RENDERED: JUNE 16, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0711-MR
PRESTON CAPPS APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE KEVIN D. BISHOP, JUDGE ACTION NO. 21-CI-00197
NICOLLE CHAPMAN AND STEPHANIE CAPPS APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
DIXON, JUDGE: Preston Capps appeals the order of the Graves Circuit Court,
entered April 28, 2022, modifying timesharing, schooling, and tax exemptions.
After careful review of the briefs, record, and law, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Preston and Nicolle Chapman (hereinafter Father and Mother,
respectively) are the parents of K.A.C. (Child) who, at the time of the proceedings at issue, was eight years old and in the second grade. On June 7, 2021, Stephanie
Capps (Grandmother) filed the underlying petition seeking to be designated
Child’s de facto custodian and to be awarded permanent custody. By an October
13, 2021, agreed order, Grandmother was named de facto custodian, the parties
were awarded joint custody, and Grandmother and Mother (collectively Appellees)
were allotted shared parenting time from the first Thursday and third Wednesday
of a given month until the following Monday. On February 17, 2022, Appellees
filed a joint motion to modify timesharing to conform with the recommendations
of Child’s counselor and for other related relief.
A final hearing on the motion was held on April 27, 2022. At the
hearing, Child’s counselor recommended that he reside primarily with
Grandmother and that Father have parenting time every other weekend and one
week in the summer, provided Father is present for the entire duration of his visits.
She further recommended that Child, who had been enrolled in Heath Elementary
since the start of the current school year, return to Central Elementary, where he
had attended kindergarten and first grade, to provide a sense of familiarity and
belonging that he was otherwise lacking.
In support, the counselor explained that she had diagnosed Child with
severe adjustment and acute stress disorders − as demonstrated by his problematic
behavior at school and in the home, the deterioration of his ability to communicate
-2- effectively, and his recent development of depressive and withdrawn behaviors –
and that he was not coping with the many changes he had experienced within the
last year. She cited Father’s paramour’s antagonism towards Child and Heath
Elementary’s push to establish an Individualized Education Program (IEP), which
she asserted was inappropriate and detrimental to his future education, as stressors
that were contributing to Child’s worsening mental and emotional health.
However, despite attesting to a willingness to help remedy Child’s behaviors,
Father has not acknowledged Child’s diagnoses, was not amenable to returning
Child to Central Elementary, and does not perceive any need to protect Child from
his paramour. Conversely, the counselor concluded that Grandmother was
supportive of the treatment recommendations and Child’s demeanor was improved
when with her. Ultimately, the counselor opined that the current timesharing
arrangement seriously endangered Child’s mental and emotional health, and the
recommended modifications were in his best interest.
Father testified that Child’s behavioral problems existed prior to his
enrollment at Heath Elementary, though he admitted that, per school records, they
coincide with when he assumed control over Child’s schooling from Grandmother.
He recounted that his remedial efforts consisted of maintaining continuous contact
with Child’s school and trying different parenting techniques, such as spanking and
taking things away, neither of which worked. Father acknowledged that despite
-3- ongoing problems, he did not have Child evaluated by a counselor or doctor prior
to this action. He disputed the counselor’s assessment of his paramour’s
relationship with Child, noting that the paramour and the counselor had only met
on one occasion, and he opined that Child was improving under the current case
plan. Finally, Father asserted that the counselor’s current recommendations were
inconsistent with an equal parenting time arrangement espoused at a recent
meeting. Father’s attempt to introduce a recording supporting this claim was
denied.
By judgment entered April 28, 2022, the court granted Appellees’
motion and adopted the counselor’s recommended parenting time schedule; the
court further ordered that Child be returned immediately to Central Elementary.
Father’s subsequent motion to alter, amend, or vacate the order was denied, and
this appeal followed. We will introduce additional facts as they become relevant.
STANDARD OF REVIEW
Father contends that the court erred by excluding evidence. We
review a court’s decision regarding the admission of evidence for an abuse of
discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). “The test for
abuse of discretion is whether the [circuit] judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
-4- LEGAL ANALYSIS
During his cross examination of Child’s counselor, Father sought to
introduce an audio recording he surreptitiously made of a meeting between
Grandmother, the counselor, and himself approximately one week before the final
hearing in this matter. Concluding that unilateral consent is insufficient to record a
conversation between more than two people, the court excluded Father’s proffered
proof as illegally obtained. On appeal, Father maintains that the court erred
because the recording was lawful and, regardless, it was admissible.
