Mark W Carr v. Jessica J Carr ( 2022 )

RENDERED: MARCH 18, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1780-MR
MARK W. CARR APPELLANT
APPEAL FROM TRIGG CIRCUIT COURT
v. HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 17-CI-00097
JESSICA J. CARR APPELLEE
AND
NO. 2019-CA-1781-MR
JESSICA J. CARR CROSS-APPELLANT
CROSS-APPEAL FROM TRIGG CIRCUIT COURT
v. HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 17-CI-00097
MARK W. CARR CROSS-APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: This is a heavily litigated domestic relations matter
involving the custody of a minor child. Mark W. Carr has appealed, and Jessica J.
Carr has cross-appealed, from the Trigg Circuit Court’s findings of fact,
conclusions of law, and final custody order entered August 8, 2019, and from the
October 9, 2019, orders ruling on their respective post-trial motions. Mark is
seeking review of the parenting-time schedule pursuant to Kentucky Revised
Statutes (KRS) 403.270(2), while Jessica seeks review of the award of joint
custody. Having carefully considered the record and the applicable law, we affirm
the joint custody award and vacate the portion of the custody order related to
parenting time.
Jessica and Mark were married on October 23, 2010, in Marshall
County, Kentucky. One child, a son, was born of the marriage in 2012. The
parties separated on May 23, 2017, when Jessica and the then-four-year-old child
moved out of the marital residence in Cadiz, Kentucky. She filed a petition to
dissolve the marriage the same day. In the petition, Jessica sought the restoration
of her non-marital property, a division of marital property and debts, sole custody
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of the child, visitation for Mark, and child support. Mark responded to the petition,
seeking its dismissal. He also sought temporary and permanent custody of the
child, child support from Jessica, the assignment of his non-marital property, and a
just allocation of marital property.
Mark filed a separate motion for temporary custody on June 7, 2017,
under the newly enacted “shared parenting” legislation calling for a rebuttable
presumption of temporary joint custody and equal parenting time in KRS
403.280(2). This new legislation, he said, would be effective at the time the
hearing on his motion was to be held. Mark sought temporary joint custody and
equal timesharing in alternating weeks, unless they agreed otherwise. In response,
Jessica sought sole temporary custody of the child and argued that Mark should
have visitation limited to one supervised, 24-hour period per week until a full
custodial evaluation had been completed, based upon the recommendation of
licensed clinical and forensic psychologist Dr. Sarah Shelton. Jessica based her
motion upon concerns about the parenting dynamic between Mark and the child.
The parties reached a temporary agreement as to timesharing until the temporary
custody hearing was held.
On July 5, 2017, Jessica moved the court to compel Mark to execute a
Health Insurance Portability and Accountability Act (HIPAA) release to allow
their marriage counselor, licensed marriage and family therapist Jan Harvey, to
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testify, and to permit her to depose Ms. Harvey and her individual therapist,
Donald Harvey, Ph.D. Mark had objected to her taking Ms. Harvey’s deposition,
claiming his privilege pursuant to Kentucky Rules of Evidence (KRE) 506 and
507. She argued that the assertion of this privilege is not valid in custody cases
where the mental state of the parties is at issue and constituted Mark’s attempt to
prevent the court from hearing credible evidence regarding his shortcomings in his
ability to parent the child. In his response, Mark continued to assert the counselor-
client privilege in KRE 506.
By order entered July 18, 2017, the circuit court determined that
Mark’s sessions with Ms. Harvey were for marriage counseling, rather than for
therapy, and likened such sessions to settlement discussions, which are privileged
pursuant to KRE 408. The court held that public policy favored protecting the
privilege in situations involving marriage counseling. Therefore, the court denied
Jessica’s motion to compel. It ordered that Jessica could take Ms. Harvey’s
deposition, but any testimony must be limited to that involving Jessica on her
waiver of privilege. In addition, the circuit court directed the parties to submit the
names of two proposed custodial evaluators. Mark proposed David L. Feinberg,
Ph.D., or Mary Fran Davis, licensed clinical social worker (LCSW), as his choices
for custodial evaluators. Jessica proposed Dr. Shelton as the custodial evaluator.
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Jessica and Mark were both cross-examined by deposition on July 14,
2017. Jessica testified that she thought Mark was irresponsible and did not always
act in the child’s best interests. He did not set a good example for the child by
going in to work late, and he did not have any rules and was very permissive with
the child. He was also unwilling to help out around the house, although she noted
she was very conventional and traditional in what the roles of the man and woman
were to be in a marriage and family. Jessica said she saw herself as the nurturer
and that she was eager to quit her job to stay home with the child. She discussed
the family sleeping situation and admitted that she would take the child from
Mark’s bed and bring him back to her bed. Other issues Jessica mentioned
included that until the previous summer, Mark would have the child, who was
three and one-half years old, sit in his lap exclusively during meals and spoon feed
him, that Mark did not want her parents to keep the child, and that she did not get
along with Mark’s parents. She described his mother as overbearing, nosy, and
intrusive. She believed Mark’s parents undermined her authority with the child
and were too permissive with him.
Jessica testified that, around December 2015 or January 2016, it
became obvious the marriage was not working. She began marriage counseling
but said the primary concerns involved parenting. She first had contact with Dr.
Shelton in May 2017. Jessica and Dr. Shelton went over her concerns about the
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parenting dynamic between Mark and the child, which included irresponsibility, no
rules, being permissive, and his unhealthy attachment with the child. Jessica’s
philosophy as to parenting was that there should be a balance of love, warmth, and
affection with rules, structure, and control. She said Mark went overboard with the
television and allowed the child to treat her (Jessica) however he (the child) wanted
to, including hitting her without Mark verbally reprimanding him. Jessica thought
Mark had emotionally abused the child by insisting the child sleep in his bed, even
when Mark was sick, and telling the child that Jessica’s parents did not love him
and would not come to visit. Jessica testified that she and the child were currently
sharing a bed at her parents’ house while they waited for their new home to be
renovated. The child would have his own room in the new house.
In his deposition, Mark testified that many of the parenting issues
arose from Jessica wanting to exclude Mark from the child’s upbringing. Both
Mark and Jessica testified about violence between them, with Jessica generally
being the one to start physical violence, such as slapping and hitting.
The court held a temporary custody hearing on July 27, 2017. The
court heard testimony from several witnesses, including Mark, Jessica, Mark’s
mother, and Mark’s work supervisor. Jessica’s concerns with Mark included lack
of discipline, behavior issues, permissiveness, deviant behavior on Mark’s part,
and possible sexual abuse, although she had never reported any suspected abuse to
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the Cabinet for Health and Family Services (the Cabinet) or filed a domestic
violence petition on behalf of herself or the child. Jessica did report that domestic
violence started on their honeymoon, when she slapped him after he called her an
ugly name. She had slapped him again on more than one occasion, and he
retaliated and hit her, including when she was pregnant.
