Cody Lee Newhouser v. Caitlin N. McCleese ( 2021 )

RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0502-ME
CODY NEWHOUSER APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 17-CI-00532
CAITLIN N. MCCLEESE APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND MAZE, JUDGES.
COMBS, JUDGE: This case involves a custody dispute in which the father
challenges a decision of the trial court to permit the mother of the parties’ minor
child to relocate to Ohio with the child. Appellant, Cody Newhouser (Cody), and
Appellee, Caitlin N. McCleese (Caitlin), who did not marry, are the parents of one
biological child, a daughter born in 2017. They share joint custody. The trial
court’s October 23, 2019, Order in the underlying custody litigation provides as
follows:
The parties had previously entered an Agreed
Order granting joint custody to both parents and the
Respondent [Cody] having the child every other weekend
and four hours on Tuesday and Thursday. [Cody] works
for Marathon and works 28 days on and 28 days off. His
mother, Katherine Newhouser, has taken care of the child
most of the time historically and both parties agree that
she should have time with the child currently. . . .
The Petitioner [Caitlin] testified that she agrees to
equal time. . . .
IT IS HEREBY ORDERED that the parties
continue to have joint custody of the child and share
equally in the child with [Caitlin] having the child 4-days
each week that [Cody] is working[,] with his mother
receiving the child 3-days per week. When [Cody] is not
working, then he shall receive the child 4-days each week
and [Caitlin] shall receive the child 3-days.
(Emphasis original.)
In November 2020, Caitlin moved with the child to Dublin, Ohio,
along with her boyfriend, Tyler, and their infant son who was born in 2020. They
moved to Ohio because Tyler found better employment there. He leased an
apartment in the same complex where Cody’s mother lives.
On November 4, 2020, Cody filed a combined motion objecting to
Caitlin’s relocation, seeking relief, and asking for attorney’s fees. Cody alleged
that Caitlin had not informed him of her intent to relocate until the day she moved
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without his consent or permission. Cody requested that he be awarded primary
residential custody of the parties’ daughter if Caitlin wishes to relocate.
Caitlin filed a response and explained that she and her companion had
discussed the possibility of moving to the Columbus, Ohio, area for employment
for some time before the move and that Cody was agreeable to such a move until it
happened. Caitlin contended that it would be physically impossible for Cody to be
primary custodian because he works on boats on the river and is gone for 28 days
at a time. Caitlin requested permission to move with the child.
On March 16, 2021, the trial court conducted a hearing by Zoom.
Cody testified. He currently resides in South Shore, Kentucky, and works for
Marathon Petroleum as a deckhand on a tug boat, 28 days on and 28 days off.
Cody cannot exercise his timesharing while he is on the boat. When he is at home,
Cody exercises timesharing four days per week. Cody testified that Caitlin had
recently moved to Columbus and that he had filed an objection in November 2020.
According to Cody, Caitlin did not request his or the court’s permission, and she
notified him the day of the move.
Cody testified that when the child starts school,1 his timesharing will
be restricted because the drive from Columbus, Ohio, to his home takes about two
and one-half hours. Cody opined that it would be another year or two before the
1
The parties’ child was three years of age at the time of the hearing and was not in school.
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child can start kindergarten. Cody’s parents and some uncles live in Columbus.
Caitlin has family in the Greenup County, Kentucky, area. Cody explained that he
was asking the court either to order that the child move back to the Greenup
County area or to designate him as the primary custodian. If the court were to
designate him as primary custodian, Cody’s girlfriend or her parents would care for
the child when he could not. Cody testified that he takes medication for
depression. He also testified that problems had arisen between his mother and him
that caused additional concerns about the move to Ohio.
Cody’s girlfriend, MacKenzie Craycraft, also testified. They live
together and have been in a relationship since August 2019. MacKenzie testified
that she would be able to care for the child if Cody were to receive primary
custody and that her parents could watch the child when she is at work. MacKenzie
testified that she works Monday through Wednesday and on weekends at a rehab
facility in Ironton, Ohio. She is off on Thursdays and Fridays. She denied any
drug or alcohol issues.
Caitlin testified that she and Cody had discussed the possibility of her
moving to Ohio before November 2020. The conversation about moving to
Dublin, Ohio, started in June 2020. Cody never opposed the move until he filed
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his motion. Caitlin testified that she did not know that she had to file a motion
requesting that the court allow her to move.2
Caitlin testified that she and her boyfriend, Tyler, have been together
for four years and have an eight-month-old son together. At present, Tyler earns
$850.00 to $1,000.00 per week after taxes as a forklift driver. Before they moved
to Ohio, Tyler was making about $530.00 per week as a construction worker.
