Opinion
NO. 2018-CA-000225-ME
06-07-2019
MICHAEL GREENE APPELLANT v. ELIZABETH BOYD (FORMERLY GREENE) APPELLEE
BRIEFS FOR APPELLANT: Mitchell A. Charney Allison Russell Prospect, Kentucky BRIEF FOR APPELLEE: James K. Murphy Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM FAMILY COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 11-CI-00810 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Michael Green appeals from an order denying his motion to modify the parties' current parenting schedule so that the children would reside primarily with him. He argues the Oldham Family Court erred by admitting the testimony of a previously undisclosed expert, erred by relying on third party out-of-court statements as filtered through a lay witness and the order was not based on substantial evidence. The family court's only error was in accepting hearsay testimony from the lay witness; however, as the error was harmless, we affirm.
Michael Greene and Elizabeth Boyd (formerly Greene) were married on December 30, 2000, and have two daughters. After the parties separated in California, Elizabeth moved back to Kentucky with the children to be near her family; Michael relocated to Chicago, Illinois, for his employment. On July 13, 2012, their marriage was dissolved in Kentucky.
Michael and Elizabeth were granted joint custody with Elizabeth serving as the primary residential parent and Michael exercising timesharing. Subsequently, Michael relocated to Missouri for his employment and remarried. Elizabeth also remarried. Despite the substantial distance and an agreement that Michael would drive most of that distance to exchange the children, Michael faithfully exercised his weekend and vacation timesharing.
In 2015, Michael filed motions with the family court requesting a modification of the parties' current parenting schedule so that the children would primarily reside with him on the basis that such a change would be in their best interest. The family court interpreted Michael's motions as seeking a change in custody and summarily denied his motions without a hearing. In Greene v. Greene, No. 2015-CA-000428-ME, 2015 WL 7820983, 3 (Ky.App. 2015) (unpublished), we reversed on the basis that the family court erred in summarily denying Michael's motions and stated:
On remand, the family court is required to hold a hearing on whether Michael can establish that a modification of timesharing to make him the primary residential parent is in the best interest of the children, and then make an adjudication on the merits which would include findings of facts and conclusions of law.
On remand, the family court appointed attorney Briana Abbott to serve as a friend of the court (FOC) and appointed Dr. David Feinberg to perform an issue focused assessment of the parenting schedule. Abbott and Dr. Feinberg had different recommendations as to timesharing in the reports they filed.
After several delays, a bench trial was held on whether Michael's motion for modification should be granted. The parties testified along with Abbott, who also submitted an updated report, Dr. Feinberg, Tara Greene (Michael's wife) and Melanie Young (the children's counselor). The depositions of Dr. Michael Jenuwine (Elizabeth's expert), Christa Hanke (a teacher for one of the children) and Dr. Mohamed Khodeir (Elizabeth's psychiatrist) were submitted into evidence along with Elizabeth's treatment records.
Elizabeth's mental health history is undisputed. She has a history of depression, which was subsequently diagnosed as bipolar disorder, and has tried many forms of treatment and medication for her symptoms.
In January 2016, Elizabeth checked herself into The Brook Hospital after suffering from suicidal ideations and spent a week there; Michael was not told about Elizabeth's hospitalization. After her discharge, she took part in a partial hospitalization program for another two weeks. Subsequently, Elizabeth was treated by Dr. Khodeir and her medications were adjusted.
The most significant dispute in determining the best interest of the children is whether Elizabeth's mental health prevents her from appropriately parenting the children as their primary residential custodian. Dr. Khodeir and Young opined that Elizabeth's mental health conditions did not affect her current ability to parent. Abbott testified that based on the interviews she conducted, she believed that Elizabeth functioned well as the children's residential custodian and recommended the children remain primarily with Elizabeth. Abbott opined the children would benefit from spending some additional time with Michael and recommended he be granted additional parenting time during the summer and vacations.
