Marsha Swan v. George Gatewood ( 2023 )

RENDERED: JUNE 9, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0202-MR
MARSHA SWAN APPELLANT
APPEAL FROM FAYETTE FAMILY COURT
v. HONORABLE LUCINDA CRONIN MASTERTON, JUDGE
ACTION NO. 16-CI-00653
GEORGE GATEWOOD; AND
JASON RAPP APPELLEES
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EASTON, AND ECKERLE, JUDGES.
ECKERLE, JUDGE: Marsha Lorraine Swan (Mother) appeals from an order of
the Fayette Family Court granting the motions of George Gatewood (Father) to
enforce the parties’ custody agreement and for attorney fees. Mother argues that
the custody agreement grants her sole decision-making authority concerning their
child’s education, and her decisions are not subject to review. We conclude that
the Family Court did not err in finding that the agreement as a whole requires
Mother’s decisions to be reasonable and not prejudicial to Father’s rights as a joint
custodian. We further conclude that the Family Court did not clearly err in finding
that Mother’s choice of a school in Jefferson County was unreasonable and in
limiting Mother’s educational choices to a school in Fayette County. Finally, we
find no abuse of discretion in the Family Court’s award of attorney fees to Father.
Hence, we affirm both orders.
Mother and Father are the parents of G.B.S. (Child), who was born in
August 2015. Mother and Father were never married or lived together. However,
Father filed an acknowledgement of paternity upon Child’s birth, and he is listed as
Child’s father on the birth certificate.
Although Mother and Father initially cooperated with custody and
visitation matters following Child’s birth, disputes arose between the parties within
a few months. On February 16, 2016, Mother filed a petition seeking sole custody
of Child, with Father receiving only limited and supervised visitation. Father
responded with a petition requesting joint custody with “regular” timesharing
under the Standard Visitation Guidelines adopted in that circuit.
From the time of Child’s birth, Mother raised Child to be bilingual
and spoke to Child in both French and English. Child attended pre-school at
Providence Montessori School from August 2019 through March 2020, after which
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time the school transitioned to online learning due to the COVID-19 pandemic.
Mother also enrolled Child in an online learning program where the instructor was
bilingual in French. However, the parents continued to disagree about where Child
would attend kindergarten. Mother wanted Child to attend a school with a French
language program. She identified Whitney Young Elementary (“Whitney
Young”), in Louisville, as her preferred school. Father wanted Child to attend
Ashland Elementary School, which is in Fayette County.
While these discussions were ongoing, the parties reached a mediated
agreement (“the Agreement”) on the disputed issues of custody. The Family Court
entered the Agreement as an Agreed Order on February 24, 2021. In pertinent
part, the Agreement required the parties to use the “AppClose” messaging
application to share communication and scheduling about Child. “The use of
AppClose can facilitate their communication of the a [sic] venue outside of the
Fayette County public school system she shall [sic] activities, school events,
appointments, timeshare, vacations, etc.” Finally, the Agreement sets out that the
parties “shall continue to follow the equal 2-2-3 timeshare schedule with
exchanges occurring Monday, Wednesday, and Friday mornings at 8:30 a.m.,
unless otherwise agreed upon by the parties through the App.”
Most significantly to this appeal, the Agreement further provides:
[Mother] and [Father] shall share joint custody of their
minor son[.] The parties will make joint decisions of all
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issues impacting major areas of his life including but not
limited to educational, medical, and religious/spiritual.
If, after consultation, the parties cannot reach provided
agreement, [Mother] shall have final decision-making
power regarding educational and medical choices and
will keep [Father] informed of providers and care.
Homeschooling will not be considered after the 2021-
2022 school year. Both parties shall complete any
paperwork necessary to release full educational, religious
and medical records to the other parent.
Despite the entry of the Agreement, the parties continued to disagree
over the choice of kindergarten for Child. Father objected to Child attending
Whitney Young due to the distance. He complained that the additional travel time
would affect both his timesharing and his ability to participate in Child’s school
activities. Father also expressed concerns about the low scores of students at
Whitney Young. Consequently, he stated that Child should attend kindergarten in
Lexington, preferably at Ashland Elementary. Mother continued to express her
preference for Whitney Young because it had a French Immersion Program.
