Russell Alan Johnson v. Monica Ann Johnson

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1076-MR
RUSSELL ALAN JOHNSON APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NO. 18-CI-01108
MONICA ANN JOHNSON APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
ACREE, JUDGE: Russell Johnson (Father) appeals the parental timesharing and
spousal maintenance portions of the Warren Family Court’s April 13, 2020
findings of fact, conclusions of law, and decree, as amended August 7, 2020,
dissolving his marriage to Monica Johnson (Mother). We address each argument,
in turn, and affirm.
Father and Mother separated after nearly twenty years of marriage.
They had two children, GAJ (age 14) and GFJ (age 4). The decree awards the
parties joint custody with Mother assigned as the primary residential parent.
Father was awarded parenting time that followed the Warren County Standard
Timesharing Guidelines. Father seeks equal timesharing.
Father first argues the family court erred when it considered evidence
of his third-party online relationship claiming the evidence was not relevant. He
says the evidence:
was that [Father] had a four (4) month relationship with a
woman, Kasey, who he never met, that he occasionally
sent pictures of his family to Kasey, and that he had a
sexting relationship with Kasey, and that when he broke
off the relationship Kasey sent numerous pictures to
[Mother][.]
(Appellant’s brief, p. 16.) Mother characterizes Father’s behavior more
graphically. The family court called this “risky internet behavior” and noted that
“[t]he parties’ oldest child has had some behavioral issues as it relates to
appropriate internet use.” Specifically, “[m]other found pornography and girls’
sexting messages in the deleted photos file on GAJ’s cell phone.” When Mother
informed Father, his response was “[h]e’s a 13-year-old boy!”
On this point, Father moved the family court pursuant to Kentucky
Rules of Civil Procedure (CR) 59 and, citing Moore v. Moore, 577 S.W.2d 613(Ky. 1979), challenged “the Court’s findings regarding his risky internet behavior
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and extramarital conduct” as irrelevant. The family court’s order granting in part
and denying in part directly addressed Father’s argument. Citing Krug v. Krug,
647 S.W.2d 790 (Ky. 1983), the family court used two-and-one-half pages of the
order to explain the relevance of Father’s conduct. We agree with that analysis.
The family court noted that Father’s behavior, although
distinguishable, was not so unlike that of the parent accused of misconduct in Krug
as to be irrelevant. “In Krug,” said the family court, “the wife exchanged lurid and
explicit letters with her paramour, and although the form of correspondence has
changed in the last 40 years, the principle of law has not.”
This Court also finds Krug’s principle of law determinative. Like
Krug, “[t]his case presents a potential continued exposure of the children to an
unwholesome environment.” Id. at 792. Relevant here are the following excerpts
from Krug, quoted more fully by the family court in its order:
A trial judge has a broad discretion in determining
what is in the best interests of children when he makes a
determination as to custody. In many instances he will
be able to draw upon his own common sense, his
experience in life, and the common experience of
mankind and be able to reach a reasoned judgment
concerning the likelihood that certain conduct or
environment will adversely affect children. . . . Many
kinds of . . . exposure to unwholesome environment
speak for themselves, and the proof of the . . . exposure is
in itself sufficient to permit a conclusion that its
continuation would adversely affect children.
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We also think the trial court is not precluded from
consideration of circumstances where the . . .
environment has not yet adversely affected the children
but which, in his discretion, will adversely affect them if
permitted to continue. In other words, a judge is not
required to wait until the children have already been
harmed before he can give consideration to the conduct
causing the harm.
In summary, when the misconduct of a proposed
custodian is advanced as a factor in the determination of
custody, evidence of such misconduct may be heard and
received, but before giving any consideration to such
misconduct, the court must conclude, in his reasonable
discretion, that such misconduct has affected, or is likely
to affect, the child adversely. If such a determination is
made, the trial court may then consider the potential
adverse effect of such misconduct as it relates to the best
interests of the child.