Dr. Feinberg had a different opinion about the significance of Elizabeth's mental health history on her current and future ability to function well as the children's primary residential parent. Dr. Feinberg opined he had serious concerns with Elizabeth's ability to parent children especially given her recent hospitalization and history of stopping medications. He recommended that the parenting schedules essentially be flipped, with Michael to serve as primary residential custodian.
Dr. Feinberg also testified as to his suspicions that Elizabeth might have borderline personality disorder. However, Elizabeth has never been diagnosed with borderline personality disorder, and Dr. Khodeir disagreed with this assessment. Additionally, Dr. Jenuwine opined that Dr. Feinberg's methodology in his report was flawed and did not provide a proper basis for his opinions.
Following the bench trial, the family court issued one order which served to deny Michael's motion in limine regarding Dr. Jenuwine, made findings of fact and conclusions of law on the timesharing issue and ultimately denied Michael's motion to become the children's primary residential custodian but did award him additional timesharing. The family court denied Michael's motion in limine on the basis that Dr. Jenuwine could appropriately testify as a rebuttal witness to Dr. Feinberg with respect to his methodology, and he did not need to meet with the parties or the children to offer such testimony.
As to the primary residential custodian timesharing issue, the family court stated that Elizabeth's mental health history was only one of many factors it considered in making its determination. The family court relied on the opinions of Elizabeth's treating therapist, Dr. Jacquelyn Graven, and her psychiatrist, Dr. Khodeir, in finding that Elizabeth's mental health issue did not affect the children.
Dr. Graven, who saw Elizabeth from 2011 through 2014, and again for several months in 2016, was the professional most likely familiar with Elizabeth's overall condition. However, Dr. Graven did not testify, and the family court relied on Dr. Graven's statements as relayed through the testimony of Abbott, the court-appointed FOC.
The family court thoroughly discussed Abbott's report and recommendations stating that she spent a substantial time on this case and noting that it "finds her to be thorough, trustworthy, unbiased and places great weight on her insight and recommendations." The family court relied on Abbott's testimony that she "had no concerns regarding [Elizabeth's] mental health at present time, that she is compliant with her medication and therapy, and that she has a good support system in place" and Abbott "did not believe [Elizabeth's] mental health condition had any affect upon the children."
The family court discounted Dr. Feinberg's report and testimony based on him failing to provide "specific examples of [Elizabeth] not acting in the best interests of her children as a direct result of her alleged mental illness" and stated his conclusions that "[Elizabeth's] years of mental health treatment [have] produced little sustained improvement and that the data reflects that [Michael] would provide a more stable environment for the children . . . appear to be at odds with the testimony and records of [Elizabeth's] treating physicians and therapists[.]" The family court questioned how Dr. Feinberg's limited direct contact with Elizabeth could compare with that of Dr. Khodeir and Dr. Graven who had been treating her for years, and found his report inconsistent where he focused in great detail on Elizabeth's mental health history and discounted Michael's diagnosis of PTSD and his own conclusion that he could not rely on the standard personality tests administered to Michael and Tara, Michael's current wife. The family court determined that while it would not exclude Dr. Feinberg's report, it would assign it the appropriate weight.
The family court believed Young's testimony that Elizabeth's mental health is stable with respect to the children. In reviewing the testimony of the parties, the family court opined that Michael's concerns about the affect Elizabeth's mental health could have on the children was speculative and he did not demonstrate how it poses a current threat to the children and that Tara's overinvolvement in the case has caused problems. The family court also opined that the children's anxiety was based on worries about being torn between their parents, where they would end up living and the litigation in general. The court was also concerned about Michael's defensiveness and tendency to present himself as perfect and shift blame to others.
The family court chose not to weigh the wishes of the children as it believed they were conflicted, and the older daughter had made contrasting statements as to where she wished to live.
