Eric Jason Wilson v. Kathryn Wilson ( 2021 )

RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1710-ME
ERIC JASON WILSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 18-CI-500350
KATHRYN WILSON APPELLEE
AND NO. 2019-CA-1829-ME
ERIC JASON WILSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 18-CI-500350
KATHRYN WILSON APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE: Eric Jason Wilson (“Jason”) appeals from the
Jefferson Circuit Court’s order modifying a parental timesharing arrangement
between Jason and Kathryn Wilson (“Kathryn”) and recalculating the amount of
child support owed by Jason to Kathryn. Jason also appeals the Jefferson Circuit
Court’s order denying his motion to compel Kathryn to submit to a hair follicle
drug screen. Finding no error as to either of the circuit court’s orders, we affirm.
BACKGROUND
Jason and Kathryn are the parents and joint custodians of two
children: E.W., who was born in 2010 (“Older Child”), and A.W., who was born
in 2016 (“Younger Child”). Jason and Kathryn were married in 2008, and Jason
filed for a legal separation in February of 2018. The court granted a decree of legal
separation on June 26, 2018 (the “Separation Decree”). As part of the Separation
Decree, the court ordered that the parties would have joint custody of the two
children.
In terms of parental timesharing, the Separation Decree stated that, per
agreement of the parties, Older Child would reside with Jason at his military
assignment in South Korea while Younger Child would reside with Kathryn in
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Kentucky. Further, the Separation Decree ordered Jason to pay $1,000.00 per
month to Kathryn in child support. The Separation Decree stated that both the
“[r]esidential custody” and the amount of child support would be reviewed – and
possibly modified – by the court in June of 2019, at which time Jason expected to
return to the United States from South Korea upon his retirement from the military.
Thereafter, on July 31, 2018, Jason made a motion to compel Kathryn
to take a hair follicle drug test. In his motion, Jason stated that he believed
Kathryn’s drug use to be “apparent through his contact with her and in observing
her.” Jason further alleged that Kathryn had a history of drug use and indicated in
his motion his belief that a drug screening was necessary to determine if Kathryn
was endangering Younger Child through her alleged use of illicit drugs.
The court ordered Kathryn to submit to a urine drug test, and she
ultimately provided the negative results of such a test on August 8, 2018.
Thereafter, the court entered an order on August 22, 2018, denying Jason’s motion
for a hair follicle test and finding insufficient probable cause for such a seizure as
required under the Fourth Amendment to the United States Constitution.
On February 5, 2019, Jason filed a renewed motion to compel
Kathryn to submit to a hair follicle drug test, alleging that since the date of his first
motion to compel Kathryn to submit to a hair follicle drug screen, Kathryn had
admitted in a text message to him that she had used drugs. Specifically, Jason
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submitted a text message exchange with his motion in which Kathryn stated: “I
mean I could lose my other daughters and my job over marijuana I smoked 3
months ago. Seriously.” On February 11, 2019, the court entered another order
denying Jason’s motion to compel Kathryn to submit to a hair follicle drug test,
again finding no good cause to justify such a test.
On March 22, 2019, Kathryn filed a “Motion to Enter Agreement of
Parties as an Order of the Court.” The motion contained two handwritten
statements – one purporting to be signed by Jason and the other by Kathryn – and
both dated June of 2018. The purported agreements stated that Kathryn was
allowing Older Child to stay with Jason for one calendar year, beginning on June
16, 2018. On April 2, 2019, the court entered an order denying Kathryn’s motion,
noting that the handwritten agreements pre-dated the Separation Decree and that
portions of such agreements had already been incorporated into the final
Separation Decree.
On May 16, 2019, Kathryn filed a motion to compel Jason to return
Older Child from South Korea. In such motion, she again relied on the written
agreements from June of 2018 to argue that the parties had only agreed to have
Older Child live with Jason in South Korea for one calendar year.
Thereafter, Jason filed a motion on June 28, 2019, to convert the
Separation Decree to a decree of dissolution. The court did so, converting the
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Separation Decree into a decree of dissolution on July 8, 2019 (the “Dissolution
Decree”). The court specifically ordered in the Dissolution Decree that all
provisions of the Separation Decree were incorporated by reference and were
binding on the parties unless modified by further order of the court.
After the court entered the Dissolution Decree, Jason filed a motion to
modify child support on July 9, 2019, stating that Kathryn was voluntarily
underemployed. Jason argued that, because the court should impute a full-time
wage to Kathryn and account for the fact that Older Child was primarily residing
with Jason full-time, Jason should only be paying $539.00 per month in child
support payments to Kathryn under the Kentucky Child Support Guidelines.
