orders was deemed

sufficient. This lack of clarity is especially difficult to comprehend considering

the trial court’s own comments at the hearing on Heather’s motion to alter,

amend, or vacate, that it was convinced Eddie would never take responsibility

for his actions and would therefore be unable to ever comply with that portion

of its orders. However, because we are remanding the matter on other grounds

and are certain the trial court will appropriately explain this aberration should

the issue again arise on remand, we need not now determine the propriety of

the trial court’s deviation from its prior orders.

For the foregoing reasons, the opinion of the Court of Appeals is

reversed, and the matter is remanded to the Whitley Circuit Court for further

proceedings consistent with this Opinion.

All sitting. All concur.

10 COUNSEL FOR APPELLANT:

Hailey Scoville Bonham SCOVILLE-BONHAM & RILEY, PLLC

COUNSEL FOR APPELLEE:

Douglas Glenn Benge CESSNA BENGE