Alan McDaniel v. Mary Dolleris ( 2022 )

RENDERED: JULY 8, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0426-MR
ALAN MCDANIEL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DEANA D. MCDONALD, JUDGE
ACTION NO. 15-CI-502807
MARY DOLLERIS APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
JONES, JUDGE: The Appellant, Alan McDaniel, appeals from an order of the
Jefferson Family Court which awarded the Appellee, Mary Dolleris, equal
parenting time with the parties’ minor children. Alan argues that the family court
applied the wrong statute thereby improperly shifting the burden on him to show
that equal parenting time was not in the children’s best interests. After careful
review, we agree that the family court applied KRS1 403.270’s presumption of
equal parenting time in error where Mary was seeking to modify a prior
timesharing order. Accordingly, we vacate and remand for additional proceedings.
I. BACKGROUND
Alan and Mary were never married but share twins born in 2009. In
November of that same year, Mary filed paternity suits against Alan in Jefferson
Family Court (Case Numbers 09-J-505290 and 09-J-505291).2 On or about
December 18, 2012, agreed orders were entered in both actions for the parties to
share joint legal custody of the twins, for equal timesharing with the parties
alternating weeks with the twins, and for child support.
In 2015, Alan initiated the family court action giving rise to this
appeal in Jefferson Family Court (Case Number 15-CI-502807) by filing a petition
seeking sole legal custody of the twins and designation as the primary residential
parent. This new case was assigned to the same family court division as the prior
paternity actions. The family court conducted a hearing on February 26, 2016.
Following the hearing, the family court entered an order designating Alan as the
1
Kentucky Revised Statutes.
2
While the record in this appeal mentions the prior paternity actions, the records from those
actions were not certified as part of this appeal. However, this does not preclude our
consideration of the parties’ prior litigation involving these children. We are permitted to take
judicial notice of the orders entered as part of the juvenile actions. Collins v. Combs, 320
S.W.3d 669, 678 (Ky. 2010).
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primary residential parent with Mary to have timesharing/visitation with the twins
every other weekend; the order did not grant Alan’s request for sole legal custody
of the twins meaning the parties continued to share joint custody under the prior
juvenile paternity case orders.
Approximately one month later, the parties entered into an agreed
order that provided Mary would continue to have visitation every other weekend,
but then switching Mary’s weekends. Just above her signature line on the order
appears a handwritten statement from Mary that, “I am not in any way in
agreement to only having visitation with my children every other weekend,
however, that being the circumstances at this time, I am in agreement to switching
the weekends in place currently.” The agreed order did not address legal custody
of the twins.
In December 2018, Mary filed a motion in the family court seeking to
“change custody, set a holiday schedule and to expand parenting time.” An
affidavit from Mary attached to the motion stated, in relevant part, that the parties
share joint custody of the children. The parties attended mediation, which was
unsuccessful, and the motion was re-noticed several times. The family court
ultimately conducted a hearing on Mary’s motion on March 10, 2021.
At the hearing, Mary testified on her own behalf and also called
Alan’s parents to testify that they supported her having more time with the twins.
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Mary also presented evidence that while in Alan’s care the twins were tardy
numerous times during the non-traditional instruction (“NTI”) days Jefferson
County Public Schools (“JCPS”) used as a replacement for regular in-person
school while in the midst of the COVID-19 pandemic. Alan also testified at the
hearing. For his part, Alan stated that he had no problem continuing to share joint
custody of the twins with Mary, but he believed it was not in the twins’ best
interests to split their week between two households when they were thriving under
the parties’ current schedule. Alan and his attorney also noted that they had only
been supplied the JCPS attendance records by Mary about an hour before the
hearing and had not had an opportunity to investigate their accuracy; however,
during his testimony, Alan maintained that the twins had a much better attendance
than the documents introduced by Mary reflected.
After the hearing, but before an order was entered, Mary filed a notice
with the family court which indicated the JCPS attendance information she
obtained and presented at the hearing was inaccurate and that the twins, in fact, had
maintained a very high attendance rate during NTI. The notice was accompanied
by additional documentation from JCPS.
