RENDERED: SEPTEMBER 15, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1223-MR
MICHAEL SMITH, JR. APPELLANT
APPEAL FROM CLAY CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE CLINT J. HARRIS, JUDGE ACTION NO. 21-CI-00172
CARLA ASHER APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Michael Smith, Jr. (“Smith”) appeals from the decree of
custody entered by the Clay Circuit Court, Family Division on May 26, 2022.
After careful review of the record, finding no error, we affirm.
Carla Asher (“Asher”) gave birth to the parties’ minor child on March
4, 2021. The parties were unmarried and not in a relationship when the child was
born. In a separate action, a judgment establishing Smith’s paternity was entered on July 21, 2021. Smith petitioned for sole custody of the child on August 5, 2021.
A hearing on the petition occurred on December 15, 2021. Both parties appeared.
Counsel represented Smith. Asher, who appeared virtually, was unrepresented by
counsel. The court heard testimony from the parties, a nurse practitioner who had
treated the child, Smith’s wife, and a Cabinet for Health and Family Services
caseworker.
After the hearing, Smith’s counsel tendered a proposed decree of
custody. The family court entered the tendered decree but marked out several
proposed findings of fact, including some related to Asher’s criminal history.
However, the court specifically found that Asher was arrested on charges of
alcohol intoxication, resisting arrest, disorderly conduct in the second degree, and
two counts of wanton endangerment in the first degree on November 14, 2021.
The court found that Asher was released from incarceration for inpatient substance
abuse treatment but did not complete the program. In its findings, the court took
judicial notice of Asher’s criminal history, the paternity action, and a dependency,
neglect, and abuse (“DNA”) action regarding the child.1
1 Although the record in the DNA action has not been made part of the record in this matter, it appears a petition was filed by the Cabinet on July 22, 2021. Both Smith and Asher were parties to the action. The caseworker testified the petition was filed due to Asher’s substance use. At disposition in the DNA action, the family court ordered the child remain in the home.
-2- Considering the best interest factors listed in KRS2 403.270(2), the
family court awarded Smith and Asher joint custody and granted Asher no
timesharing. Smith timely moved to alter, amend, or vacate the decree. He argued
that the family court improperly marked out his proposed findings related to
Asher’s criminal history and should have taken judicial notice of her criminal
history under KRE3 201. The court denied the motion.
This appeal followed.
Before we reach the merits of Smith’s appeal, we must address
Asher’s failure to file a brief.
If the appellee’s brief has not been filed within the time allowed, the court may: (a) accept the appellant’s statement of the facts and issues as correct; (b) reverse the judgment if appellant’s brief reasonably appears to sustain such action, or (c) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case. RAP4 31(H)(3) (emphasis added). It is within the discretion of this Court to
determine whether to exercise any of these options, and we decline to do so here.
See Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007)). Asher has chosen to
forgo her opportunity to bring to our attention any disagreements she may have had
2 Kentucky Revised Statutes. 3 Kentucky Rules of Evidence. 4 Kentucky Rules of Appellate Procedure.
-3- with Smith’s recitation of the facts and alleged issues. Despite this, we have
conducted a thorough review of the record and relevant law and will now review
the merits of Smith’s appeal.
We review a family court’s findings of fact in a custody matter for
clear error. Maxwell v. Maxwell, 382 S.W.3d 892, 895 (Ky. App. 2012) (citation
omitted). A finding is not clearly erroneous where it is supported by substantial
evidence. Id. We cannot reverse a decision simply because we may have reached
a different conclusion. Id. We may only reverse where a court has misapplied the
law or abused its discretion. Id.
We also review evidentiary rulings for abuse of discretion. Anderson
v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (footnote omitted).
On appeal, Smith argues: (1) the family court erred by failing to take
judicial notice of Asher’s criminal history; (2) the court abused its discretion by
failing to properly consider the parties’ mental and physical health under KRS
403.270(2)(f); (3) the court was required to determine Asher’s fitness and should
have found her unfit to have custody of the child; and (4) the court’s decision to
award joint custody but grant Asher no timesharing was procedurally improper.