In the summer of 2021, Mother enrolled Child at Whitney Young, and
Child began attending there in August. In response, Father filed an “Emergency
Motion to Enforce and Amend Mediation Agreement.” He argued that her choice
of Whitney Young was unreasonable and that it amounted to a de facto relocation
in violation of his joint-custody and timesharing rights. Father also filed a motion
seeking attorney fees incurred in filing the motion. The Family Court scheduled
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the matter for a hearing in December 2021. In the meantime, Child began
attending Whitney Young in the Fall of 2021.
Both Father and Mother testified at the hearing on December 15,
2021. Mother stipulated that she had no desire to change the parties’ equal
timesharing, but she conceded that the schedule may have to change to
accommodate Child’s school attendance in Louisville. Much of their testimony
concerned the parties’ discussions on AppClose about the most appropriate school
for Child. In particular, the parties strongly disagreed about when Mother first
indicated that she wanted to send Child to Whitney Young and when Father stated
his objections to that choice. The parties also introduced a log of the AppClose
discussions.
The Family Court also heard testimony from Father’s wife, Haley
Harris (Harris), and from the Assistant Principal at Whitney Young, Katie Bleiden
(Bleiden). Harris’s testimony mainly concerned Father’s interactions with Child,
as well as Mother’s and Father’s discussions about the choice of school. Bleiden
testified that Child is doing well at Whitney Young. She provided records showing
that Child scores in the 90th percentile in reading and is taking second-grade math
classes. Bleiden further testified that Father is included in the file as authorized to
receive information about Child’s progress in school. She also said that Child
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receives French instruction for one hour each day, but he is the only one in his
class who is proficient in French.
Most notably, Bleiden testified that the French instructor and
replacement departed the school in September 2021. Consequently, she stated that
the school no longer had a French Immersion Program and was unlikely to restart
it during the current school year. Bleiden further noted that any new French
Immersion Program would start with the kindergarten class, and there was no
guarantee that Child would be a part of the program. However, she added that
Whitney Young continues to have its International Baccalaureate Program.
Bleiden also testified that any student attending Jefferson County Public Schools
must have a Jefferson County address.
Mother testified that she chose Whitney Young for Child because it
was the only elementary school in Kentucky with a French Immersion Program.
She also mentioned the school’s International Baccalaureate Program. Mother
stated that her main goal for Child is education in French. She has spoken French
with Child for most of his life, and he is fluent in the language. Mother stated that
she understood that Whitney Young no longer offers a French Immersion Program,
but she wants Child to continue attending that school for at least the current school
year. She also feels that Child is doing well there, and that any change would be
disruptive.
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In both her testimony and in the AppClose logs, Mother stated that
she had signed a lease for an apartment in Louisville where she and Child would
stay during the school year. Mother also testified that she continues to maintain a
residence in Lexington. Mother drives Child back and forth to Lexington for
timesharing with Father. When Father has overnight timesharing, Mother spends
the night at her Lexington residence.
Father is concerned about the travel time necessary between
Lexington and Louisville and the effect it may have on his parenting time. Father
also testified that he researched the test scores for Whitney Young on the Kentucky
Department of Education’s website. From his research, he learned that the
school’s test scores were in the bottom 20% of scores statewide. Along these lines,
Father introduced records from the Kentucky Department of Education showing
that Whitney Young had 330 “behavior events” during the 2019-2020 school year.
Bleiden testified that Whitney Young is designated as a “Comprehensive
Improvement School” because it was in the lowest-performing 5% of schools in
the Commonwealth. However, those scores and its status as a Comprehensive
Improvement School were based on Whitney Young’s scores in the 2019-2020
school year.
At the conclusion of the hearing, the Family Court made oral findings
granting Father’s motion to enforce the Agreement. Thereafter, the Family Court
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committed these findings to a written order entered on January 20, 2022. The
Court recognized that the Agreement gave Mother final decision-making authority
on educational issues. However, the Court concluded that the Agreement did not
authorize Mother to make unreasonable decisions or risk fundamentally changing
the parties’ relationship with Child.