The family court stated it could see no evidence of any significant negative effect that Elizabeth's mental health had on the children or her ability to parent and opined as follows:
The testimony of [Elizabeth's] treating psychiatrist and therapist, as well as that of the FOC, reflects [Elizabeth's] proactive stance in dealing with her mental health issues. She is compliant with the directives and recommendations of her doctors and appears to have found the appropriate combination of medications to treat her condition.The family court concluded:
Despite [Michael's] concern about [Elizabeth's] mental health, there is insufficient evidence to support a finding that [Elizabeth's] condition poses a threat to the children or negatively affects her ability to parent. The testimony of professionals who have been treating [Elizabeth] for years must be afforded greater consideration by the Court than the testimony of Dr. Feinberg whose contact with [Elizabeth] is limited to approximately an hour.
Like Ms. Abbott, this Court cannot identify a compelling reason to remove these children from the home, the school, the friends and the extended family they know.
Despite [Michael's] attempts to paint [Elizabeth] as an emotionally unstable and overwhelmed parent, the evidence does not support such a finding. [Michael's] argument that the best interests of the children would be
better served by living primarily with him, where he could provide the girls with more stability, structure and discipline, is indicative of the parties' opposite parenting style, and not of any unmet needs of the children while in [Elizabeth's] care.
Michael argues that the family court should have granted his motion in limine to prohibit the testimony of Elizabeth's expert witness, Dr. Jenuwine, and, in failing to do so, the family court abused its discretion. Michael argues that other than disclosing the name of her expert and stating that he would be testifying about validity of the testing data and the statements derived from the tests used in Dr. Feinberg's report, Elizabeth failed to comply with Kentucky Rules of Civil Procedure (CR) 26.02(4)(a)(i). This left him unable to prepare for his testimony where she did not tender Dr. Jenuwine's report until July 17, 2017, the day before trial.
Michael takes issue with the fact that Elizabeth's motion in limine was granted as to his expert, Dr. Kelli Marvin, on the basis that she had not interviewed either party or the children, had not rendered a report and the description of her proffered testimony was too vague, when all of these same concerns applied to Dr. Jenuwine. Michael disputes that it was appropriate for the family court to allow Dr. Jenuwine to testify as a rebuttal witness where Dr. Feinberg testified consistently with his report. Michael argues his receipt of Dr. Jenuwine's report "at the eleventh hour" disadvantaged him and was not harmless.
Although Michael rails against the exclusion of his witness, he only raises this issue to complain that the family court unfairly admitted the testimony of Dr. Jenuwine so we need not address whether the testimony of Dr. Marvin was wrongfully excluded.
We briefly discuss the relevant timeline regarding Dr. Feinberg's reports, Elizabeth's expert witness disclosure, the contents of Michael's motions in limine and Elizabeth's response as this is crucial in understanding why the family court acted as it did in denying Michael's motions in limine. On March 7, 2017, Dr. Feinberg issued an initial report. On May 3, 2017, Elizabeth filed her expert disclosures sixty days in advance of the trial in which she stated in general terms that Dr. Jenuwine would be testifying about validity of the testing data and the statements derived from the tests used in Dr. Feinberg's report. On June 5, 2017, Elizabeth received Dr. Feinberg's final report. On June 23, 2017, Michael filed a motion in limine to bar the expert testimony of Dr. Jenuwine and on June 27, 2017, Michael filed a supplemental motion in limine which focused on his assertion that Elizabeth's CR 26.02 disclosure on Dr. Jenuwine was deficient.
Michael's appellate brief failed to provide references to where in the record his motions in limine (original and supplemental) appeared, state the dates on which they were filed, or even cite to the most relevant supporting documents or general chronology regarding this issue which was so important in understanding the family court's decision. This failure resulted in this Court having to scour the voluminous record in order to give complete consideration to this argument. Michael's appellate brief thereby violated CR 76.12(4)(c)(iv) which states that an appellant's brief must include: "[a] 'STATEMENT OF THE CASE' consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record . . . supporting each of the statements narrated in the summary[;]" and CR 76.12(4)(c)(v) which requires an appellate brief to contain "[a]n 'ARGUMENT' conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." We would be acting well within our discretion to strike Michael's brief for such failures. CR 76.12(8)(a). However, given that we are considering what is best for the children we have decided to determine this appeal on the merits.