First, Smith’s argument that the family court failed to take judicial
notice of Asher’s criminal history is directly refuted by the court’s findings in the
custody decree. The decree includes a finding that “[t]he court took judicial notice
-4- of [Asher’s] criminal history.” Record (“R.”) at 99. Smith contends that judicial
notice of her criminal history required an award of sole custody in his favor.
However, the mere existence of Asher’s criminal record is not determinative of
custody.
The court must determine what is in the child’s best interest by
considering all relevant factors, including those listed in KRS 403.270(2). It is
within the family court’s “exclusive province” to weigh the evidence presented by
the parties. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted).
Even where judicial notice is taken, the weight given to evidence depends upon the
context of the proceedings. See Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App.
2004). Here, the family court took judicial notice of Asher’s criminal history,
considered it in the context of the requirements of KRS 403.270(2), and awarded
joint custody to the parties. This was not an abuse of the court’s discretion.
Furthermore, the family court considered the factors listed in KRS
403.270(2), including the parties’ mental and physical health. Although Smith
does not specify what aspect of Asher’s mental or physical health the court failed
to consider, we can assume from the facts that he is referring to her history of
substance abuse. The court made multiple findings about Asher’s substance use
and unsuccessful completion of inpatient treatment. These findings indicate the
court’s consideration of KRS 403.270(2)(f).
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RENDERED: SEPTEMBER 15, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1223-MR
MICHAEL SMITH, JR. APPELLANT
APPEAL FROM CLAY CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE CLINT J. HARRIS, JUDGE ACTION NO. 21-CI-00172
CARLA ASHER APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Michael Smith, Jr. (“Smith”) appeals from the decree of
custody entered by the Clay Circuit Court, Family Division on May 26, 2022.
After careful review of the record, finding no error, we affirm.
Carla Asher (“Asher”) gave birth to the parties’ minor child on March
4, 2021. The parties were unmarried and not in a relationship when the child was
born. In a separate action, a judgment establishing Smith’s paternity was entered on July 21, 2021. Smith petitioned for sole custody of the child on August 5, 2021.
A hearing on the petition occurred on December 15, 2021. Both parties appeared.
Counsel represented Smith. Asher, who appeared virtually, was unrepresented by
counsel. The court heard testimony from the parties, a nurse practitioner who had
treated the child, Smith’s wife, and a Cabinet for Health and Family Services
caseworker.
After the hearing, Smith’s counsel tendered a proposed decree of
custody. The family court entered the tendered decree but marked out several
proposed findings of fact, including some related to Asher’s criminal history.
However, the court specifically found that Asher was arrested on charges of
alcohol intoxication, resisting arrest, disorderly conduct in the second degree, and
two counts of wanton endangerment in the first degree on November 14, 2021.
The court found that Asher was released from incarceration for inpatient substance
abuse treatment but did not complete the program. In its findings, the court took
judicial notice of Asher’s criminal history, the paternity action, and a dependency,
neglect, and abuse (“DNA”) action regarding the child.1
1 Although the record in the DNA action has not been made part of the record in this matter, it appears a petition was filed by the Cabinet on July 22, 2021. Both Smith and Asher were parties to the action. The caseworker testified the petition was filed due to Asher’s substance use. At disposition in the DNA action, the family court ordered the child remain in the home.
-2- Considering the best interest factors listed in KRS2 403.270(2), the
family court awarded Smith and Asher joint custody and granted Asher no
timesharing. Smith timely moved to alter, amend, or vacate the decree. He argued
that the family court improperly marked out his proposed findings related to
Asher’s criminal history and should have taken judicial notice of her criminal
history under KRE3 201. The court denied the motion.
This appeal followed.
Before we reach the merits of Smith’s appeal, we must address
Asher’s failure to file a brief.
If the appellee’s brief has not been filed within the time allowed, the court may: (a) accept the appellant’s statement of the facts and issues as correct; (b) reverse the judgment if appellant’s brief reasonably appears to sustain such action, or (c) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case. RAP4 31(H)(3) (emphasis added). It is within the discretion of this Court to
determine whether to exercise any of these options, and we decline to do so here.
See Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007)). Asher has chosen to
forgo her opportunity to bring to our attention any disagreements she may have had
2 Kentucky Revised Statutes. 3 Kentucky Rules of Evidence. 4 Kentucky Rules of Appellate Procedure.
-3- with Smith’s recitation of the facts and alleged issues. Despite this, we have
conducted a thorough review of the record and relevant law and will now review
the merits of Smith’s appeal.
We review a family court’s findings of fact in a custody matter for
clear error. Maxwell v. Maxwell, 382 S.W.3d 892, 895 (Ky. App. 2012) (citation
omitted). A finding is not clearly erroneous where it is supported by substantial
evidence. Id. We cannot reverse a decision simply because we may have reached
a different conclusion. Id. We may only reverse where a court has misapplied the
law or abused its discretion. Id.
We also review evidentiary rulings for abuse of discretion. Anderson
v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (footnote omitted).
On appeal, Smith argues: (1) the family court erred by failing to take
judicial notice of Asher’s criminal history; (2) the court abused its discretion by
failing to properly consider the parties’ mental and physical health under KRS
403.270(2)(f); (3) the court was required to determine Asher’s fitness and should
have found her unfit to have custody of the child; and (4) the court’s decision to
award joint custody but grant Asher no timesharing was procedurally improper.
First, Smith’s argument that the family court failed to take judicial
notice of Asher’s criminal history is directly refuted by the court’s findings in the
custody decree. The decree includes a finding that “[t]he court took judicial notice
-4- of [Asher’s] criminal history.” Record (“R.”) at 99. Smith contends that judicial
notice of her criminal history required an award of sole custody in his favor.
However, the mere existence of Asher’s criminal record is not determinative of
custody.
The court must determine what is in the child’s best interest by
considering all relevant factors, including those listed in KRS 403.270(2). It is
within the family court’s “exclusive province” to weigh the evidence presented by
the parties. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted).
Even where judicial notice is taken, the weight given to evidence depends upon the
context of the proceedings. See Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App.
2004). Here, the family court took judicial notice of Asher’s criminal history,
considered it in the context of the requirements of KRS 403.270(2), and awarded
joint custody to the parties. This was not an abuse of the court’s discretion.
Furthermore, the family court considered the factors listed in KRS
403.270(2), including the parties’ mental and physical health. Although Smith
does not specify what aspect of Asher’s mental or physical health the court failed
to consider, we can assume from the facts that he is referring to her history of
substance abuse. The court made multiple findings about Asher’s substance use
and unsuccessful completion of inpatient treatment. These findings indicate the
court’s consideration of KRS 403.270(2)(f).
-5- Next, the family court was not required to determine Asher’s fitness to
parent. Smith cites Davis v. Collinsworth, 771 S.W.2d 329 (Ky. 1989), and
Forester v. Forester, 979 S.W.2d 928 (Ky. App. 1998), supporting his argument.
Neither case applies to this matter. In both Davis and Forester, a nonparent sought
custody of minor children. Parents have “fundamental, basic and constitutionally
protected rights” to their children. Davis, 771 S.W.2d at 330 (citing Santosky v.
Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Stanley v.
Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). Because of the
constitutional significance of awarding custody to a nonparent, the nonparent must
meet the higher standard of proving the parent’s unfitness. Id. Smith and Asher
are the child’s parents, and the family court was not required to determine Asher’s
fitness to parent the child.
Finally, it was not procedurally improper for the court to award joint
custody without giving Asher any timesharing. Custody and timesharing are
distinct determinations. Although many understand custody to mean physical
possession of the child, this is legally inaccurate. See Pennington v. Marcum, 266
S.W.3d 759, 676 (Ky. 2008). Custody refers to the authority to make decisions
regarding the child, and timesharing is the time the child spends with each parent.
Id. “[D]ecision-making is either vested in one parent or in both and how often the
child’s physical residence changes or the amount of time spent with each parent
-6- does not change this.” Id. at 767. Smith cites to nothing in the law that prevents a
court from awarding joint custody while denying one parent timesharing.
Practically speaking, under the court’s decree, while joint custody
gives Asher an equal right to make decisions regarding the child alongside Smith,
she may not have the child in her physical possession so long as the current
timesharing order is in place.
Based on the foregoing, the May 26, 2022 custody decree of the Clay
Circuit Court, Family Division, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE.
Stella B. House Manchester, Kentucky
-7-