Caitlin testified that the parties drop off/exchange the child at a
McDonald’s in Chillicothe -- a little more than an hour away for Caitlin and a little
under an hour for Cody. Cody’s mother lives across from Caitlin in the same
apartment complex and helps care for the child. Caitlin explained that she was
asking the court to approve her move to Ohio and that it would create a financial
hardship if she had to move back to the Greenup, Kentucky, area. Caitlin felt that
it was premature to discuss what the timesharing arrangement might be when the
child starts school. Caitlin testified that she and Cody had “agreed that we would
wait and we would have that conversation when it got closer for her to go to
school.”
2
Family Court Rule of Practice and Procedure 7(2)(a)(i) requires that “[b]efore a joint custodian
seeks to relocate, written notice shall be filed with the court and served on the non-relocating
joint custodian.”
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Katherine Newhouser, Cody’s mother, testified. She explained that
Cody had terminated his relationship with her (his mother) because he was upset
“that she replaced him with Caitlin and her boyfriend.” Ms. Newhouser testified
that Cody had a history of depression. Ms. Newhouser testified about
MacKenzie’s drinking. Ms. Newhouser had to go to her residence at least twice
because MacKenzie “was so obliterated.” The previous July, Ms. Newhouser and
her husband had gone on a family vacation with Cody, MacKenzie, and the child.
According to Ms. Newhouser, “MacKenzie was drunk the entire time. She
urinated on herself on the beach.” Ms. Newhouser testified that she has seen
MacKenzie intoxicated on other occasions and in the child’s presence.
Ms. Newhouser explained that Cody and Caitlin had separated while
Caitlin was still pregnant. Ms. Newhouser was the mediator between them
regarding any big problem that arose. In late June 2020, Caitlin and Tyler started
talking about moving to look for better employment, and Ms. Newhouser brought
up the subject of the possible move to Cody. He said that he had no disagreement
with the move. Ms. Newhouser testified that Cody did not express any concern
with the move “until after they were here. . . . [H]e said he was okay with it until it
happened.”
By Order entered March 22, 2021, the trial court concluded that
relocation is in child’s best interest as follows in relevant part:
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[Cody] has objected to [Caitlin’s] moving with the
child to Dublin, Ohio. [Cody] lives in South Shore,
Kentucky. The parties have one child . . . who turned
three in November 2020. [Cody] works for Marathon
Petroleum on a tow boat and works 28 days on and 28
days off.
[Cody] wants the Court to enter an order requiring
[Caitlin] to move back to this area with the child.
[Cody’s] parents and his uncle live in the Columbus,
Ohio area. [Caitlin’s] parents live in Greenup County,
Kentucky. [Cody] states that if [Caitlin] is required to
move back to this area then his girlfriend and her parents
will be able to babysit the child when he works.
[Cody’s] mother lives in the same apartment complex,
literally across the parking lot, from [Caitlin] and the
child. [Cody] has had a falling out with his mother over
her relationship with [Caitlin].
According to [Caitlin], she discussed her move
with [Cody] in June, and he did not object to the move.
. . . On November 11, 2020 [Caitlin] moved into the
apartment. She resides there with her boyfriend of four
years with whom she has a child. She moved with her
boyfriend so that he could obtain a better paying job
which he has been able to do. The boyfriend earns
between $850.00 and $1,000.00 per week as opposed to
the $530.00 per week that he was earning when they
resided there.
The parties are currently dropping off and picking
up at McDonald’s on Main Street in Chillicothe, Ohio
and they are ORDERED to continue to do so.
According to [Cody’s] mother, [Cody’s] girlfriend
drinks a lot and [Cody] battles depression. According to
Ms. Newhouser, [Cody] said he had no problem with
[Caitlin’s] moving in July 2020.
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Based upon the foregoing, the COURT HEREBY
FINDS it in the best interest of the child to allow
[Caitlin] to move with the child. The COURT FINDS
that [Cody] agreed to the move originally but now has
changed his mind. The COURT FINDS that [Caitlin]
had legitimate reasons for wanting to move out of the
area and the move has been in the best interest of the
parties’ child.
(Emphases original.)