Jessica testified that she was concerned with Mark’s permissiveness
and lack of discipline and structure when the child was with Mark and his parents.
The child, she said, had to be “reprogrammed” after visitations (and earlier when
the child had spent time with Mark and the grandparents over weekends prior to
their separation while she was working). They would permit the child to watch
PG-13 movies and eat whatever he wanted. The child would throw tantrums and
be disrespectful to her and her parents for days after he returned. As to Mark’s
parenting ability, Jessica described what she considered to be Mark’s unhealthy
attachment to the child. She stated that Mark had encouraged nursing behaviors
between him and the child well after breastfeeding had stopped, which she thought
was odd and a form of sexual abuse; that the child would ask Mark to hold his
penis when he was urinating long after he had been potty trained; that the child
would sit on Mark’s lap at dinner and he would spoon feed him when he was able
to feed himself; and that Mark would tell the child that her parents loved his
cousins more than him and were not coming to see him. She also testified that
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Mark had a webcam and camera in the marital residences and had installed a dash
cam in Jessica’s car. She felt like she was being spied on during the marriage.
On August 14, 2017, the circuit court entered a temporary custody
order. At that time, Jessica lived in Benton, Kentucky, with her parents, and was
employed on a part-time basis as a physician’s assistant in Paducah. Mark
continued to live in Cadiz and was employed as a medical imaging systems
administrator. The family had lived in both Kentucky and in Nashville, Tennessee,
during the marriage. In the order, the circuit court made several findings related to
how the parties describe themselves and their parenting styles:
14. [Jessica] describes herself as a “Type A personality”
and it was clear from her testimony that she is the
dominant partner in the marriage. She also believes she
is clearly the better and more active parent because of her
devotion to the child. She believes that [Mark] is too
passive and that his parents are too “indulgent and
permissive” with the child.
15. [Mark] admits that he is more “laid back” and rather
than seek conflict, attempts to avoid conflict.
....
17. The Court believes that [Jessica’s] philosophy for the
child is correct: structure and stability are certainly in a
child’s best interests.
18. [Jessica] believes that [Mark] has no structure and no
discipline and that his desire to be a “friend” with his son
would not be good for the child if [Mark] were a joint
custodian with equal time-sharing.
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19. [Jessica] believes that [Mark] tries to undermine her
authority in disciplining the child and gave
examples[.] . . .
20. It is clear that both parents love their child and it is
just as clear that they have diametrically opposed
parenting styles.
The court went on to discuss the “disturbing allegations” Jessica made that involve
the child’s nursing or latching behavior with Mark, which Mark denied. The court
also discussed the child’s sleeping arrangements (“It was customary for the child to
share the bedroom with the parties and when they lived in Cadiz, he slept in the
same bed with both parties. In Nashville, the child did have a separate bed but
generally slept with one of the parents in that bed, generally [Jessica.]”) as well as
the alleged bathroom behavior between Mark and the child.
The court considered the new presumption in KRS 403.280(2) and
found it was in the best interest of the child for the parents to be joint custodians
during the pendency of the action. It held that, “[d]espite the current inability of
the parties to cooperate and despite their different personality and parenting styles,
the Court believes that two intelligent, well-educated, and loving people can learn
to communicate with each other for the best interests of the child they conceived
together.” However, the court found that it was in the child’s best interests that
Jessica be the primary residential parent, recognizing that the parents were in “high
conflict mode.” And “[w]ith [Jessica’s] allegations in regard to inappropriate
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behavior with the child,” the court opted to take “a cautious approach” on
parenting time to ensure the child’s welfare. It also found that it would not be in
the child’s best interests to be in two separate preschools. Therefore, Mark’s
parenting time was to be as set out in the Visitation Guidelines of the 56th Judicial
Circuit. The court ultimately denied Jessica’s motion for temporary sole custody
and granted Mark’s motion for temporary joint custody.
By separate order, the court denied Jessica’s designation of Dr.
Shelton as a custodial evaluator, noting its concerns about her lack of
independence as an evaluator as her only contact had been with Jessica. And by
order entered September 13, 2017, the court appointed Dr. Feinberg as the custody
evaluator in this case and ordered a custody evaluation.
Thereafter, the record reflects ongoing conflicts between Mark and
Jessica as to Mark’s ability to visit and communicate with the child, how the child
should be raised, and sexual abuse allegations raised by Jessica. This began with
Jessica’s notice received on October 18, 2017, that she was denying visitation
under KRS 403.240 based on her belief that the child would be endangered. By
order entered October 23, 2017, the court ordered the parties to comply with the
prior temporary custody and timesharing order. In addition, the court appointed a
guardian ad litem (GAL) to represent the interests of the child in the litigation.
During the course of the litigation, reports were filed in 2017 and 2018 with the
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Cabinet regarding Mark’s alleged sexual abuse against the child (bathing with bare
hands and tongue kissing). The allegations were unsubstantiated, and the
associated district court cases were later dismissed.
In addition, the record reflects disagreements as to what information
could be used in the case and provided to others for review. Jessica moved the
court for a protective order pursuant to Kentucky Rules of Civil Procedure (CR)
26.03 regarding evaluator Dr. Feinberg’s request for information from Dr. Shelton
and the Cabinet. She believed Mark’s counsel had tainted Dr. Feinberg’s
independence by responding to an email from him rather than addressing it with
her counsel. Jessica went on to address her concerns with Dr. Feinberg, including
that Mark had designated him. The court ruled that Dr. Feinberg could not have
access to the records or reports of either Dr. Shelton or Ms. Harvey as either
Jessica or Mark had asserted their respective privilege.
Jessica filed a motion in limine to preclude Mark from introducing
testimony from Cabinet social worker Alexia Pritchett or any of the evidence
related to the Cabinet investigations she took part in, or to limit the evidence to
testimonial only as to what she witnessed. Jessica claimed that Ms. Pritchett’s
actions and conduct during her investigations were against her. Jessica also filed a
motion in limine to exclude the testimony of Dr. Feinberg because the probative
value of his testimony on custody and visitation was outweighed by the prejudice
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she would suffer under KRE 403 and because his testimony would not be based on
sufficient facts under KRE 702. She based this motion on the financial
relationship Dr. Feinberg had with the Cabinet as well as his interview with Ms.
Pritchett during his evaluation without any indication she had engaged in unlawful
conduct.
In November 2018, Mark moved the court for costs and fees pursuant
to KRS 403.220 based upon Jessica’s financial resources as well as her obstructive
tactics and conduct that caused him to incur substantial attorney fees. He also filed
a statement of issues to be addressed at the final hearing. These included
precluding Jessica from relitigating the sexual abuse allegations as they had
already been litigated at the district court level; that the court should award joint
custody and award him no less than equal parenting time; that the court should
appoint a parenting coordinator; and that Mark should be awarded child support
due to Jessica’s income.