“A person is guilty of eavesdropping when he intentionally uses any
device to eavesdrop[.]” KRS1 526.020(1). “‘Eavesdrop’ means to overhear,
record, amplify[,] or transmit any part of a wire or oral communication of others
without the consent of at least one (1) party thereto by means of any electronic,
mechanical[,] or other device.” KRS 526.010. It is a fundamental rule of
interpretation that “[t]he plain meaning of the statutory language is presumed to be
what the legislature intended, and if the meaning is plain, then the court cannot
base its interpretation on any other method or source.” Univ. of Louisville v.
Rothstein, 532 S.W.3d 644, 648 (Ky. 2017). Applying this rule to the statute at
hand, we agree that Father’s recording of the meeting was not unlawful because he
1 Kentucky Revised Statutes.
-5- was a party to the communication. Consequently, the court’s exclusion of the
evidence on this basis was clearly erroneous.
However, our review is not complete because Appellees argue any
error was harmless and, therefore, the judgment should nonetheless be affirmed.
CR2 61.01 provides that:
No error in either the admission or the exclusion of evidence . . .
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JUNE 16, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0711-MR
PRESTON CAPPS APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE KEVIN D. BISHOP, JUDGE ACTION NO. 21-CI-00197
NICOLLE CHAPMAN AND STEPHANIE CAPPS APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
DIXON, JUDGE: Preston Capps appeals the order of the Graves Circuit Court,
entered April 28, 2022, modifying timesharing, schooling, and tax exemptions.
After careful review of the briefs, record, and law, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Preston and Nicolle Chapman (hereinafter Father and Mother,
respectively) are the parents of K.A.C. (Child) who, at the time of the proceedings at issue, was eight years old and in the second grade. On June 7, 2021, Stephanie
Capps (Grandmother) filed the underlying petition seeking to be designated
Child’s de facto custodian and to be awarded permanent custody. By an October
13, 2021, agreed order, Grandmother was named de facto custodian, the parties
were awarded joint custody, and Grandmother and Mother (collectively Appellees)
were allotted shared parenting time from the first Thursday and third Wednesday
of a given month until the following Monday. On February 17, 2022, Appellees
filed a joint motion to modify timesharing to conform with the recommendations
of Child’s counselor and for other related relief.
A final hearing on the motion was held on April 27, 2022. At the
hearing, Child’s counselor recommended that he reside primarily with
Grandmother and that Father have parenting time every other weekend and one
week in the summer, provided Father is present for the entire duration of his visits.
She further recommended that Child, who had been enrolled in Heath Elementary
since the start of the current school year, return to Central Elementary, where he
had attended kindergarten and first grade, to provide a sense of familiarity and
belonging that he was otherwise lacking.
In support, the counselor explained that she had diagnosed Child with
severe adjustment and acute stress disorders − as demonstrated by his problematic
behavior at school and in the home, the deterioration of his ability to communicate
-2- effectively, and his recent development of depressive and withdrawn behaviors –
and that he was not coping with the many changes he had experienced within the
last year. She cited Father’s paramour’s antagonism towards Child and Heath
Elementary’s push to establish an Individualized Education Program (IEP), which
she asserted was inappropriate and detrimental to his future education, as stressors
that were contributing to Child’s worsening mental and emotional health.
However, despite attesting to a willingness to help remedy Child’s behaviors,
Father has not acknowledged Child’s diagnoses, was not amenable to returning
Child to Central Elementary, and does not perceive any need to protect Child from
his paramour. Conversely, the counselor concluded that Grandmother was
supportive of the treatment recommendations and Child’s demeanor was improved
when with her. Ultimately, the counselor opined that the current timesharing
arrangement seriously endangered Child’s mental and emotional health, and the
recommended modifications were in his best interest.
Father testified that Child’s behavioral problems existed prior to his
enrollment at Heath Elementary, though he admitted that, per school records, they
coincide with when he assumed control over Child’s schooling from Grandmother.
He recounted that his remedial efforts consisted of maintaining continuous contact
with Child’s school and trying different parenting techniques, such as spanking and
taking things away, neither of which worked. Father acknowledged that despite
-3- ongoing problems, he did not have Child evaluated by a counselor or doctor prior
to this action. He disputed the counselor’s assessment of his paramour’s
relationship with Child, noting that the paramour and the counselor had only met
on one occasion, and he opined that Child was improving under the current case
plan. Finally, Father asserted that the counselor’s current recommendations were
inconsistent with an equal parenting time arrangement espoused at a recent
meeting. Father’s attempt to introduce a recording supporting this claim was
denied.