Cody filed a motion to alter, amend, or vacate and for specific
findings. By Order entered on April 7, 2021, the court denied the motion except
for an adjustment to Christmas timesharing.
Cody now appeals. He contends that the trial court abused its
discretion when it permitted Caitlin to move to Dublin, Ohio, and when it failed to
make specific findings with regard to the child’s best interest. We address his
arguments together.
Cody submits that KRS3 403.320 controls. We agree.
[I]f the only interest of the opposing party is to object to
relocating the child, but not to alter joint decision-
making, then he is seeking to have the existing
visitation/timesharing arrangement changed, and need
only establish that it is in the child’s best interests not to
relocate, which would thereby change the existing
visitation/timesharing situation. . . . KRS 403.320(3)
controls, which allows modification of
visitation/timesharing “whenever modification would
serve the best interests of the child[.]”
3
Kentucky Revised Statutes.
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....
Every case will present its own unique facts, and . . .
must be decided in the sound discretion of the trial court.
Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). In N.B. v. C.H., 351
S.W.3d 214, 226 (Ky. App. 2011), this Court interpreted Pennington as holding:
that, between joint custodians, and absent the non-
primary residential parent's motion to modify
timesharing, including naming her as primary residential
parent, the relocating parent always bears the burden of
proving relocation is in best interests of the child.
Cody argues that the trial court’s findings are insufficient. He cites
Agnich v. Tyler, 520 S.W.3d 394 (Ky. App. 2017), which explains that in
modification cases, the court “has several factors to consider in making the
determination of what the best interests of a child are, which are partially listed in
KRS 403.270. . . . To review the judge’s decision on appeal, it is important to
know what facts the judge relied on[.]” Id. at 398 (quoting Anderson v. Johnson,
350 S.W.3d 453, 455 (Ky. 2011)).
In determining the best interests of a child, we note the language and
reasoning of Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008).
The statutory guidelines of KRS 403.270 do not include a
definition of the best interests of the child standard;
however, KRS 403.270(2) requires the trial court to
consider all relevant factors and provides a list of non-
exclusive, demonstrative factors to be considered in
custodial determinations.
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Those statutory factors include:
(a) The wishes of the child’s parent or parents, and any
de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian,
with due consideration given to the influence a parent
or de facto custodian may have over the child’s
wishes;
(c) The interaction and interrelationship of the child with
his or her parent or parents, his or her siblings, and
any other person who may significantly affect the
child’s best interests;
(d) The motivation of the adults participating in the
custody proceeding;
(e) The child’s adjustment and continuing proximity to
his or her home, school, and community;
(f) The mental and physical health of all individuals
involved[.]
KRS 403.270(2).
After our review, we are persuaded that the trial court properly
considered the relevant factors in determining that the move was in the child’s best
interest and that its findings are sufficient. The court duly considered that Cody
works 28 days on and 28 days off and that if the child were required to move back
to Kentucky as Cody wants, his girlfriend and her parents would babysit when he
works. The court also considered that Cody’s mother lives across the parking lot
from Caitlin and the child in the same apartment complex. The court found that
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Caitlin had a legitimate reason for moving; i.e., so that her boyfriend could obtain a
better-paying job, which he did. The court noted Ms. Newhouser’s testimony
regarding Cody’s girlfriend’s drinking and the fact that Cody has battled
depression. The court also found that Cody had initially agreed to the move and
that he then changed his mind.
We are satisfied that the trial court carefully and appropriately
exercised its discretion:
Trial courts are . . . vested with broad discretion in
matters concerning custody and visitation. In the absence
of an abuse of discretion, we will not disturb a trial
court’s decision. The test is not whether we as an
appellate court would have decided the matter
differently, but whether the trial court’s rulings were
clearly erroneous or constituted an abuse of discretion.
Jones v. Livesay, 551 S.W.3d 47, 51-52 (Ky. App. 2018) (citations omitted).
Cody’s argument on appeal is largely a re-argument of his case.
Although Cody presumes that his time with the child will be severely restricted
when she starts school, that eventuality has yet to occur. In the meantime, Cody’s
timesharing with the child remains as it was before. We are satisfied from our
review of the record that substantial evidence supports the trial court’s decision
that it is in the best interest of the parties’ child to allow Caitlin to move with the
child.
Finding no error or abuse of discretion, we affirm.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Tracy D. Frye Charles L. Douglas, Jr.
Russell, Kentucky Greenup, Kentucky
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