Just prior to the trial date, Jessica moved the court for a continuance,
citing difficulties obtaining certain records from the Cabinet related to Ms.
Pritchett and Mark’s failure to provide video and audio recordings he had made
over the last year. Jessica stated that Mark had been recording every interaction
between Mark, Jessica, and the child, which she believed was inappropriate and
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harmful to the child. She continued to present concerns regarding Dr. Feinberg.
Mark objected to the motion, which the court denied shortly thereafter.
The court held a bench trial on November 19 and 20, 2018, and
February 7, 2019. Jessica testified first. She stated that the child was currently
having significant tantrums and did not want to go to school, which was a drastic
change in how he had been previously. He lacked interest in things that he enjoyed
before. Paris Goodyear-Brown had been the child’s therapist for a year on a
weekly basis, and Jessica had been seeing Ms. Harvey as her personal counselor
for two and a half years for marital turmoil and parenting concerns. She had not
been doing well over the last year. She and Mark had been going to marital
therapy from the late summer of 2016 through March 2017, when Mark quit
attending counseling. Since the last hearing, Jessica testified that Mark had
continued to record or at least hold up his phone around Jessica and the child. She
thought this was harassment and caused distress to her and her family.
Jessica stated that she was not able to co-parent with Mark. Jessica
hired a private investigator to follow Mark while he had the child with him. She
found out Mark was spending most of his time with the child while at his parents’
house. She believed Mark had a peer-to-peer relationship with the child rather
than a parent-to-child relationship. While he did play with the child, Mark did not
do anything responsible with him. The child’s behavior issues began to worsen in
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December 2017 after he spent a week with Mark. She did not believe the child felt
safe at Mark’s house because he did not exhibit bad behavior there. The child felt
more comfortable with telling and showing her how he felt. His behaviors
included tantrums, hitting, screaming, and biting her, her parents, and the dog. She
believed it was hard for the child to go between two homes with differing
parenting styles.
Jan Harvey testified next. She is a licensed marriage and family
therapist in Tennessee. The Carrs were referred to her by her husband for marriage
counseling in March or April 2016. She administered a Taylor-Johnson
Temperament Analysis when she began to see them, and she testified about the
scoring based on the answers given by Mark and Jessica. The court allowed her to
testify as to the report because it was based on the data from the assessment. She
described Mark’s results as showing he was passive aggressive. She closed her file
with Mark and continued her therapy with Jessica in April 2017 on a bi-weekly
basis, during which they addressed Jessica’s parenting as well as her anxiety
around the custody situation. They had also discussed co-parenting. She believed
Jessica would be willing to cooperate with whatever the court ordered. She
described Jessica as a healthy person and an excellent mother. Her anxiety would
dissipate as time went on.
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On cross-examination, Ms. Harvey stated that she did not write down
everything that was discussed during the sessions in her notes, but she did include
the important information as to the counseling of the client. Jessica reported
possible sexual abuse or inappropriate sexual behavior between Mark and the child
in August 2017. She was not sure if this was the first time it was reported, but if it
was the first time she recorded it, it probably was.
Dr. Michael Jenuwine testified next. He is clinical professor of law at
the University of Notre Dame and a private practitioner at a forensic psychological
practice. He performs custodial evaluations and reviews evaluations performed by
others related to Daubert.1 He reviewed Dr. Feinberg’s custody evaluation and the
records he reviewed, and he expressed concern about the reliability of some of the
tests Dr. Feinberg used. He stated that Dr. Feinberg failed to address any boundary
issues between Mark and the child.
Dr. Feinberg testified next. He is a licensed clinical psychologist who
has been performing custodial evaluations for 35 years. At the time of the hearing,
he had performed 500 evaluations. He found the child to be a normal little boy,
more like Mark described him rather than as Jessica described him. He described
Jessica as defensive, controlling, and possessive. He reported that no one had seen
1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993).
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anything that looked like sexual abuse and that the war between the parents was
the child’s biggest threat. The child felt tremendous pressure and was acting out
this pressure. He recommended that both parents continue therapy and that a
parenting coordinator be used. Dr. Feinberg recommended that the court award
joint custody. If Jessica got sole custody, he believed that in a very short time
Mark would have no visitation and never see the child again. He believed the child
needed more time with Mark. He suspected the amount of pressure the child felt
was echoed by his behavioral issues, including regressive nursing and bathroom
behaviors.
Jessica moved to exclude Dr. Feinberg’s testimony pursuant to
Daubert based upon testimony from him and Dr. Jenuwine that the tests he used
did not meet the appropriate standard. Mark argued that only a few pieces of the
overall custodial evaluation were at issue. Dr. Feinberg explained that he was
relying on other sources that were not subject to Jessica’s Daubert motion. The
GAL cited to Dr. Feinberg’s testimony that he did not rely on most of the testing.
The GAL introduced the testimony of Paris Goodyear-Brown that had
been taken at a hearing on July 3, 2018, in the juvenile action (Case No. 18-J-
00022-001). Ms. Goodyear-Brown is a licensed clinical social worker with the
Nurture House, a family treatment center in Franklin, Tennessee. In this role, she
began therapy with the child in the summer of 2017. She discussed the bathing
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and kissing allegations and different behaviors (sexual and psychosomatic) the
child had been exhibiting over the course of their sessions. She believed the child
was anxious over being put in the middle of the parents’ divorce case. She noted
there was deterioration in the child’s behavior when he spent extended times away
from Jessica.
The court entered several orders following the first two days of the
trial. As to Jessica’s Daubert challenge to Dr. Feinberg’s testimony (based upon
Dr. Jenuwine’s testimony that Dr. Feinberg’s evaluation did not meet relevant
professional standards as it was too subjective), the court disagreed. It found that
Dr. Feinberg was qualified as an expert based upon his knowledge, experience, and
education, and that his methods were reliable.
In December 2018, Jessica filed a motion with the court related to
Mark’s continued use of his phone to video record or seem to video record the
child when he was with her, in contravention of the court’s bench order that he
should not do so. Jessica stated Mark’s actions were intentional and deliberately
done in violation of the court’s order to harass and taunt her and/or her parents.
Although Mark denied that he had violated the court’s rule, the court ordered him
to show cause why he should not be held in contempt the morning of the third day
of the trial. Jessica filed other similar motions in January related to Mark’s actions
at a doctor’s appointment for the child and for holding an iPad on his vehicle’s
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dashboard pointed at her. Jessica believed Mark’s actions were meant to provoke
her and her family and were causing significant internal distress.
The custody hearing continued on February 7, 2019. Mark testified
on direct examination. He opted to have all visitations with the child at his
parents’ house after his interview with Ms. Pritchett to prevent sexual abuse
accusations. He did not see any tantrums, vomiting, bed wetting, or hitting, like
Jessica reported. Mark had been working on adaptive coping skills, goals for
personal growth outside of his role as a father, and on co-parenting skills through
therapy with Dr. Sheehan and online classes. He stated that he would co-parent
with Jessica. He thought the child needed both parents and that Jessica would
continue to make decisions on her own and not include him in anything. He
wanted to be the primary parent.