Additionally, on August 14, 2019, Jason filed a motion to modify
parenting time pursuant to Kentucky Revised Statutes (KRS) 403.270, asking that
both children live with him in South Korea during the school year and with
Kathryn during the summer. Jason again voiced concerns over Kathryn’s alleged
drug use, as well as his concerns that Kathryn had violated the court’s orders not to
speak about the litigation with the children or to disparage Jason to the children.
Jason further alleged that Kathryn was cohabitating with a drug addict, that her
older children were negative influences, and that Older Child’s academics had
flourished during her time in South Korea with Jason.
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After a hearing on September 6, 2019, the court entered an order on
September 25, 2019, finding that the parties had agreed that parenting time would
be subject to modification as of June of 2019 and that modification of the parental
timesharing arrangement was necessary to ensure that the children had liberal
access to both parents. The court began its analysis by noting that equal parenting
time was not feasible so long as Jason remained in South Korea, that both parents
provided stable and appropriate homes for the children, and that the court had no
concerns with the children’s safety or wellbeing in either parent’s home. The court
found Jason’s accusations that Kathryn drank excessively and allegations regarding
Kathryn’s drug use to be unsupported, particularly based on the fact that Jason was
proposing that the children live with Kathryn during the summer. The court
further found that the only evidence of Kathryn’s drug use was the message to
Jason in which she stated that she could lose her children and her job “over
marijuana I smoked 3 months ago.”
The court ultimately concluded that it would be in both children’s best
interest to live primarily with Kathryn, finding that Kathryn had been the
children’s main caregiver, and the children had lived in Kentucky for most of their
lives. The court found that the children had extended family, friends, schools, and
healthcare providers in Kentucky, and that it could be traumatizing to Younger
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Child to place her with Jason for months at a time without in-person contact with
Kathryn, as she had not had sufficient time to build a relationship with Jason.
Therefore, the court ordered Older Child to be returned to Kentucky
within thirty days of entry of its order. The court further ordered that Jason would
have parenting time with both children for a 10-day period over Older Child’s
winter break and for a nine-day period over Older Child’s spring break. Further,
the court ordered that both children would reside with Jason during the summer
beginning in June of 2020. The court noted it anticipated that, upon Jason’s
retirement from the military and return to the United States, the parties would
transition to a more equal parenting schedule.
Additionally, the court increased Jason’s child support obligation.
Particularly, the court found that the Kentucky Child Support Guidelines set forth
in KRS 403.312 required that Jason pay child support of $1,367.00 per month,
which was a 15% increase in his current obligation. The court found that it could
not impute income to Kathryn under the statute, as she was caring for a child of the
parties under the age of four. After Younger Child’s fourth birthday, however, the
court ordered that Jason’s child support obligation would be reduced to $1,275.00
per month.
On October 7, 2019, Jason filed a motion for additional findings of
fact, to alter, amend, or vacate the court’s order or, in the alternative, for a new
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trial. The court denied Jason’s motion in an order dated November 6, 2019. Jason
filed a timely appeal of those orders to this Court on November 12, 2019.
Additionally, on November 25, 2019, Jason filed a third motion to
compel Kathryn to take a hair follicle drug test based on the court’s finding in its
September 25, 2019 order that Kathryn had stated in a message to Jason that she
could lose her children and job over marijuana she had smoked three months prior.
Jason argued that, because Kathryn had not taken a subsequent drug screen since
the court’s finding of drug use, such finding constituted probable cause for the
court to compel Kathryn to take a hair follicle test.
In an order dated December 3, 2019, the court denied Jason’s motion
to compel the hair follicle drug screen, and Jason filed an appeal on December 9,
2019. Upon Jason’s motion, this Court consolidated the two appeals via an order
entered on March 13, 2020.
Additional facts will be discussed as they become relevant.
ANALYSIS
1. Modification of Parental Timesharing
Jason first argues that the court did not address the “mandatory
requirement to consider all factors under KRS 403.270.” We note that KRS
403.270 deals with an initial custody determination, which is “a separate stage of a
custody dispute” from a modification of visitation or timesharing. Layman v.
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Bohanon, 599 S.W.3d 423, 430 (Ky. 2020). As stated by a panel of this Court, “[a]
modification of [parental] timesharing maintains the basic custodial framework
agreed upon by the parties but changes the amount of time that each parent spends
with the child within that framework.” Humphrey v. Humphrey, 326 S.W.3d 460,
464 (Ky. App. 2010). As a result, “motions to modify visitation/timesharing are
brought under KRS 403.320(3), which permits modification when it ‘would serve
the best interests of the child.’” Id. (citing Pennington v. Marcum, 266 S.W.3d
759, 769 (Ky. 2008)).
In the present case, the parties sought - and the family court ordered -
a modification of timesharing and not a modification of the parties’ custody
arrangement. As a result, the court correctly applied KRS 403.320(3) and thus
could modify the timesharing arrangement if it found that the modification was in
the best interests of the children. See Layman, 599 S.W.3d at 431.