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Despite Mary having filed a notice of correction, the family court’s
order made findings based, in part, on the inaccurate JCPS records submitted
during the hearing.3 Specifically, the family court found that Mary:
provided testimony and documentary evidence that the
children have been consistently late for school during this
school year that has been solely in the NTI format. She
expressed that this is one major concern underlying her
motion to modify the parenting schedule. She testified
that she wants to be able to ensure that the children are
able to get up and participate in school as well as help
them with homework, etc.
Then, citing KRS 403.270, the family court concluded that Alan had failed to rebut
the statutory presumption in favor of joint custody and equal parenting time.
Specifically, the family court pointed out that Alan had not presented any
“testimony or evidence that expanded patenting time for [Mary] would be harmful,
in any way, to the children.” In contrast, the family court noted that even though
Mary testified that she would have to rely on grandparents or other family
members to care for the twins during the week due to her work schedule, this fact
alone was not sufficient to rebut the presumption that equal parenting time was in
the twins’ best interests.
3
The family court likely inadvertently overlooked Mary’s notice since it was filed after the
hearing as its order makes no mention of Mary having corrected the record.
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Based on its findings and conclusions, the family court ordered the
parties to share parenting time according to a “2-2-3 schedule” with Mary having
the twins on Mondays and Tuesdays and Alan having them on Wednesdays and
Thursdays with the parties to alternate weekends. Given the more equal division
of parenting time, the family court ordered that Mary’s child support obligation
was to cease with neither party being ordered to pay child support to the other.
The family court’s order referenced only a modification of timesharing and child
support. It did not address legal custody.
This appeal by Alan followed.
II. STANDARD OF REVIEW
Generally, in family court matters our review is governed by the
clearly erroneous standard. CR4 52.01. Under this standard, the family court’s
findings will not be disturbed unless there exists no substantial evidence in the
record to support them. See M.P.S. v. Cabinet for Human Resources, 979 S.W.2d
114, 116 (Ky. App. 1998) (citing V.S. v. Commonwealth, Cabinet for Human
Resources, 706 S.W.2d 420, 424 (Ky. App. 1986)). Clear and convincing proof
does not necessarily mean uncontradicted proof, but rather requires proof of a
probative and substantial nature that is sufficient to convince ordinarily prudent
minded people. Id. at 117. However, whether the family court correctly applied
4
Kentucky Rules of Civil Procedure.
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the law to the facts is a question of law that we review de novo. E.K. v. T.A., 572
S.W.3d 80, 82 (Ky. App. 2019) (citation omitted).
III. ANALYSIS
Before examining Alan’s assignments of error, we must address an
important preliminary issue. As commonly occurs in family court cases, the
parties have been using the terms custody, timesharing, and visitation
interchangeably throughout these proceedings. This has created some confusion in
the record.
Custody and timesharing are distinct matters. Pennington v. Marcum,
266 S.W.3d 759 (Ky. 2008), is particularly instructive in distinguishing these two
concepts. In Pennington, the Kentucky Supreme Court explained that the
distinguishing feature of custody is not the amount of time spent with each parent,
but whether decision-making is vested in either one parent or both. Id. at 764.
However, “[t]o most people, having custody means having possession of the
child.” Id. at 767. This confusion has led parents to often request a modification
of custody or timesharing when they are actually seeking a modification of the
other. Id. Pennington makes clear that, regardless of the terminology used to
describe a timesharing arrangement, custody concerns only who has the authority
to make decisions regarding the child, not the amount of time the child spends with
each parent. Id.-7-
Although Mary’s motion used the term custody, based on the
testimony and argument presented at the hearing before the family court, it is clear
to us that in substance Mary was seeking a modification of timesharing to give her
more time with the twins.5 Modification of timesharing is determined pursuant to
KRS 403.320(3). Pennington, 266 S.W.3d at 765. That statute provides: “The
court may modify an order granting or denying visitation rights whenever
modification would serve the best interests of the child; but the court shall not
restrict a parent’s visitation rights unless it finds that the visitation would endanger
seriously the child’s physical, mental, moral, or emotional health.” KRS
403.320(3).