Cabinet Supervisor Sarah Andrus testified next, and through her
testimony, Mark sought to introduce Ms. Pritchett’s investigative reports as routine
business records. Ms. Andrus was Ms. Pritchett’s supervisor, and they consulted
on the investigations. She stated that Ms. Pritchett was under subpoena to testify at
the hearing but had the flu and would not be able to appear. Ms. Pritchett had
previously testified by deposition; the court said it was up to Mark whether to
introduce deposition testimony. Jessica objected to the introduction of the reports,
stating that it was not the appropriate way to introduce what Ms. Pritchett did,
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although she acknowledged that this was probably a routine business record
exception. The court overruled the objection and permitted the reports to be
admitted. The reports established that the complaints were unsubstantiated. Ms.
Andrus stood by Ms. Pritchett’s investigation and the results.
Jessica testified in rebuttal. She stated that the child was still not
doing well and was having bathroom issues, crying, and vomiting. She did not
agree that the fighting between her and Mark was causing stress for the child. She
stated she would not compromise with Mark unless it was in the child’s best
interests. She had rules and structure at her house, unlike Mark. Due to her
concerns, she wanted supervised visitation for Mark.
Following the third day of trial, the court entered an order of
submission and summarized its bench rulings. The court had declined Mark’s
request that it interview the child as he had already been subjected to interviews in
connection with the case, and it did not find that either party had intentionally or
willfully violated its prior court orders and therefore did not hold either party in
contempt. The court also ordered the parties to file briefs.
In her brief, Jessica requested that she be awarded sole custody of the
child, stating that the child’s condition had deteriorated over the course of the
litigation and that he was experiencing heightened levels of anxiety. She also
stated that she and Mark could not cooperate in parenting the child. As to
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visitation, Jessica requested that the court adopt the recommendation of supervised
visitation due to the risk of harm of sexual abuse based upon Mark’s boundary
issues with the child. She believed that Mark was the root cause of the child’s
problems and that Mark had done nothing to address these concerns.
In his brief, Mark requested that the parties be awarded joint custody,
with him receiving the primary amount of parenting time and Jessica receiving
parenting time pursuant to the court’s Guidelines. He argued that the child’s
condition had worsened under Jessica’s care as the primary custodian due to her
alienating behaviors toward Mark and her own deteriorating mental and emotional
health.
The GAL also filed a brief, recommending that the parties should be
awarded joint custody and that a parenting coordinator be appointed. He
recommended that the child should continue to live primarily with Jessica as she
could provide full-time care for him; that Mark should have increased,
unsupervised visitation; and that the child should remain in counseling.
In her reply brief, Jessica disputed Mark’s assertions that she was
mentally unfit and questioned Mark’s emotional stability. She also pointed to
Mark’s alienating behaviors, including video recording Jessica and her family in
the presence of the child.
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On August 8, 2019, the circuit court entered its findings of fact,
conclusions of law, and final custody order. After considering the factors set out in
KRS 403.270(2), the court set forth its findings as to the relevant factors in
paragraph 118 as follows:
a. [Jessica] wants to be sole custodian and restrict
[Mark’s] visitation to supervised by a professional,
non-family member. [Mark] is willing to continue to
try to co-parent with [Jessica]. [Mark] thinks joint
custody is in the best interests of the child with
[Mark] being the Primary Residential Parent and
[Jessica’s] parenting time being as set out in the
Visitation Guidelines of the 56th Judicial Circuit.
b. The Court did not inquire about the child’s wishes
from the child because the child has been interviewed
too often already.
c. The child apparently has a good, close, loving
relationship with both parents.
d. The motivation of the parents – [Jessica’s] main goal
is to protect and control her child. However, her
behaviors alienate the child from [Mark] and diminish
his role in the child’s life. She justifies that
motivation based upon the multiple incidents of
“sexualized behavior” she has noted. There is no
credible evidence that any of it actually took place
with [Mark]. [Mark] is partially motivated by the role
the child plays in fulfilling [Mark’s] life needs in a
father-child relationship, but primarily the Court
believes [Mark] is concerned about the best interests
of the child.
e. The child’s adjustment and continuing proximity to
home, school, and community. The child has
apparently adjusted well to both homes and to the
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Marshall County School and community. He has not
developed much community awareness in Trigg
County, but were [Mark] to be the Primary
Residential Parent, the child is young enough going
into the first grade where he could easily adjust.
Fortunately, the two communities are less than an
hour apart.
f. The mental and physical health of the parents – both
parties are in generally good health. [Mark] admits
being somewhat passive and depressed over the
ongoing struggle over the child. [Jessica] has been
diagnosed by Dr. Frankel with adjustment disorder
with anxiety. She takes prescribed medicine for her
mental health. She seems to be fixated on “rescuing”
the child from [Mark] and controlling the child (and
[Mark’s]) behavior.
g. Domestic violence is not a factor in this case.
(h., i., j.) – De facto custodianship is not a factor in this
case.
k. The likelihood that a party will allow the child
frequent, meaningful, and continuing contact with the
other parent – there is no believable evidence that
continuing contact with either parent would endanger
the child’s health or safety. It is clear from [Jessica’s]
continuing pattern of conduct in regard to the child
and [Mark’s] relationship, that there is little likelihood
that if she were the sole custodian the child would
have frequent, meaningful, or continuing contact with
[Mark].
Based on these factors, the court determined that joint custody was still in the
child’s best interest so that the parents would have an equal opportunity to raise
their child. However, the court found that the presumption for equal parenting
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time had been rebutted and designated Jessica as the primary residential parent.
The court then set Mark’s visitation in accordance with the 56th Judicial Circuit’s
Guidelines. It went on to order the parties to provide information regarding child
support and denied Mark’s motion for an award of costs and fees, stating that both
parties had the ability to meet their own financial responsibilities.
Jessica moved the court to vacate its judgment and for a new trial
pursuant to CR 59 or, in the alternative, for proceedings in lieu of a new trial
pursuant to CR 59.07 to take additional testimony from Ms. Pritchett or to consider
her deposition testimony. Jessica argued that the court improperly admitted the
Cabinet reports carte blanche pursuant to the business record and public records
and reports exceptions to the hearsay rule (KRE 803(6) and (8)). She stated she
was entitled to a new trial under CR 61.02 due to manifest injustice based on the
admission of these reports in lieu of Ms. Pritchett’s testimony. Jessica filed a
separate motion the same day pursuant to CR 52 and CR 59, arguing that the
circuit court erroneously relied upon the opinions and conclusions of Dr. Feinberg
as his methodology was not reliable and erroneously admitted Ms. Pritchett’s
Cabinet report over her hearsay objection. Jessica also sought additional findings
of fact. She specifically asked that the award of joint custody be vacated, stating
that it was not supported by sufficient evidence and that the evidence, instead,
supported an award of sole custody to her.