In Michael's first motion in limine he claimed, among other things, that "it is not clear at all what the witness will be testifying about." In his supplemental motion in limine, Michael argued he was completely unable to obtain further discoverable information on what Dr. Jenuwine's expert opinion would be given when the trial was to commence and since there was no way for him to narrow down what Dr. Jenuwine was going to say that he should not be allowed to testify at trial.
In Elizabeth's response, she explained that while she had Dr. Jenuwine review Dr. Feinberg's March 7, 2017 initial report and raw data and in response to those "Dr. Jenuwine identified some glaring errors in the methodology, testing and basis for the conclusions in the Initial Report[,]" she did not know at that time "what if anything, Dr. Jenuwine could testify about" until he reviewed the final report.
Elizabeth explained she did not receive Dr. Feinberg's final report until June 5, 2017, the report had not yet been filed with the court, and the final report had some additional twenty pages compared with the initial report and included new opinions about Elizabeth's actual diagnosis. Elizabeth stated she forwarded the final report to Dr. Jenuwine but was not able to discuss it with him until June 21, 2017, as Dr. Jenuwine had a death in the family.
Elizabeth argued she was hampered from making a more complete disclosure as to what Dr. Jenuwine would testify about due to the tardiness of Dr. Feinberg's report. She did state, however, that the final report was problematic according to Dr. Jenuwine because "the testifying and structure of the Report simply do not comport with the standards generally recognized by the AAML or other custodial evaluators."
Dr. Jenuwine's report was provided to Michael the day before trial and ultimately the family court permitted Dr. Jenuwine to testify via deposition. Michael asked and was permitted to have Dr. Feinberg submit an affidavit responding to Dr. Jenuwine's criticism of his methodology.
"Rebuttal evidence is evidence that 'tends to counteract or overcome the legal effect of the evidence for the other side.'" Fraser v. Miller, 427 S.W.3d 182, 184 (Ky. 2014) (quoting Reserve Loan Life Ins. Co. v. Boreing, 157 Ky. 730, 163 S.W. 1085, 1087 (1914)). "The trial court has broad discretion to determine the admissibility of rebuttal evidence and its decision in this regard is reviewed for an abuse of discretion." Clutter v. Commonwealth, 322 S.W.3d 59, 65 (Ky. 2010). Under CR 26.02, a trial court has the discretion to exclude the testimony of a party's expert witness for a flagrant pretrial discovery violation. See Harville v. Vanderbilt Univ., Inc., 95 F.App'x 719, 724-25 (6th Cir. 2003) (construing the analogous Federal Rule of Civil Procedure 26).
CR 26.02(4)(a) provides:
(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) After a party has identified an expert witness in accordance with paragraph (4)(a)(i) of this rule or otherwise, any other party may obtain further discovery of the expert witness by deposition upon oral examination or written questions pursuant to Rules 30 and 31. The court may order that the deposition be taken, subject to such restrictions as to scope and such provisions, pursuant to paragraph (4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.CR 37.01(b)(i) provides in relevant part: "If a deponent fails to answer a question propounded or submitted under Rule 30 or 31 . . . or a party fails to answer an interrogatory submitted under Rule 33 . . . the discovering party may move for an order compelling an answer[.]" Pursuant to CR 37.01(c), "an evasive or incomplete answer is to be treated as a failure to answer."
If responses to CR 26.02(4)(a)(i) are inadequate, a party's remedy is to file a motion for an order compelling discovery. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 118 (Ky.App. 1998). CR 37.02(2) provides for sanctions for failure to comply with a discovery order. It is within the trial court's sound discretion to decide whether and which sanctions should be applied. Morton v. Bank of the Bluegrass & Tr. Co., 18 S.W.3d 353, 360 (Ky.App. 1999).
A late response after an improper initial response does not necessarily require that a trial court exclude testimony by an expert witness. In M.P.S., the Court ruled that the trial court did not abuse its discretion in permitting an expert witness to testify where an appropriate response (after a clearly deficient response) was mailed five days prior to trial. M.P.S., 979 S.W.2d at 118.
