Varney v. Bingham

513 S.W.3d 349, 2017 WL 728125, 2017 Ky. App. LEXIS 36
CourtCourt of Appeals of Kentucky
DecidedFebruary 24, 2017
DocketNO. 2016-CA-000370-ME
StatusPublished
Cited by2 cases

This text of 513 S.W.3d 349 (Varney v. Bingham) 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
Varney v. Bingham, 513 S.W.3d 349, 2017 WL 728125, 2017 Ky. App. LEXIS 36 (Ky. Ct. App. 2017).

Opinion

OPINION

JONES, JUDGE:

Carrie Varney appeals the December 1, 2015, Order of the Estill Circuit Court, adopting the recommendations of the Domestic Relations Commissioner (“DRC”) granting Appellee, Edward Bingham, sole custody of the minor child. Having reviewed the record and being otherwise sufficiently advised, we vacate the circuit court’s order and remand this matter for additional proceedings.

I. Factual and Procedural Background

Carrie and Edward have never been married, but they were involved in a romantic relationship with one another for some period of time. During their relationship, Came gave birth to a child on August 29, 2014. Carrie continued living with Edward until late October of 2014, when she took the child and left the home the parties had been staying in.

After moving out, Carrie sought emergency custody of the child. Her motion was granted, and an order to this effect was entered on November 18, 2014. Edward moved the court to set the order aside, claiming that he had not been properly served or given notice of Carrie’s motion. Edward also filed his own motion seeking sole custody of the child.

A hearing was held on December 4, 2014. At the hearing, the court addressed Edward’s motion to vacate as well as the Emergency Protective Order (EPO) Carrie filed against Edward. The court granted Edward’s motion on the basis that he did not receive proper notice. In addressing the EPO, the court noted that it found Carrie to be the more credible party and entered a Domestic Violence Order (DVO) against Edward.

The court then referred the custody issue to the Estill County DRC. Although a hearing is not included in the record, the Docket Sheet indicates that the DRC awarded Carrie temporary sole custody, with visitation to Edward, and modified the DVO to allow text communication.

On December 30, 2014, a notice of filing and an agreement between the parties as to timesharing was entered. On March 16, 2015, Carrie filed a letter with the court, requesting an immediate court date because “the Father Edward Bingham is denying me my child.” A hearing was held on April 3, 2015, by which time Edward had returned the child to Came. Accordingly, the hearing was continued by agreement of the parties.

After a number of court proceedings, a final hearing was held on August 13, 2015, regarding the parties’ petitions for sole custody. The DRC conducted a lengthy [351]*351hearing where both parties were present and represented by counsel. The DRC heard testimony from numerous witnesses.

Carrie testified that she attends Eastern Kentucky University. She explained that she had previously had a drug problem, but had not used drugs in a number of years since completing an intensive drug court program prior to her pregnancy and child’s birth. Carrie testified that she previously lived with her brother, but is now living with her boyfriend, Mr. Pope, in a home where the child has her own bedroom. She admitted that Mr. Pope and Edward are very hostile with one another, but blames Edward for the hostility. Carrie also testified that Edward is very controlling with her.

Edward testified that he lives with his parents and that the child has her own room at their home. However, he admitted that he slept on the couch to allow the child use of the bedroom. He testified that his mother assisted in caring for the child while he was working. He expressed concern about Mr. Pope, Carrie’s prior drug problem, and smoking around the child.

Sherrie Rose, Carrie’s cousin who often babysits the child for Carrie, also testified. She acknowledged that she was aware of Carrie’s previous drug issues, but testified that the child is well taken care of and that she does not smoke around the child. Ms. Rose also testified that she knows Mr. Pope and believes that he is a fine person to have around the child.

Carrie’s mother, Ms. Wagner, also testified. While she conceded that Carrie did previously have a drug problem and was known to steal during that time, she indicated that Carrie had been fine since completion of the drug program prior to child’s birth. Ms. Wagner also testified that Edward had been violent with Carrie in the past. Ms. Wagner believes Carrie is a good mother and the child is happy.

Edward’s mother, Sandra Riddell, also testified about an altercation that occurred during an exchange of the minor child where Mr. Pope and Edward became hostile with one another.

Edward’s ex-girlfriend, Melissa Allen, testified that she has one child with Edward. Ms. Allen admitted that she previously sought and obtained an EPO against Edward. However, she downplayed the incident as a “miscommunication.”

While Edward testified that he believed he observed “track marks” on Carrie’s arms, she denied any current drug use. At the conclusion of the hearing, Carrie agreed to submit to a hair follicle test. The results of the hair follicle testing were negative for all substances tested.

On October 15, 2015, the DRC issued its recommendations. Considering the factors in KRS1 403.270, the DRC concluded that the best interests of the child would be served by awarding sole custody to Edward.

On October 27, 2015, Carrie filed exceptions to the DRC’s recommendations. Ultimately, the trial court denied Carrie’s exceptions and adopted the DRC’s recommendations. On December 10, 2015, Carrie filed a motion for a new trial, to alter, amend or vacate the judgment, and for additional findings. The court overruled Carrie’s motion with respect to sole custody, but did modify the order so that visitation was in accordance with the parties’ previous agreement. This appeal by Carrie followed.

II. Standard op Review

The proper standard of review for any custody award is as follows:

[352]*352Since 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 (Ky. 2008) (citing B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)). With this standard in mind, we turn to Carrie’s various assignments of error.

III. Analysis

A. Standing

Carrie’s first argument is that Edward lacked standing to seek custody of the child because he had not proven paternity. Edward counters that he admitted paternity in open court during the custody proceedings and further that Carrie never raised the standing issue before either the DRC or the trial court, preventing her from relying on the issue for the first time on appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
513 S.W.3d 349, 2017 WL 728125, 2017 Ky. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varney-v-bingham-kyctapp-2017.