Here, instead of applying the best interest standard of KRS 403.320,
the family court applied the rebuttable presumption standard for initial custody and
timesharing determinations under KRS 403.270. This is in contravention of the
Kentucky Supreme Court’s recent holding in Layman v. Bohanon, 599 S.W.3d 423(Ky. 2020). Therein, the Court held that while the presumption applies in initial
custody/timesharing decisions, it does not apply when only modification of
timesharing is sought. Id. at 431.
5
At the beginning of the hearing, Mary’s attorney informed the family court that she was there to
set aside Alan’s designation as primary residential parent, to expand her parenting time, and for a
modification of child support. No mention was made of a change in custody, despite the
language contained in Mary’s motion. Further, Alan testified that he did not have a problem
continuing to share joint custody with Mary.
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[W]e hold that a modification of visitation or timesharing
is governed by KRS 403.320, rather than the standard for
an initial custody determination as set forth in KRS
403.270. Accordingly, the recently added presumption
of joint custody and equal parenting time in KRS
403.270 applies to custody determinations, but it does not
apply to modifications of visitation or timesharing.
In the present case, the parties sought and the
family court ordered a modification of timesharing. As a
result, KRS 403.320(3) should have applied. Under that
statute, the family court could modify the timesharing
arrangement if it first found that the modification was in
the best interests of the children, or it could restrict
timesharing (i.e., order a “less than reasonable”
timesharing) if it first found that the children’s physical,
mental, moral or emotional health was seriously
endangered. Thus, the Court of Appeals should have
considered whether the modified timesharing
arrangement was “less than reasonable.” Under our case
law, less than reasonable does not necessarily mean less
than fifty percent parenting time. See, e.g., [French v.
French, 581 S.W.3d 45, 50 (Ky. App. 2019)].
Nevertheless, the Court of Appeals referred to the
standard for custody determinations in KRS 403.270 and
concluded that any reduction in a fifty-fifty timesharing
arrangement was less than reasonable or, in other words,
a restriction. Stated another way, the Court of Appeals
concluded that any change in the parties’ equal
timesharing arrangement required a finding that visitation
would seriously endanger the children’s physical, mental,
moral, or emotional health. We believe that this was an
improper conflation of the standards for custody
determination under KRS 403.270 and timesharing
modification under KRS 403.320. As noted above, these
statutes set forth separate standards for distinct stages of
a custody proceeding.
Id. (emphasis omitted).
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The family court’s order plainly indicates that it understood that it was
being asked to modify timesharing not to make an initial custody determination.
To this end, it stated that Mary “has moved the Court to modify the current
parenting schedule [which had been in place for several years] and allow her more
time with the children.” Since Mary was seeking a modification of the timesharing
ordered in 2016, the family court erred when it shifted the burden to Alan and
applied KRS 403.270’s rebuttal presumption.
Additionally, we find Mary’s argument categorizing the family
court’s 2021 order as an initial custody decision unavailing. While no prior order
referring to custody appears in the 2015 action, the parties were awarded joint
custody of the twins in 2012 as part of the juvenile paternity actions. See KRS
406.051(2) (“The District Court may exercise jurisdiction, concurrent with that of
the Circuit Court, to determine matters of child custody and visitation in cases
where paternity is established as set forth in this chapter. The District Court, in
making these determinations, shall utilize the provisions of KRS Chapter 403
relating to child custody and visitation.”).
On remand, the family court should apply KRS 403.320 to decide
Mary’s request for modification of the prior order on timesharing. Since Mary is
the movant, she bears the burden of proof, not Alan. Additionally, on remand the
family court should take notice of Mary’s correction regarding the twins’
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attendance records and her concession that the twins maintained a satisfactory
attendance record while in Alan’s care. We make no conclusions about whether
the evidence (without reliance on the inaccurate attendance records) supported or
will support a modification in timesharing under the standards of KRS 403.320.
IV. CONCLUSION
For the foregoing reasons, the order of the Jefferson Family Court is
vacated and remanded for proceedings not inconsistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Justin R. Key Erin S. Kennedy Startzman
Jeffersonville, Indiana Louisville, Kentucky
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