Notably, Michael never moved to depose Dr. Jenuwine or made a request for him to answer written questions as he could have done pursuant to CR 26.02(4)(a)(ii). Michael also did not "move for an order compelling an answer" to his interrogatories regarding Dr. Feinberg pursuant to CR 37.01(b)(i) even after receiving Elizabeth's response to his motions in limine which indicated that a more complete answer could now be provided from her.
It appears that rather than seeking to prepare for Dr. Jenuwine's testimony, Michael's strategy was to seek the complete exclusion of his testimony. Given the chronology of events, there was no flagrant pretrial discovery violation as Elizabeth simply did not have the information she needed at the time of her expert witness disclosure to definitively say how Dr. Jenuwine would testify. If Michael received Dr. Jenuwine's report at the "eleventh hour," it is only because Dr. Feinberg's final report, the methodology of which Dr. Jenuwine was evaluating, was not submitted until the "tenth hour." The family court properly acted within its discretion by allowing Dr. Jenuwine's deposition testimony to be admitted under these circumstances and was generous in allowing Dr. Feinberg to submit an affidavit in response.
Michael argues the family court erred by improperly allowing Abbott to testify regarding the children's and third parties' out-of-court statements because there are no hearsay exceptions permitting her to do so. Michael argues it was error for the family court to allow such testimony over his objection because there is no investigative hearsay exception. He also argues it was error for the family court to let Abbott opine on Elizabeth's mental health when she was not an expert and to allow her to relate the expert opinions of the experts to which she spoke because Michael could not challenge such information on cross-examination where they did not testify.
The role of a FOC was examined in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). The Kentucky Supreme Court explained why the roles of a FOC and guardian ad litem should be kept distinct to not infringe upon a parent's due process rights. Id. at 119.
In Morgan, the Court explained that in contentious custody cases "the court will naturally want the advice of someone like a 'friend of the court,' someone authorized to investigate independently the custodial situation and to report to the court about where things stand with the family." Id. at 113. The Court further explained the basis for such a role was authorized by KRS 403.300, which provides as follows:
(1) In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by the friend of the court or such other agency as the court may select.
(2) In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodial arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian; but the child's consent must be obtained if he has reached the age of 16, unless the court finds that he lacks mental capacity to consent. If the requirements of subsection (3) are fulfilled, the investigator's report may be received in evidence at the hearing.
(3) The clerk shall mail the investigator's report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. The investigator shall make available to counsel and to any party not represented by counsel the investigator's file of underlying data, and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2), and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. A party may not waive his right of cross-examination prior to the hearing.
Although clearly it is anticipated that a FOC's report may be admitted into evidence and that a FOC may testify, the FOC's report and testimony are still governed by the Kentucky Rules of Evidence (KRE). As explained in the KRE, "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" and "[h]earsay is not admissible except as provided by these rules or by rules of the Supreme Court of Kentucky." KRE 801(c); KRE 802.
"It is well-established that investigative hearsay is still, fundamentally, hearsay and, thus, disallowed." Chestnut v. Commonwealth, 250 S.W.3d 288, 294 (Ky. 2008). Therefore, taking on the role of investigating as a FOC does not give that FOC a right to provide hearsay testimony for statements made during the course of the investigation any more than police officers or social workers can provide hearsay testimony based on statements they heard during the course of their investigations. See Sanborn v. Commonwealth, 754 S.W.2d 534, 542 (Ky. 1988) (receded on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17, 22 (Ky. 2006)) (no hearsay exception for witness statements made to police officers during their investigation); Sharp v. Commonwealth, 849 S.W.2d 542, 546 (Ky. 1993) (no hearsay exception for witness statements made to social workers during their investigation).
An investigator's "'conclusion' or 'summary' of information gleaned from investigatory interviews . . . is no less hearsay than the interviewees' statements on which it is based." Dickerson v. Commonwealth, 485 S.W.3d 310, 325 (Ky. 2016). A "repackaging" of out of court statements "[does] not make that information any less objectionable." Id.