Id. at 793 (citations omitted).
The family court applied Krug to the evidence and concluded Father’s
“consumption and participation in such sexually explicit communication and
behavior . . . has affected or is likely to adversely affect the children.” We cannot
say that the family court abused its discretion in so finding because it was
supported by substantial evidence.
Father also challenges the weight the family court gave other evidence
that led to the decision Father should have only the standard visitation. More
weight, says Father, should have been given to Mother’s “refusal/delay to have co-
parenting therapy[.]” We reject this argument because “judging the credibility of
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witnesses and weighing evidence are tasks within the exclusive province of the trial
court.” Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018) (emphasis added).
However, we do note that the family court found as fact, based on the testimony of
Mother’s therapist, that Mother is “willing to have co-parenting counseling with
Father.”
More generally, Father argues the family court did not adequately
explain why it was deviating from the “presumption, rebuttable by a
preponderance of evidence, that . . . equally shared parenting time is in the best
interest of the child.” KRS 403.270(2). We disagree with Father.
In addition to the parties’ testimony, the family court heard
comprehensive testimony from the children’s therapist and two other mental health
professionals. In the context of that evidence, the family court methodically
worked through each factor listed in KRS 403.270(2), making factual findings as
to each, before concluding as follows:
[T]he [c]ourt is convinced by a preponderance of the
evidence that an equally shared parenting schedule does
not serve the children’s best interests. The parties do not
communicate with each other except by text message, let
alone sufficiently enough to co-parent the children to the
extent an equal parenting schedule would require. The
parents’ parenting styles are world’s apart, and frankly,
the [c]ourt is concerned that Father either takes oversight
and supervision of the children far too lightly, or he
simply cannot tell his son, “No.” . . .
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The [c]ourt is concerned that equally shared
parenting in this case would effectively leave the children
unsupervised half the time.
The family court went on to express its concern that “Father wants to be a ‘friend’
to his sons” and “does not properly discipline the children when necessary.”
The family court’s decision to deviate from the rebuttable
presumption of equal timesharing is supported by a preponderance of substantial
evidence of record. Furthermore, the family court’s award of timesharing based on
the standard visitation schedule satisfies the court’s statutory obligation to
“construct a parenting time schedule which maximizes the time each parent . . . has
with the child[ren] . . . .” KRS 403.270(2).
Finally, regarding the award of spousal maintenance, Father argues
the family court “greatly underestimated [Mother’s] earning ability . . . .” Again,
this Court disagrees. The family court found Mother was making a little more than
$35,000 per year based on actual income records. This substantial evidence
suffices to support the finding.
We also reject Father’s claim that the family court failed to “make
findings as to [Mother’s] ability to increase her earnings over time.” (Appellant’s
brief, p. 23.) Father never says where in the record the family court failed, upon
his request, to make such a finding. We examined the record, including Father’s
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motion pursuant to CR 52 for additional findings, and conclude he never asked the
family court to make such a finding. As the Supreme Court recently said:
We have long endorsed a rule that “specific
grounds not raised before the trial court, but raised for the
first time on appeal will not support a favorable ruling on
appeal.” When a trial court never has the opportunity to
rule on a legal question presented to an appellate court,
an appellant presents a different case to the appellate
court than the one decided by the trial court. Indeed, an
appellate court is “without authority to review issues not
raised in or decided by the trial court.” The proper role
for an appellate court is to review for error–and there can
be no error when the issue has not been presented to the
trial court for decision.
Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016) (footnotes
omitted). In summary, the award of maintenance is supported by the evidence and
in accordance with Kentucky law.
CONCLUSION
For the foregoing reasons, the Warren Family Court’s April 13, 2020
findings of fact, conclusions of law, and decree of dissolution, and the August 7,
2020 order amending the decree are affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Pamela C. Bratcher David F. Broderick
Bowling Green, Kentucky R. Taylor Broderick
Bowling Green, Kentucky
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