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Mark also filed a motion to alter, amend, or vacate the final custody
order pursuant to CR 52.02, CR 59.01, CR. 59.05, and CR 59.07. As to the
custody order, Mark disputed the circuit court’s failure to award him equal or near-
equal parenting time, despite the rebuttable presumption in KRS 403.270(2). Mark
argued that the key factors the court considered, which were either neutral or in
Mark’s favor, did not support the court’s conclusion that the presumption of equal
parenting time was rebutted. Therefore, he requested the court to amend the final
custody order to reflect a 50-50 parenting time or one that maximized the amount
of time the child spent with each parent. Alternatively, he requested additional
findings as to the specific reasons and facts that called for a deviation. Mark also
disputed the court’s denial of his motion for fees and costs.
The court heard arguments on the parties’ post-trial motions on
September 26, 2019. Mark argued that Jessica knew she could have moved to
introduce Ms. Pritchett’s deposition testimony but chose not to because it
contained information she did not like. Mark said it was a discovery deposition not
meant to be introduced. The GAL did not believe timesharing needed to be altered
as there was enough evidence to overcome the presumption that equal timesharing
was in the best interest of the child.
On October 9, 2019, the court entered orders ruling on the pending
motions. As to Jessica’s motions, the court upheld its decision as to Dr. Feinberg’s
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testimony and the admission of the Cabinet reports. The court made additional
findings of fact related to the reports to the effect that it did not consider the
opinions and conclusions in the Cabinet reports, but only the statements of facts
that were observed. In addition, the court recognized that Mark apparently made
some inconsistent statements, but it did not lead the court to believe that he was
grooming the child for potential inappropriate sexual behaviors. As to Ms.
Pritchett’s testimony, the court agreed with Mark that it was Jessica’s trial strategy
not to move to introduce Ms. Pritchett’s discovery deposition. It also found that
Jessica’s counsel was able to point out deficiencies in Ms. Pritchett’s work through
the cross-examination of her supervisor, Ms. Andrus. Additional testimony would
not have been helpful to the court, as it did not rely on any of Ms. Pritchett’s
opinions. The court ultimately denied Jessica’s motion.
As to Mark’s motion, the court agreed with him that it had
improvidently and prematurely denied his previous motions for an award of
attorney fees and costs. The court vacated that portion of the findings of fact and
indicated that it would defer ruling on this issue until it had sufficient testimony as
to the financial circumstances of the parties. The court did not, however, change
its ruling on the parenting time schedule, stating that there was sufficient evidence
in the record to rebut the statutory presumption.
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Mark appealed, and Jessica cross-appealed, from the circuit court’s
orders, which we shall now review. Mark seeks review of the circuit court’s
decision not to order equal timesharing between him and Jessica, while Jessica
seeks review of the award of joint custody as opposed to an award of sole custody
to her, along with several evidentiary issues.
Our standard of review is set forth in Jones v. Jones, 510 S.W.3d 845,
848-49 (Ky. App. 2017):
When reviewing child custody cases, we engage in
a two-step analysis. These two steps each have a
different standard of review. First, the trial court’s
findings of fact are examined for clear error, and findings
may be set aside when they lack substantial evidence to
support them. Moore v. Asente, 110 S.W.3d 336, 354
(Ky. 2003). If, after review, this Court determines the
factual findings do not present clear error, the analysis
shifts to an examination of the trial court’s legal
conclusions, looking for abuse of discretion using a de
novo standard. Heltsley v. Frogge, 350 S.W.3d 807, 808
(Ky. App. 2011). Abuse of discretion occurs when a
ruling is “arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
Both parties address the application of KRS 403.270(2), which was
amended during the course of the action to create a rebuttable presumption that
joint custody and equal parenting time is in the child’s best interest (the applicable
addition to the statutory language is italicized below):
The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be
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given to each parent and to any de facto custodian.
Subject to KRS 403.315, there shall be a presumption,
rebuttable by a preponderance of evidence, that joint
custody and equally shared parenting time is in the best
interest of the child. If a deviation from equal parenting
time is warranted, the court shall construct a parenting
time schedule which maximizes the time each parent or
de facto custodian has with the child and is consistent
with ensuring the child’s welfare. The court shall
consider all relevant factors including:
(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;
(g) A finding by the court that domestic violence
and abuse, as defined in KRS 403.720, has been
committed by one (1) of the parties against a
child of the parties or against another party.
The court shall determine the extent to which
the domestic violence and abuse has affected
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the child and the child’s relationship to each
party, with due consideration given to efforts
made by a party toward the completion of any
domestic violence treatment, counseling, or
program;
(h) The extent to which the child has been cared
for, nurtured, and supported by any de facto
custodian;
(i) The intent of the parent or parents in placing the
child with a de facto custodian;
(j) The circumstances under which the child was
placed or allowed to remain in the custody of a
de facto custodian, including whether the parent
now seeking custody was previously prevented
from doing so as a result of domestic violence
as defined in KRS 403.720 and whether the
child was placed with a de facto custodian to
allow the parent now seeking custody to seek
employment, work, or attend school; and
(k) The likelihood a party will allow the child
frequent, meaningful, and continuing contact
with the other parent or de facto custodian,
except that the court shall not consider this
likelihood if there is a finding that the other
parent or de facto custodian engaged in
domestic violence and abuse, as defined in KRS
403.720, against the party or a child and that a
continuing relationship with the other parent
will endanger the health or safety of either that
party or the child.
KRS 403.315, which became effective the same day as the 2018 amendment to
KRS 403.270, provides:
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When determining or modifying a custody order pursuant
to KRS 403.270, 403.280, 403.340, 403.740, the court
shall consider the safety and well-being of the parties and
of the children. If a domestic violence order is being or
has been entered against a party by another party or on
behalf of a child at issue in the custody hearing, the
presumption that joint custody and equally shared
parenting time is in the best interest of the child shall not
apply as to the party against whom the domestic violence
order is being or has been entered. The court shall weigh
all factors set out in KRS 403.270 in determining the best
interest of the child.
And KRS 403.320 provides, in relevant part:
(1) A parent not granted custody of the child and not
awarded shared parenting time under the presumption
specified in KRS 403.270(2), 403.280(2), or
403.340(5) is entitled to reasonable visitation rights
unless the court finds, after a hearing, that visitation
would endanger seriously the child’s physical, mental,
moral, or emotional health. Upon request of either
party, the court shall issue orders which are specific as
to the frequency, timing, duration, conditions, and
method of scheduling visitation and which reflect the
development age of the child.
(2) If domestic violence and abuse, as defined in KRS
403.720, has been alleged, the court shall, after a
hearing, determine the visitation arrangement, if any,
which would not endanger seriously the child’s or the
custodial parent’s physical, mental, or emotional
health.
