Jacobs v. Edelstein

959 S.W.2d 781, 1998 Ky. App. LEXIS 1, 1998 WL 20737
CourtCourt of Appeals of Kentucky
DecidedJanuary 23, 1998
DocketNo. 97-CA-297-MR
StatusPublished
Cited by5 cases

This text of 959 S.W.2d 781 (Jacobs v. Edelstein) 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
Jacobs v. Edelstein, 959 S.W.2d 781, 1998 Ky. App. LEXIS 1, 1998 WL 20737 (Ky. Ct. App. 1998).

Opinion

OPINION

GUDGEL, Chief Judge:

This is an appeal from an order entered by the Jefferson Circuit Court modifying a joint custody decree and awarding sole custody to appellee. For the reasons stated hereafter, we vacate and remand.

The parties are the parents of a daughter who was born in August 1990. They ceased cohabiting in April 1991, and a custody action was filed thereafter. Sole custody was awarded to appellant in 1992, but appellee repeatedly sought to modify the custody decree on the grounds that appellant is an alcoholic and is unable or unfit to properly care for the child. Appellant, on the other hand, adduced evidence to show that appellee had followed, threatened, and harassed her. Eventually, appellee was awarded temporary custody of the child after appellant was charged with public intoxication in the child’s presence.

In October 1993, the parties entered into an agreed judgment regarding custody. Pursuant to the agreement, the parties were to share joint custody and to have equal visitation. Each was to provide a primary residence for the child. The agreement further stated that “neither parent should abuse drugs and/or drink any alcohol,” that both would “continue their Alcohol and Psychological Treatment Program,” and that the “[fjailure to continue treatment and failure to maintain sobriety will result in loss of unsupervised visitation.”

Eleven months later, appellee requested the court to terminate appellant’s unsupervised visitation rights because she had consumed alcohol several times subsequent to the entry of the agreed order. In response to this request, the court ordered appellant’s visitation with the child to be directly supervised by appellant’s mother, and directed that the child should neither be present in the home when alcohol was consumed, nor be in the company of anyone who was under the influence of alcohol. These court-imposed supervised visitation restrictions were terminated in April 1995.

In March 1996, appellee again filed a motion to modify custody, alleging that appellant had continued to use alcohol in violation of the court’s previous orders. Although appellant admitted that she had consumed alcohol on three occasions in early 1996, she denied that she drank it in the child’s presence or that she became intoxicated. While appellee’s motion to modify was pending, appellant entered and completed an in-patient alcohol rehabilitation program.

Finally, in January 1997, the court granted appellee’s pending motion and awarded him sole custody. In its order, the court expressed concern both about appellant’s failure to abstain from consuming alcohol despite being repeatedly warned and ordered to do so, and about appellee’s continued demonstration of “behaviors which exhibit his continuing lack of responsibility in handling [783]*783his personal finances, and his continuing attempts to ruin Dr. Jacobs’ career.” However, the court also noted that after evaluating the child, Dr. Lee Epstein described her as “a very bright, stable, impressive, well adjusted child who is magnificent in her interpersonal relationships with her parents and peers,” and did not recommend changing the visitation schedule. Additionally, the court found that

the record is replete with the understanding of the parties as to Respondent’s obligation to refrain from the use of alcohol when in the company of this child and the Court’s admonitions against Respondent exposing this child to alcohol use by Respondent or others. These unusual precautions were necessary because Respondent had exposed the child to serious risk by her action on June 13, 1993. Most parents can be trusted to use alcohol in a mature, responsible manner when children are present. Respondent had proven her inability to do so.
Although there is no evidence that she, or anyone else, became intoxicated and again placed this child at risk in March, 1996, her action in returning to the use of alcohol when exercising parental control of the child constitutes a bad faith refusal to cooperate with the most important requirement of this joint custody arrangement, and is sufficient to reopen the custody issue for a de novo determination under KRS 403.270.
Dr. Lee Epstein’s testimony shows that this child has, miraculously, fared well under the joint custody and equal time provisions of the agreed order, in spite of the continuing parental conflict evidenced by these proceedings. Thus, the Court’s first inclination, to limit or require supervision of the Respondent’s time with the child, so as to reduce the risk of future alcohol abuse and danger to the child, does not appear to be in Alexandria’s best interest.
Alexandria is devoted to both her parents and has flourished under the current schedule....
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Had Mr. Edelstein’s behavior been different, this Court would have no misgivings about modifying custody and awarding to him, sole custody. He has, however, remained financially irresponsible, has engaged in a course of conduct obviously aimed at harming the Respondent professionally, and has used his volunteer position with MADD for his own personal purposes under the guise of volunteer work for that group. Mr. Edel-stein’s failure to recognize his actions as deviations from acceptable behavior is troubling to the Court. One of the main concerns as to awards of sole custody is the power imbalance that is thereby created. Mr. Edelstein has shown by his previous behavior a tendency toward abusing his authority or power. He has continued in counselling ... and hopefully he will be able to carry out his responsibilities as a sole custodian for this child without damaging the close relationship between the child and the Respondent. (Emphasis added.)

The court ordered the parties to continue sharing equal time with the child according to the visitation schedule set forth in the earlier agreed judgment. This appeal followed.

We stated in Mennemeyer v. Mennemeyer, Ky.App., 887 S.W.2d 555, 558 (1994), that

in nonconsensual modification situations ... the trial court may intervene to modify a previous joint custody award only if the court first finds that there has been an inability or bad faith refusal of one or both parties to cooperate. Any court-ordered modification must then be made in light of the best interest of the children and based upon the factors which are enumerated in KRS 403.270.

This judicial standard was reiterated in Stinnett v. Stinnett, Ky.App., 915 S.W.2d 323, 324 (1996), wherein we noted that

Mennemeyer ⅛ requirement of “an inability or bad faith refusal of one or both parties to cooperate” must be read in conjunction with our supreme court’s definition of “cooperation” as it applies to joint custody situations. In Squires v. Squires, Ky., 854 S.W.2d 765, 769 (1993), and as noted in Mennemeyer, supra at 557, the

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Bluebook (online)
959 S.W.2d 781, 1998 Ky. App. LEXIS 1, 1998 WL 20737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobs-v-edelstein-kyctapp-1998.