Having clarified the correct application of KRS 403.320(3), as
opposed to KRS 403.270(2), to the case sub judice, we next note that the circuit
court has broad discretion in modifying parental timesharing. Pennington, 266
S.W.3d at 769. Accordingly, we “will only reverse a trial court’s determinations as
to visitation if they constitute a manifest abuse of discretion, or were clearly
erroneous in light of the facts and circumstances of the case.” Drury v. Drury, 32
S.W.3d 521, 525 (Ky. App. 2000) (citation omitted). Furthermore, “[d]ue regard
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shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.” Humphrey, 326 S.W.3d at 463 (citation omitted).
In this case, as discussed above, the modification of the timesharing
schedule was governed by KRS 403.320(3) and the best interest standard. On this
point, Jason argues that the circuit court failed to consider certain facts related to
Kathryn’s motivations in participating in the custody proceeding, Older Child’s
adjustment to and accomplishments she had obtained in South Korea, Older
Child’s relationship with her parents, and how Older Child would adjust to
returning to Kentucky after her time in South Korea.
We find, however, that the court discussed relevant facts that
supported the modification and that were both supported by substantial evidence
and sufficient to satisfy the best interests of the children standard. For example,
the court explained that Kathryn had been the children’s primary caregiver for the
majority of their lives, that the children’s extended family and friends were in
Kentucky, and that it could be traumatizing for Younger Child to be with Jason for
long periods of time without contact with Kathryn.
The bulk of Jason’s arguments regarding the best interests of the
children involve disagreements with the court’s findings of fact, those facts which
the court determined were important in the case, and the insertion of Jason’s own
opinions concerning the relevance of particular facts. However, as previously
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discussed, we review the court’s findings under the “clearly erroneous” standard,
whereby “[r]egardless of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a contrary finding . . . appellate
courts should not disturb trial court findings that are supported by substantial
evidence.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations and
footnotes omitted). Here, the court’s findings concerning the modification of
parental timesharing were supported by substantial evidence, and we therefore
affirm the circuit court on this issue.
2. Modification of Child Support
Jason next argues that the court erred when it increased the amount of
child support payments owed by Jason to Kathryn. However, his primary
argument is that the court erred in increasing Jason’s child support obligation
because the only motion to modify child support was filed by Jason and not
Kathryn. As noted by Kathryn, however, the issue of child support “is subject to
reconsideration by the trial court whenever this subject is properly presented.”
Farmer v. Farmer, 506 S.W.2d 109, 111 (Ky. 1974) (citations omitted).
Particularly, KRS 403.213(1) defines when and upon what
circumstances a child support order may be modified. The statute specifically
states that “[t]he provisions of any decree respecting child support may be
modified . . . only upon a showing of a material change in circumstances that is
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substantial and continuing.” Therefore, while the statute mandates that child
support orders may only be modified after a motion for modification, the statute
does not require that the motion be filed by a specific party.
Here, per KRS 403.213(1), Jason filed a motion alleging a substantial
and continuing material change in circumstances that created a presumption for a
modification in child support. While Jason’s wish may have been that such
modification was a decrease in the amount of support he owed rather than an
increase, the issue of child support modification was properly before the court and
we therefore affirm the circuit court as to this issue.
3. Hair Follicle Drug Screen
Lastly, Jason argues that the circuit court erred in denying his motion
to compel Kathryn to submit to a hair follicle drug test. While we agree that
governmentally-compelled drug testing implicates the right to be free of
unreasonable searches and seizures under the Fourth Amendment to the United
States Constitution, we do not believe the situation in this case to require a full
analysis of constitutional law. Here, because the circuit court denied Jason’s
motion to compel such a search and seizure, our standard of review is akin to the
standard we would use to review a court’s denial of what was - essentially - a
motion to compel discovery. An appellate court reviews a circuit court’s rulings
on both evidentiary issues and discovery disputes for an abuse of discretion.
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Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006)
(footnote and citation omitted).
In the present case, we see no abuse of the court’s discretion in its
decision to deny Jason’s motion to compel Kathryn to submit to the hair follicle
drug screen. Such motion was based in large part upon Kathryn’s history prior to
the parties’ marriage and children, pictures of Kathryn, the drug history of
Kathryn’s previous boyfriend, and the drug usage of Kathryn’s friend. Moreover,
the one drug test that Kathryn performed was negative for any substances. We see
no abuse of the court’s discretion in this situation.
CONCLUSION
For the foregoing reasons, the orders of the Jefferson Circuit Court are
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Allen McKee Dodd J. Clark Baird
Louisville, Kentucky Louisville, Kentucky
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