Williams v. Frymire

377 S.W.3d 579, 2012 WL 3762437, 2012 Ky. App. LEXIS 161
CourtCourt of Appeals of Kentucky
DecidedAugust 31, 2012
DocketNo. 2011-CA-001568-ME
StatusPublished
Cited by5 cases

This text of 377 S.W.3d 579 (Williams v. Frymire) 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
Williams v. Frymire, 377 S.W.3d 579, 2012 WL 3762437, 2012 Ky. App. LEXIS 161 (Ky. Ct. App. 2012).

Opinion

OPINION

LAMBERT, Judge:

Linda Williams has appealed from the judgment of the Calloway Family Court [580]*580modifying custody of her minor daughter, Jessica Frymire, from sole to joint and naming Linda’s former husband and Jessica’s father, David Frymire, as the primary residential parent. Linda contends that the court did not have jurisdiction to consider David’s motion to modify, and if the forum was appropriate, abused its discretion in modifying the primary residential parent. Based upon our review of the record, including the modification hearing, we disagree with Linda’s arguments and therefore affirm.

Linda Williams and David Frymire were married twice; first from 1992 to 1996, and they married for a second time on March 9, 2000. One child, Jessica, was born of the second marriage on September 29, 2005. Linda and David separated in March 2006, and Linda filed a petition to dissolve the marriage the same month. At that time, the couple lived in Lexington and the petition was filed in Fayette County. When David failed to appear at the final hearing regarding custody of Jessica, the Fayette Family Court awarded sole custody to Linda and ordered David to pay child support in the amount of $500.00 per month. The final decree was entered in January 2007.

Following the breakup of their marriage, Linda moved to Woodford County with Jessica and David moved to Calloway County. Linda, through the Fayette County Attorney’s Office, moved to transfer the matter to Woodford County, where she and Jessica lived. This was granted in November 2007. In July 2010, Linda, through the Woodford County Attorney’s Office, moved to change the venue again, this time to Calloway County. By this time, Linda and Jessica had moved out-of-state and were living in St. Charles, Missouri, while David remained in Calloway County. This motion was granted in August 2010.

On January 3, 2011, David filed a motion in the Calloway Family Court requesting modification of custody or timesharing, for modification of child support, and for restricted visitation. At this time, Jessica was five years old. The basis for David’s motion was Linda’s e-mail communication sent on November 29, 2010, in which she announced that Jessica was transgender and would from then on be considered a boy, wear boy clothing, and be called Bridge. Linda also stated that she would begin transitioning Jessica’s gender from girl to boy and had discussed the matter with Jessica’s school. Furthermore, Linda would not listen to any challenge regarding this decision, but referred any dissention to her father. In the motion, David also notified the court of Linda’s past behavior regarding Jessica’s health, when she raised what were later determined to be unfounded concerns about her vision, hearing, and speech, and her suspicion that Jessica might have Asperger’s Syndrome. By separate motion, David requested the appointment of a child psychologist and a custodial evaluation, which the family court granted.

In response, Linda contested the family court’s jurisdiction to hear the case because she and Jessica had moved out of the state in 2007 and no longer had any significant connection to Kentucky. She also argued that Kentucky was an inconvenient forum to hear the case. In support, Linda cited to Kentucky Revised Statutes (KRS) 403.824 and 403.834(2).

The court denied Linda’s request for a hearing and considered the jurisdictional issue on the basis of the parties’ briefs. By order entered March 10, 2011, the family court concluded that Kentucky retained exclusive and continuing jurisdiction of the matter pursuant to KRS 403.824 in that David was a resident of Kentucky. The court also determined that Kentucky was [581]*581not an inconvenient forum to address custody modification. Linda moved to alter, amend, or vacate the court’s order, stating that the court had failed to address the specific factors listed in KRS 403.834 related to the inconvenient forum issue. The court amended its order to reflect that it had considered the factors set forth in KRS 403.834(2), but otherwise did not alter its ruling.

The family court held a modification hearing on August 3 and 4, 2011. At the beginning of the hearing, the parties stipulated to joint custody and standard visitation, with each party requesting to be the residential parent, although the court later indicated that it would award whatever type of custody that would be in Jessica’s best interest. The parties also provided a joint exhibit including a tabbed and indexed set of medical records that would be introduced during the trial. The witnesses testified as follows:

At the time of the hearing, David was forty-four years old. He had been living in Murray, Kentucky, for the past four years and working at Lowes, where he had also worked while he lived in Lexington. Following their separation, he testified that Linda and Jessica moved to Versailles and stayed with former neighbors. Later, she and Jessica moved to Illinois and then to St. Charles, Missouri. He visited one time per month with Jessica, generally in Murray, but Jessica was also able to visit with his sister and his parents (her aunt and grandparents). During their time together, he and Jessica went to the park, played with animals, played baseball, and enjoyed nature. He kept her for five weeks during the summer of 2011, and he stated that she was comfortable and well-settled in his care. David did not encounter any problems with Jessica related to tantrums or depression. He did note that when she arrived, Linda had only packed boy clothes for Jessica to wear.

Regarding the onset of Linda’s belief that Jessica is transgender, David recalled a telephone conversation with Linda in May 2010 after Linda had watched a television special on the topic. David assumed this belief would eventually “run its course” like other concerns she had raised in the past related to Jessica’s hearing, vision, and speech, and her suspicion of Asperger’s Syndrome. David testified that Linda has bipolar disorder,’ and stated that he believed the medications she took to treat this illness had affected her ability to drive and make decisions.

On cross-examination, David testified about his visitation following their separation and divorce, which he described as increasing over time, and he stated that he never talked to any of the therapists involved. He also admitted that Linda had signed a release permitting him to seek medical assistance for Jessica, if needed. In addition, David stated that he was open to permitting Jessica to wear gender-neutral clothing. The court questioned David regarding his failure to appear at the final custody hearing and whether he had concerns about Linda’s ability to care for their daughter. He claimed confusion about the court date, but asked his attorney at the time to represent his interests at the hearing. David testified that he believed Jessica was safe during the time following the separation and divorce.

Betsy Porter, David’s sister and Jessica’s aunt, testified that she has seen David and Jessica interact, and that Jessica is comfortable, secure, and well eared for while with David. Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
377 S.W.3d 579, 2012 WL 3762437, 2012 Ky. App. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-frymire-kyctapp-2012.