In addition to the problem of the FOC's hearsay statements, Abbott's testimony and report were also problematic in that they contained expert opinions which she was not qualified to provide by virtue of being appointed as an FOC. There is no authority in Morgan or KRS 403.300 to establish that when a court appoints an FOC that this somehow converts the FOC into an expert witness. Unless a person appointed to be an FOC is already an expert, the FOC's opinions will be limited to those that any other lay witness could give pursuant to KRE 701.
Therefore, Michael is correct that the family court erred by relying upon the FOC's report and testimony to relate what the children and other third parties said, to summarize based on hearsay statements what expert opinions Elizabeth's treating therapist and psychiatrist opined, and to accept Abbott's opinions as to the stability of Elizabeth's mental health where Abbott did not have the necessary expertise to give expert opinions. We are especially troubled when it comes to Abbott's statements which related Dr. Graven's expert opinions and the family court's decision to, apparently, treat them as if delivered in court by Dr. Graven herself. While Michael does not question the accuracy of the statements Abbott passed on from Dr. Graven, he quite correctly states that receiving the statements in such a manner prevented him from cross-examination and if Elizabeth wanted Dr. Graven to testify, she should have called her as a witness.
It is not appropriate for the family court to use an FOC's report and testimony in such a manner. The FOC's report and testimony are not a replacement for the testimony of witnesses the FOC interviewed.
However, although the error regarding this testimony is evident, we must still determine whether it may be harmless.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.CR 61.01. There was ample evidence to support the family court's conclusion that Elizabeth's mental health was not harmful to the children and it was in their best interest for Elizabeth to retain her role as their primary residential custodian as they would then remain in their current home, attending their current schools and continue to have the support of Elizabeth's extended family. The family court relied on the testimony of Elizabeth's treating psychiatrist, Dr. Khodeir; the children's therapist, Young; the testimony of one child's teacher; and Elizabeth's mental health records which included records from Dr. Graven and Dr. Khodeir. Only Dr. Feinberg expressed real concerns about Elizabeth's mental health and the family court was right to give less weight to his opinion because he did not treat Elizabeth and there were reasons to question his methodology as established by Dr. Jenuwine's rebuttal testimony. Much of the hearsay in Abbott's report and testimony was entirely consistent with how those same witnesses testified. Additionally, the introduction of the children's hearsay statements relating to their wishes was not harmful because the trial court did not consider their wishes in making its decision. Therefore, we are confident that if the hearsay and improper expert opinion testimony of Abbott was eliminated, that the outcome would remain the same.
Finally, Michael argues that the family court failed to give the proper weight to Elizabeth's mental illness to the point that it abused its discretion, and its order was not based on substantial evidence. Specifically, he contends that it was undisputed that Elizabeth has serious mental health issues that were well documented and her pattern of instability affected her ability to parent and allowing the children to remain with her could cause them harm. He points to her hospitalization as an example of how her conduct harmed and endangered the children.
A parent seeking to become the primary residential parent is seeking a modification of timesharing under joint custody on the basis that it is in the best interests of the child to change the extent of time that the child is in that parent's care, a decision governed by KRS 403.320(3). Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008).
KRS 403.320(3) provides as follows:
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.
Michael and Elizabeth share custody over the children but Elizabeth does not agree that Michael should become the children's primary residential custodian. Therefore, Michael bears the burden of proof to establish that having the children move, rather than continuing to engage in existing weekend and vacation timesharing with them while they remain primarily with Elizabeth in Kentucky, would be in their best interest. See Agnich v. Tyler, 520 S.W.3d 394, 398 (Ky.App. 2017). Such a decision is left to "the sound discretion of the trial court." Pennington, 266 S.W.3d at 769.
Michael is attempting to have us reweigh the evidence before the family court and make our own factual determinations. We decline to depart from our well-established role of only reviewing a lower court's findings for clear error.
As we discussed infra, there is ample evidence that Elizabeth's mental health issues do not prevent her from functioning well as the children's primary residential custodian, and the family court properly acted within its discretion in determining that it is not in the children's best interest to disrupt their lives and establish them primarily in Michael's home. Although Elizabeth was hospitalized for treatment of her depression, this does not mean that she is thereby disqualified from functioning as their primary residential custodian where there was evidence she improved after such hospitalization and was currently fit to parent the children.