The Court found that Mother’s decision to send Child to Whitney
Young was unreasonable for several reasons. First, the Court noted the testimony
that Whitney Young no longer offers the French Immersion Program, which was
the primary reason Mother chose the school. Second, the Court recognized
Mother’s testimony about the International Baccalaureate Program, but noted that
Mother had never cited that reason as a basis for choosing Whitney Young. And
third, the Court pointed out Whitney Young’s poor test scores and disciplinary
issues. Given these factors, the Court determined that there was no reason for
Child to continue attending Whitney Young.
The Family Court separately found that the extended travel time
would directly affect Father’s timesharing with Child. The Court also noted that
Father clearly expressed his disagreement with the choice of Whitney Young both
before and after the parties entered the Agreement. The Court concluded that
Mother made a “unilateral” decision to enroll Child at Whitney Young on a “trial”
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basis in order to “lay the groundwork” for a later motion to re-locate with Child.
The Family Court characterized this as “offensive behavior.”
Based on these findings, the Family Court directed Mother to enroll
Child at a Fayette County school no later than January 3, 2022. The Court
specified that Mother had the option of sending Child to a private school, but
Father has no obligation to pay for it or to facilitate an application for financial aid.
The Family Court declined to address the “larger issue” of modifying the
Agreement, limiting its holding to whether Mother’s decision to enroll Child at
Whitney Young was reasonable under the terms of the Agreement. The Court took
the parties’ cross-motions for attorney fees under advisement. Finally, the Family
Court addressed several matters that are not at issue in this appeal.
In a separate order entered on February 17, 2022, the Family Court
granted Father’s motion for attorney fees. That Court found that Father was
required to bring the motion after Mother made the unilateral decision to send
Child to a school outside Fayette County. The Court also noted that Mother could
have avoided the extensive litigation by filing motions to determine the extent of
her decision-making authority or to relocate. The Court concluded that “the bulk
of the litigation was the direct result of [Mother’s] unreasonable abuse of final
decision-making power for school issues and her unwillingness after the fact to
even agree that these decisions were subject to court review.” Consequently, the
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Family Court directed Mother to pay $8,000 in attorney fees to Father. Mother
now appeals from these orders.
As a preliminary matter, Mother has filed a motion to strike Father’s
responsive brief. Both RAP1 32(B)(4) and its predecessor, CR2 76.12(4)(c)(v),
require the argument section of an Appellee’s brief include “ample supportive
references to the record[.]”3 Mother concedes that his brief’s Counterstatement of
Facts contains adequate citations to the record, but maintains that his Argument
section fails to include sufficient citations to the record.
When an appellate advocate fails to abide by the appellate briefing
rules, this Court has the option to: (1) ignore the deficiency and proceed with the
review; (2) strike the brief or its offending portions, CR 76.12(8)(a); or (3) to
review the issues raised in the brief for manifest injustice only, if the briefing
deficiency pertains to the appellant’s statement of preservation of error. Ford v.
Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021). See also Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010). However, dismissal based upon non-
1
Kentucky Rules of Appellate Procedure.
2
Kentucky Rules of Civil Procedure.
3
Mother’s brief was filed with this Court on November 30, 2022, and was subject to the
provisions of CR 76.12(4)(c). Father’s brief was filed on February 15, 2023, and was subject to
the provisions of the RAP, which became effective on January 1, 2023. However, the
requirements of these sections are largely the same. Consequently, the transition to the new rules
does not affect our analysis.
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compliance with the rules is not automatic. Baker v. Campbell Cnty. Bd. of Educ.,
180 S.W.3d 479, 482 (Ky. App. 2005). In this case, Father did not separately
include record citations to factual matters in the Argument section of his brief. But
he did include record citations for all of these factual matters in the
Counterstatement section of his brief. The deviation from the rules is largely
technical and does not significantly impede our review. Therefore, we conclude
that the deficiencies in Father’s brief do not merit any sanctions. Thus, we will
deny Mother’s motion to strike.
Father maintains that this appeal is moot because Whitney Young has
never reinstated its French Immersion Program. Since this program was the
primary reason that Mother chose Whitney Young, Father contends that there is no
longer any matter in controversy. Mother contends that Father may not refer to
matters occurring after the filing of this appeal and that are outside the record.