We shall first address Jessica’s arguments in her cross-appeal as to the
propriety of the circuit court’s decision to award joint custody rather than sole
custody to her. Jessica asserts that the court abused its discretion in failing to
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consider KRS 403.315 as to her and the child’s safety and well-being before
determining that the presumption for joint custody had not been rebutted. She also
raises two evidentiary issues.
Jessica’s first argument addresses whether the circuit court properly
applied the statutes in determining that joint custody was appropriate. She
specifically argues that the circuit court failed to consider her and the child’s safety
and well-being due to domestic violence. She goes on to state that Mark’s conduct
in recording videos of her with his phone constituted stalking behavior that met the
definition of domestic violence and abuse under KRS 403.720(1). This behavior,
she concludes, was not conducive to a joint custody arrangement between her and
Mark. She also argues that the circuit court failed to consider the child’s
deterioration in assessing his safety and well-being.
We decline to consider this argument as Jessica did not make any type
of domestic violence allegation below, nor did she seek a domestic violence order.
And she did not include any statement about preservation in her briefs pursuant to
CR 76.12(4)(c)(v) or specifically include this issue in her prehearing statement.
CR 76.03(8) states that “[a] party shall be limited on appeal to issues in the
prehearing statement except that when good cause is shown the appellate court
may permit additional issues to be submitted upon timely motion.” See also
Martin v. Pack’s Inc., 358 S.W.3d 481, 487 (Ky. App. 2011) (“[The appellant] has
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failed to cite where he preserved this argument by presenting the facts to the trial
court. ‘It is well-settled that a trial court must be given the opportunity to rule in
order for an issue to be considered on appeal, and the failure of a litigant to bring
[a matter] to the trial court’s attention is fatal to that argument on appeal.’ Baker v.
Weinberg, 266 S.W.3d 827, 835 (Ky. App. 2008).”). We also note that the circuit
court found that domestic violence was not a factor in this case, and Jessica did not
seek review of this finding. Accordingly, we agree with Mark that Jessica did not
preserve this issue for our review and decline to address it further.
Next, Jessica contends that the circuit court failed to correctly apply
the decision in Squires v. Squires, 854 S.W.2d 765 (Ky. 1993), as to the effect on
the child of their inability to co-parent. In Squires, the Supreme Court of Kentucky
stated:
The General Assembly has determined that [the concept
of joint custody] is viable and it is our duty to apply the
statutory framework in a manner which gives effect to
legislative intent. H.O. Hurley Co. v. Martin, 267 Ky.
182, 101 S.W.2d 657 (1937). From the language used,
we believe the General Assembly intended to inform
courts of their option to award joint custody in a proper
case without mandating its use in any case. Implicit in
the authorization to award joint custody is that the court
do so after becoming reasonably satisfied that for the
child the positive aspects outweigh those which are
negative. We see no significant difference between the
analysis required with respect to joint custody than the
analysis required when the court grants sole custody. In
either case, the court must consider all relevant factors
and formulate a result which is in the best interest of the
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child whose custody is at issue. Legislative authorization
of joint custody merely gives the trial court another
alternative if such appears to be appropriate.
The parties have debated the significance of
parental agreement and willingness to cooperate at the
time of the custody determination. While we have no
doubt of the greater likelihood of successful joint custody
when a cooperative spirit prevails, we do not regard it as
a condition precedent. To so hold would permit a party
who opposes joint custody to dictate the result by his or
her own belligerence and would invite contemptuous
conduct. Moreover, the underlying circumstance, the
parties’ divorce, is attended by conflict in virtually every
case. To require goodwill between the parties prior to an
award of joint custody would have the effect of virtually
writing it out of the law.
Id. at 768-69. She also cites to Gertler v. Gertler, 303 S.W.3d 131, 135 (Ky. App.
2010), in which this Court stated:
When determining an award of child custody, KRS
403.270(2) directs the circuit court to give equal
consideration to both parents and to award custody in
accordance with the best interests of the children
involved. The statute further permits an award of joint
custody if it is in the children’s best interests. KRS
403.270(5). However, there is no statutory preference for
an award of joint custody, an arrangement which entails
joint decision-making and significant participation by
both parents in the upbringing of their children. Squires
v. Squires, 854 S.W.2d 765, 769 (Ky. 1993).
Unfortunately for Jessica, with the 2018 amendments to KRS
403.270, the General Assembly opted to include a statutory presumption of joint
custody, and Jessica’s citations to the language in these cases to the contrary does
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not support her argument. We agree with the circuit court that parental
cooperation is not a condition precedent for an award of joint custody and that the
circuit court did not abuse its discretion in determining that the presumption for
joint custody had not been rebutted in this case, especially as Jessica’s own
conduct contributed to the strained co-parenting relationship between her and
Mark.
We shall next address Jessica’s arguments related to the circuit court’s
evidentiary rulings. We shall review these rulings for abuse of discretion:
[The appellant’s] argument is based upon the
family court’s decision to exclude evidence from trial,
therefore, it is his burden on appeal to demonstrate: (1)
the substance of the excluded evidence; (2) that the
family court abused its discretion by excluding it; and (3)
that there was a substantial possibility the court would
have reached a different verdict if the evidence had not
been excluded. See KRE 103;[2] Goodyear Tire &
Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)
(explaining the standard to reviewing a trial court’s
ruling admitting or excluding evidence is abuse of
2
In relevant part, KRE 103 provides:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected;
and
...
(2) Offer of proof. If the ruling is one excluding evidence, the
substance of the evidence was made known to the court by
offer or was apparent from the context within which questions
were asked.
(Footnote 10 in original.)
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discretion, and the test is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles); see also Hart v.
Commonwealth, 116 S.W.3d 481, 483-84 (Ky. 2003).
Lewis v. Fulkerson, 555 S.W.3d 432, 439 (Ky. App. 2017).
Jessica first argues that the circuit court abused its discretion when, in
conjunction with the temporary custody hearing, it excluded evidence of Mark’s
mental health treatment by Ms. Harvey pursuant to Mark’s assertion of the KRE
506 privilege. KRE 506 states, in relevant part, as follows:
(b) General rule of privilege. A client has a privilege to
refuse to disclose and to prevent any other person
from disclosing confidential communications made
for the purpose of counseling the client, between
himself, his counselor, and persons present at the
direction of the counselor, including members of the
client’s family.
(c) Who may claim the privilege. The privilege may be
claimed by the client, his guardian or conservator, or
the personal representative of a deceased client. The
person who was the counselor (or that person’s
employer) may claim the privilege in the absence of
the client, but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule for
any relevant communication:
(1) If the client is asserting his physical,
mental, or emotional condition as an
element of a claim or defense; or, after
the client’s death, in any proceeding in
which any party relies upon the condition
as an element of a claim or defense.