By judgment entered April 28, 2022, the court granted Appellees’
motion and adopted the counselor’s recommended parenting time schedule; the
court further ordered that Child be returned immediately to Central Elementary.
Father’s subsequent motion to alter, amend, or vacate the order was denied, and
this appeal followed. We will introduce additional facts as they become relevant.
STANDARD OF REVIEW
Father contends that the court erred by excluding evidence. We
review a court’s decision regarding the admission of evidence for an abuse of
discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). “The test for
abuse of discretion is whether the [circuit] judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
-4- LEGAL ANALYSIS
During his cross examination of Child’s counselor, Father sought to
introduce an audio recording he surreptitiously made of a meeting between
Grandmother, the counselor, and himself approximately one week before the final
hearing in this matter. Concluding that unilateral consent is insufficient to record a
conversation between more than two people, the court excluded Father’s proffered
proof as illegally obtained. On appeal, Father maintains that the court erred
because the recording was lawful and, regardless, it was admissible.
“A person is guilty of eavesdropping when he intentionally uses any
device to eavesdrop[.]” KRS1 526.020(1). “‘Eavesdrop’ means to overhear,
record, amplify[,] or transmit any part of a wire or oral communication of others
without the consent of at least one (1) party thereto by means of any electronic,
mechanical[,] or other device.” KRS 526.010. It is a fundamental rule of
interpretation that “[t]he plain meaning of the statutory language is presumed to be
what the legislature intended, and if the meaning is plain, then the court cannot
base its interpretation on any other method or source.” Univ. of Louisville v.
Rothstein, 532 S.W.3d 644, 648 (Ky. 2017). Applying this rule to the statute at
hand, we agree that Father’s recording of the meeting was not unlawful because he
1 Kentucky Revised Statutes.
-5- was a party to the communication. Consequently, the court’s exclusion of the
evidence on this basis was clearly erroneous.
However, our review is not complete because Appellees argue any
error was harmless and, therefore, the judgment should nonetheless be affirmed.
CR2 61.01 provides that:
No error in either the admission or the exclusion of evidence . . . is ground[s] for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
See also KRE3 103(a).
Father asserts that the omitted evidence undermines the credibility of
the counselor’s proposed timesharing modifications as being in Child’s best
interest. Appellees disagree, noting that the counselor’s recommendation was so
strongly against Father and his paramour that the court was compelled to
immediately change Child’s residence and school, notwithstanding the short
duration of the remaining academic year, and to restrict Father’s parenting time for
fear his paramour would abuse Child if unattended.
2 Kentucky Rules of Civil Procedure. 3 Kentucky Rules of Evidence.
-6- We reject Appellees’ characterization of the evidence. While the
counselor certainly recommended that Child live primarily with Grandmother and
stated her concerns regarding Father’s paramour, she also unequivocally stated that
Father was not unfit, that it was not her intention to separate Child and Father, and
that the only difficulty she perceived regarding mid-week visits was the distance
between the parties’ residences. Further, not only did the counselor render no
opinion as to when the change in Child’s primary custodian should occur, she
specifically recommended that Child remain at Heath Elementary until the end of
the academic year. As the court explained when it announced its rulings from the
bench, the impetus behind the immediacy of its order was to prevent Heath
Elementary from establishing an IEP. Yet, despite this divergence, we
nevertheless agree with Appellees that Father’s substantial rights were not violated.
Father has never alleged the counselor actually opined that equal
parenting time was in Child’s best interest; rather, both Father and his counsel
characterized the counselor’s statements as exploring different options to aid Child.
The counselor’s testimony about the meeting is largely consistent with these
admissions, absent her complete denial that she ever mentioned 50/50 timesharing.
The counselor recalled discussing Father’s willingness to relocate back to Graves
County so that Child could return to Central Elementary and Father could work
towards a reconciliation with Grandmother to facilitate more substantial
-7- timesharing in the future. We also find it compelling that Father did not deny his
disregard for the counselor’s recommendations that Child should be re-enrolled at
Central Elementary, which was of pivotal concern for the counselor and the court,
and that Child would benefit by his relocating to Graves County. Accordingly, the
recording had little value as rebuttal evidence, and the court’s error in omitting it
was harmless.
CONCLUSION
Therefore, and for the foregoing reasons, the judgment of the Graves
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Caleb M. Nelson S. Boyd Neely, III Paducah, Kentucky Mayfield, Kentucky
-8-