However, under Kentucky law, mootness is a question of
justiciability, which may be raised at any time. See Commonwealth Cabinet for
Health and Fam. Servs., Dep’t for Medicaid Servs. v. Sexton by and through
Appalachian Reg’l Healthcare, Inc., 566 S.W.3d 185, 193 (Ky. 2018). As a
general rule, our courts will not render a decision that cannot have any practical,
legal effect on a then-existing controversy. Morgan v. Getter, 441 S.W.3d 94, 98-
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99 (Ky. 2014). Thus, Father is entitled to raise the issue of mootness as a bar to the
appeal.
Moreover, this appeal is not moot because Mother is challenging more
than the Family Court’s holding regarding her decision to send Child to Whitney
Young. She also argues that the terms of the Agreement give her “final” decision-
making authority as to educational decisions, and that those decisions are not
subject to judicial review absent a motion to modify the custody agreement. Since
a controversy still exists concerning that matter, we will not dismiss the appeal as
moot.
Thus, we turn to the central issue raised in Mother’s appeal – whether
Mother’s “final decision-making power regarding educational and medical
choices” is subject to judicial review for “reasonableness.” Mother contends that
the plain language of the provision allows her to choose any school for Child.
Consequently, she asserts that the Agreement is only subject to modification under
the provisions of KRS4 403.330 or KRS 403.340.
The construction and interpretation of the Agreement at issue in this
case was a matter of law for the Family Court to decide. Island Creek Coal Co. v.
Wells, 113 S.W.3d 100, 103 (Ky. 2003). This Court conducts a de novo review of
4
Kentucky Revised Statutes.
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the Family Court’s interpretation of the Agreement. Id. However, it is well-
established that a contract or agreement must be construed as a whole, giving
effect to all parts and every word if possible. City of Louisa v. Newland, 705
S.W.2d 916, 919 (Ky. 1986). Thus, the “final decision-making power” provision
must be construed in light of the entire Agreement and not just in isolation.
The Agreement requires the parties to make joint decisions on all
issues impacting the major areas of Child’s life. Mother’s “final decision-making
power” regarding educational choices may only be exercised if the parties cannot
reach an agreement “after consultation[.]” And, in addition to this language, the
Agreement provides that “[t]he parties shall attempt to agree upon where the child
will attend compulsory school beginning with the 2021-22 school year by March
15, 2021.”
The Agreement clearly contemplates that Mother will have the final
say on educational choices. But given the additional language, it does not permit
Mother to exercise that discretion without a good-faith effort to come to an
agreement. The Family Court found that Mother enrolled Child at Whitney Young
over Father’s stated objections and without considering local options. We
conclude that the Family Court properly considered the reasonableness of Mother’s
decision based upon the Agreement as a whole.
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The Agreement does not specifically limit Mother to schools within a
particular, geographic area. However, Mother cannot exercise her “final decision-
making power” in a manner that affects Father’s rights under the Agreement.
Mother interprets the Agreement as allowing her to enroll Child in any school
within a radius of Lexington that would allow continuance of the timesharing
schedule. Mother further contends that Father’s total timesharing will not be
affected by Child’s attending school in Louisville. But Mother conceded at the
hearing that the timesharing schedule would have to be modified to accommodate
the travel time. The Family Court found that Mother’s decision to send Child to
Whitney Young materially affects the quality of Father’s timesharing.
The Agreement adopts the Fayette County timesharing guidelines,
which provide that neither party shall relocate without notifying the other party and
seeking permission of the Family Court. Mother complains that the Family Court
improperly found that her actions amount to a “de facto relocation.” But Mother
admitted that she rented an apartment in Louisville where she and Child would stay
while school was in session. Mother also testified that she would consider a
permanent move to Louisville depending on how well Child did at Whitney
Young.
Assistant Principal Bleiden testified that any student attending
Jefferson County Public Schools must have a Jefferson County address. Mother
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admitted that she is not paying tuition for Child to attend Whitney Young, which
would be required of a parent who is not a bona fide resident of the school district.
KRS 158.120(1). See also Beechwood Board of Education v. Wintersheimer, 493
S.W.3d 390 (Ky. App. 2016). Thus, we agree with the Family Court that Mother’s
actions effectively amount to a relocation, in contravention of the timesharing
guidelines.