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(2) If the judge finds:
(A) That the substance of the
communication is relevant
to an essential issue in the
case;
(B) That there are no available
alternate means to obtain the
substantial equivalent of the
communication; and
(C) That the need for the
information outweighs the
interest protected by the
privilege. The court may
receive evidence in camera
to make findings under this
rule.
The circuit court based its ruling to uphold Mark’s privilege on its
determination that Mark’s sessions with Ms. Harvey were for marriage counseling,
rather than for therapy, and it likened these sessions to settlement discussions,
which are privileged pursuant to KRE 408. It also stated that public policy favored
protecting the privilege in situations involving marriage counseling. On Jessica’s
motion, the court subsequently permitted Ms. Harvey to release the parties’
personality testing and results for in camera review, which the court determined
were not subject to Mark’s claimed privilege and about which Ms. Harvey was
permitted to testify at the custody hearing.
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Jessica argues that a parent is not permitted to assert this privilege in a
custody case where the mental state of the parties is at issue, citing KRS
403.340(3)(b),3 Bond v. Bond, 887 S.W.2d 558, 560-61 (Ky. App. 1994), and
Atwood v. Atwood, 550 S.W.2d 465 (Ky. 1976). However, we note that both of
these cases address the application of the psychotherapist-patient privilege and
arose from situations where a person was being treated by a psychiatrist for a
mental or emotional illness, not joint counseling for marital issues.
Mark points out that the court left the door open for Jessica to revisit
the ruling that communications made during marital counseling sessions including
Mark were privileged. Jessica was then successful in obtaining the release of the
personality testing for herself and Mark from Ms. Harvey. Jessica called Ms.
Harvey as a witness at the final custody hearing, where she was permitted to testify
about the personality testing as well as her therapy notes of Jessica’s sessions with
her beginning in April 2017. During this testimony, Ms. Harvey confirmed that
the first discussion she had with Jessica concerning Mark’s alleged sexual abuse
did not occur until August 2017.
We agree with Mark that 1) Jessica was successful in obtaining the
records she requested; 2) the earlier records including Mark would not have
3
We presume Jessica meant to cite to KRS 403.340(4)(b), which concerns the mental and
physical health of individuals in modification situations.
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supported Jessica’s claims that the sexual abuse allegations had been disclosed
earlier due to Ms. Harvey’s testimony that this had not been disclosed until much
later; and 3) Jessica failed to place these earlier records in the record by avowal or
seek reconsideration of the circuit court’s initial ruling, thereby failing to properly
preserve the issue for review. In addition, we agree with Mark that Jessica failed
to show that the exceptions in KRE 506 applied in that she did not establish that
the records she sought had anything to do with physical, emotional, or mental
health conditions that would be relevant to the custody decision. Accordingly, we
find no abuse of discretion in the circuit court’s decision to uphold Mark’s claim of
confidentiality as to Ms. Harvey’s records.
Next, Jessica argues that the circuit court abused its discretion in
permitting the introduction of Ms. Pritchett’s reports through her supervisor’s
testimony pursuant to KRE 803(6) and (8), the business records and public records
and reports exceptions to the rule against hearsay. These sections exclude from the
hearsay rules, even when a declarant is available:
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that
business activity to make the memorandum, report,
record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness,
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unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this
paragraph includes business, institution, association,
profession, occupation, and calling of every kind,
whether or not conducted for profit.
(A) Foundation exemptions. A custodian or
other qualified witness, as required
above, is unnecessary when the evidence
offered under this provision consists of
medical charts or records of a hospital
that has elected to proceed under the
provisions of KRS 422.300 to 422.330,
business records which satisfy the
requirements of KRE 902(11), or some
other record which is subject to a
statutory exemption from normal
foundation requirements.
(B) Opinion. No evidence in the form of an
opinion is admissible under this
paragraph unless such opinion would be
admissible under Article VII of these
rules if the person whose opinion is
recorded were to testify to the opinion
directly.
....
(8) Public records and reports. Unless the sources of
information or other circumstances indicate lack of
trustworthiness, records, reports, statements, or other
data compilations in any form of a public office or
agency setting forth its regularly conducted and
regularly recorded activities, or matters observed
pursuant to duty imposed by law and as to which there
was a duty to report, or factual findings resulting from
an investigation made pursuant to authority granted by
-38-
law. The following are not within this exception to
the hearsay rule:
(A) Investigative reports by police and other
law enforcement personnel;
(B) Investigative reports prepared by or for a
government, a public office, or an agency
when offered by it in a case in which it is
a party; and
(C) Factual findings offered by the
government in criminal cases.
Jessica takes issue with the contents of Ms. Pritchett’s investigative
Cabinet reports that were introduced without her testimony, claiming that the
information contained within them was unreliable and that the reports included
double hearsay. However, we agree with Mark that the circuit court properly
permitted the introduction of these reports pursuant to KRE 803 through Ms.
Pritchett’s supervisor when Ms. Pritchett was unavailable to testify at the hearing
due to sickness. We note that the court did not rely on any opinions Ms. Pritchett
expressed in these reports.
Although the court discussed the possibility of introducing Ms.
Pritchett’s deposition testimony at the trial, Jessica did not choose to do so. CR
32.01 addresses the use of depositions and provides in relevant part:
At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition,
so far as admissible under the rules of evidence applied
as though the witness were then present and testifying,
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may be used against any party who was present or
represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the
following provisions:
....
(c) The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court
finds the witness: . . . (x) is prevented from attending the
trial by illness, infirmity, or imprisonment[.]
We agree with the circuit court that Jessica’s decision not to introduce the
deposition was a matter of trial strategy and that it was too late to attempt to do so
in a post-trial motion when she did not receive the result she wanted. In addition,
Jessica had the opportunity to cross-examine Ms. Andrus during her testimony.
Finally, Jessica failed to identify what statements in the reports constituted
inadmissible opinion testimony or hearsay. Therefore, we find no error or abuse of
discretion in the court’s decision to permit the introduction of Ms. Pritchett’s
investigative reports under these circumstances.
Jessica listed an additional issue on page 26 of her brief; namely,
whether the circuit court erred in allowing and considering the testimony of Dr.
Feinberg. But as Mark points out, Jessica did not address this issue at all in the
remainder of her briefs. Therefore, we shall not address this issue.
Accordingly, we find no error or abuse of discretion in the circuit
court’s decision to grant joint custody in this matter.
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We shall now review the issue raised in Mark’s direct appeal; namely,
whether the circuit court failed to properly apply the presumption of joint custody
with equal timesharing before applying the best interest standards in KRS
403.270(2) and in failing to apply these factors to maximize his parenting time
with the child. As Mark pointed out, Jessica spent very little time addressing his
direct appeal in her brief.
As stated earlier, the General Assembly amended KRS 403.270(2)
during the course of this action to create a rebuttable presumption that joint
custody and equal parenting time is in the child’s best interest:
The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian.