Finally, Mother specifically stated that she wanted Child to participate
in a French Immersion Program, and Whitney Young is the only elementary school
in the state that offers such a program. Although this was true when she enrolled
Child, Whitney Young discontinued the program shortly after Child began
attending school there. At the time of the hearing, there was no reasonable
expectation that it would be reinstated. There are no other compelling reasons for
Child to attend Whitney Young, as the school does not offer any unique programs,
and its test scores are among the lowest in the state.
Since Mother, Father, and Child all continue to reside in Kentucky,
the Family Court retained exclusive continuing jurisdiction over the child-custody
matter. KRS 403.824(1). We agree with the Family Court that, while Mother has
final decision-making power regarding educational choices for Child, that
discretion is not unlimited. In this case, Mother’s choice of Whitney Young
directly affects Father’s timesharing. The choice limits Father’s ability to
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participate in Child’s school activities, and the increased travel time burdens the
exercise of his timesharing. Furthermore, Mother’s choice effectively amounts to a
change in residence without prior approval of the Court as required by the
Agreement. And Mother was unable to identify any other reasons why Whitney
Young is the best school for Child to attend. Under these particular circumstances,
the Family Court did not err in finding that Mother’s decision was unreasonable.
Therefore, we conclude the Family Court did not err by limiting her educational
decisions to Fayette County schools. Having reached this conclusion, we need not
address whether the Agreement was subject to modification under KRS 403.330 or
KRS 403.340.
Mother next argues that the Family Court abused its discretion by
awarding attorney fees to Father. KRS 403.220 provides that, “after considering
the financial resources of both parties[,]” a court may order one party to pay
another party’s attorney fees. The Family Court has great discretion in
determining whether to award fees and, if so, in what amount. Smith v. McGill,
556 S.W.3d 552, 556 (Ky. 2018). The Family Court is “‘in the best position to
observe conduct and tactics which waste the court’s and attorneys’ time and must
be given wide latitude to sanction or discourage such conduct.’” Id., quoted with
approval in Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990). Thus, we review
for an abuse of discretion. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004).
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Despite this wide discretion, the Family Court is required to make
finding of reasonableness prior to any award of attorney fees. Capitol Cadillac
Olds, Inc. v. Roberts, 813 S.W.2d 287, 293 (Ky. 1991). Furthermore, in Smith v.
McGill, supra, the Kentucky Supreme Court emphasized that the statute does not
require that a financial disparity exist in order for a trial court to make such an
award. 556 S.W.3d at 556. The Court elaborated on that point in its holding:
While financial disparity is no longer a threshold
requirement which must be met in order for a trial court
to award attorney’s fees, we note that the financial
disparity is still a viable factor for trial courts to consider
in following the statute and looking at the parties’ total
financial picture.
Id.
In this case, the Family Court directed both parties to submit affidavits
in support of their cross-motions for attorney fees. The Court also directed the
parties to submit evidence of their respective, financial resources. In its findings,
the Family Court noted that, while Father earns more than Mother, Mother has
considerable resources of her own and maintains a more expensive lifestyle. And
as noted above, the Court found that Mother was primarily responsible for the
dispute and the ensuing litigation.
Contrary to Mother’s argument, we conclude that the Family Court
adequately considered the extent of both parties’ resources and the conduct of both
parties surrounding Father’s motion to enforce the Agreement. Mother does not
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complain about the sufficiency of the evidence concerning the reasonableness of
the amount of attorney fees awarded to Father. Consequently, we find no abuse of
discretion in the award of attorney fees.
Accordingly, we affirm the January 20, 2022, order of the Fayette
Family Court finding that Mother arbitrarily exercised her decision-making
authority under the Agreement and directing her to enroll Child in a Fayette
County school. We further affirm the Family Court’s February 17, 2022, order
awarding Father attorney fees in bringing his motion. Finally, we deny Mother’s
motion to strike Father’s brief.
ALL CONCUR.
ENTERED: _June 9, 2023_____
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Allison S. Russell Jason Rapp
Shanna R. Ballinger Lexington, Kentucky
Louisville, Kentucky
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