Subject to KRS 403.315, there shall be a presumption,
rebuttable by a preponderance of evidence, that joint
custody and equally shared parenting time is in the best
interest of the child. If a deviation from equal parenting
time is warranted, the court shall construct a parenting
time schedule which maximizes the time each parent or
de facto custodian has with the child and is consistent
with ensuring the child’s welfare. The court shall
consider all relevant factors including [list omitted].
The issue Mark raises is one of statutory interpretation, which is a question of law
that we review de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth,
Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). The Supreme Court of
Kentucky recently addressed the new presumption in KRS 403.270(2), noting as
follows:
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We first acknowledge that the equal timesharing
presumption of KRS 403.270(2) is new to Kentucky and
unique among the custody laws of other states, thereby
limiting the precedent available to us. However, we
believe that our canons of statutory construction,
combined with our timesharing precedent, can resolve
this issue. For example, we “must interpret the statute
according to the plain meaning of the act and in
accordance with the legislative intent.”
Layman v. Bohanon, 599 S.W.3d 423, 430 (Ky. 2020) (citing Floyd Cty. Bd. of
Educ. v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997)).
The crux of Mark’s argument is that the circuit court failed to apply
the statutory presumption that equal parenting time was in the child’s best interest
or craft a parenting time schedule that would maximize his time with the child.
We agree with Mark.
In Pittman v. Estelita, No. 2019-CA-000333-ME, 2020 WL 2095903(Ky. App. May 1, 2020), cited by Mark, this Court addressed the application of the
amended version of KRS 403.270(2):4
While the family court’s Order would easily pass
muster under the prior version of KRS 403.270(2), the
statute was amended effective July 14, 2018, a little over
six months before the family court entered its Order. The
new amendment altered the statutory framework for
determining custody and timesharing insomuch as it
created a rebuttable presumption that joint custody and
4
CR 76.28(4)(c) provides that “[o]pinions that are not to be published shall not be cited or used
as binding precedent in any other case in any court of this state; however, unpublished Kentucky
appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if
there is no published opinion that would adequately address the issue before the court.”
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equal timesharing is in a child’s best interest. As
amended, KRS 403.270(2) is clear, that the court shall
begin with a presumption of joint custody and equal
parenting time and in the event that deviation is
warranted, the court shall create a schedule maximizing
each party’s time with the child.
Having carefully reviewed the order at issue, we
cannot discern that the family court applied the
presumption before embarking on its analysis of the
individual best interest factors. Likewise, we cannot
ascertain that the family court crafted its parenting time
schedule so as to maximize each party’s time with Child.
It appears from the face of the order that the family court
preemptively addressed the individual best interest
factors listed in KRS 403.270(2)(a)-(k), before
considering the presumption. Additionally, the family
court did not state how the parenting time granted to
either party would serve to maximize each party’s time
with Child, given the deviation from equal parenting
time.
Because it is not apparent from the face of the
order that the family court applied the new version of
KRS 403.270(2), we must vacate and remand the family
court’s order as it relates to parenting time. On remand,
the family court must begin its analysis with the
rebuttable presumption that equal parenting time is in
Child’s best interest. Should the family court determine
either party has presented sufficient evidence to
overcome the presumption, it must expressly so state and
provide supportive factual findings. It must craft a
parenting time schedule designed to maximize Child’s
time with each parent consistent with ensuring Child’s
welfare.
Pittman, 2020 WL 2095903, at *5-6 (footnote omitted). See also George v.
George, No. 2020-CA-1057-MR, 2021 WL 4343434, at *4 (Ky. App. Sep. 24,
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2021) (“On remand the circuit court must apply the presumption in favor of equal
parenting time as set forth in KRS 403.270(2). After considering all the evidence
in relation to the best interest factors, the circuit court should only deviate from the
presumption if it concludes that equal parenting time is not in the children’s best
interests. It must then render written findings of fact to support its ultimate
conclusions. While the findings need not be overly detailed, they must be
sufficient for any later reviewing court to determine that the circuit court engaged
in the proper analysis and to identify the evidence it relied upon in reaching its
ultimate conclusions.”); and Nichols v. Nichols, No. 2020-CA-0837-MR, 2021 WL
4343472, at *1 (Ky. App. Sep. 24, 2021) (“KRS 403.270(2) creates a rebuttable
presumption in favor of equal timesharing. The circuit court’s order does not
contain any findings to explain why it chose to deviate from the presumption. As
such, it does not comply with Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011),
and Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011), which require written findings of
fact in all matters affecting child custody and timesharing. Accordingly, we must
vacate and remand the order as related to timesharing.”).
As in the above cited cases, our review of the custody order
establishes that the circuit court misapplied the amended version of the statute.
Here, the circuit court first performed a best interests analysis before concluding
that the presumption for equal parenting time had been rebutted. The court’s
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earlier analysis of these same best interest factors led it to conclude that the
presumption of joint custody had not been rebutted. But the circuit court failed to
point to what factors led it to reach the conclusion that the presumption of equal
parenting time had been rebutted. Rather, it simply stated its conclusion that “the
presumption for equal parenting time has been rebutted at this time.” And in the
order denying Mark’s motion to alter, amend, or vacate, the court merely stated
that “a reading of the existing Findings of Fact and the evidence in the record is
sufficient to show that there is evidence of substance to rebut the statutory
presumption of shared parenting time considering all relevant factors . . . including
those set out in KRS 403.270(2).” This is insufficient as it provides nothing
specific for this Court to review in order to determine whether the presumption of
equal shared parenting time had been rebutted, and there is nothing in the record to
suggest that the court designed a parenting schedule to maximize the child’s time
with Mark.
Accordingly, we must hold that the circuit court erred as a matter of
law related to the issue of parenting time and vacate the order awarding Mark
visitation pursuant to the Guidelines for visitation/time-sharing of the 56th Judicial
Circuit. On remand, the court:
must begin its analysis with the rebuttable presumption
that equal parenting time is in Child’s best interest.
Should the family court determine either party has
presented sufficient evidence to overcome the
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presumption, it must expressly so state and provide
supportive factual findings. It must craft a parenting time
schedule designed to maximize Child’s time with each
parent consistent with ensuring Child’s welfare.
Pittman, 2020 WL 2095903, at *6.
For the foregoing reasons, the portion of the final custody order of the
Trigg Circuit Court as to parenting time is vacated, and this matter is remanded to
the circuit court for further proceedings in accordance with this Opinion. The
portion of the final custody order awarding joint custody is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS- BRIEFS FOR APPELLEE/CROSS-
APPELLEE: APPELLANT:
James G. Adams III James L. Deckard
Hopkinsville, Kentucky Lexington, Kentucky
Julia T. Crenshaw William F. McGee, Jr.
Hopkinsville, Kentucky Smithland, Kentucky
Thomas Banks II
Louisville, Kentucky
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