Parents should always feel encouraged to seek out needed treatment. By receiving appropriate treatment for mental health issues, addictive behavior and the like, parents are acting in their children's best interests to become as fit of parents as possible. See Wyatt v. Wyatt, 689 So. 2d 1140, 1142 (Fla. Dist. Ct. App. 1997) (footnote omitted) (declining as a matter of public policy to "penalize[] an otherwise fit, competent parent for the commendable action of recognizing an addiction to prescription drugs, seeking assistance with, and successfully completing treatment for that problem."); Hargrove v. Hargrove, 694 So. 2d 645, 648-49 (La. App. 2 Cir. 1997) (declining to modify custody based on mother's medical condition and episode of depression where mother responded well to voluntary treatment and was considerably improved at the time of her discharge).
Accordingly, we affirm the Oldham Family Court's order which denied Michael's motion in limine and denied his motion to become the children's primary residential custodian.
JONES, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.
KRAMER, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: The majority opinion is extremely well written and well analyzed. I concur with it in part and applaud the majority's opinion efforts in footnote 2 toward encouraging parents to seek needed treatment as Elizabeth has done so. I am fully in agreement with the opinion in all regards with the exception of deciding it was harmless error for the family court to have improperly allowed the hearsay testimony offered by FOC Abbott. As noted in the majority opinion, the Supreme Court in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) extensively examined the role of a FOC. Therein the Court stated that a FOC is "a child's representative appointed as an officer of the court to investigate the child's and the parents' situations, to file a report summarizing his or her findings, and to make recommendations as to the outcome of the proceeding . . . ." Id. at 111. A FOC acts "as the court's agent, not the child's, and his or her role may include custodial recommendations. . . . If the court's concern is primarily to insure that it has been thoroughly and objectively apprised of the custodial circumstances, this de facto FOC approach is generally apt to suffice, and it appears to be the approach the General Assembly intended as the trial court's principal resource." Id. at 113-14. Consequently, FOC Abbott functioned as an agent of the family court, was to objectively apprise the family court of the custodial circumstances and was to make custodial recommendations.
I agree completely with the majority opinion's well-reasoned evaluation of a FOC's hearsay testimony in an adversarial proceeding. And, beyond the hearsay offered by FOC Abbott, I agree that FOC Abbott's testimony and reports were problematic in that they contained expert opinions on which she was not qualified to testify. As in the majority opinion, I too am "troubled" particularly by FOC Abbott's testimony regarding Dr. Graven's evaluation of Elizabeth's mental status. But, this is where I part with the majority opinion. I cannot conclude that FOC Abbott's improper testimony was harmless error. Through the FOC's testimony, although Dr. Graven did not testify, Dr. Graven's evaluations and impressions of Elizabeth were improperly allowed into evidence. And, all of this is no small thing. There were many credibility findings to be made in this case, and the two parties differed greatly on what they each thought was in the best interests of their children. It is beyond doubt that the family court took into account what its agent, FOC Abbott, testified to and recommended. At page four of the family court's order, it states "Although Dr. Graven was not called as a witness at the hearing, Ms. Abbott did speak with her and testified that Dr. Graven stated [Elizabeth] has done well coping with the ongoing litigation and is stable. Dr. Graven felt that [Elizabeth] should not have any future problems and that it is her belief that [Elizabeth's] issues did not have any affect upon the parties' children." Then on pages five and six of the family court's order, it states that FOC Abbott
recommended that the children stay in Kentucky, residing primarily with [Elizabeth]. Although she further recommended the parenting schedule stay the same, she did recommend granting [Michael] additional parenting time during the children's summer break. It is clear Ms. Abbott spent substantial time in this case meeting with the parties and their families, conducting interviews, reviewing the case file, etc. Ms. Abbott is regularly appointed by courts to assist them as Friend of the Court and this Court finds her to be thorough, trustworthy, unbiased and places great weight on her insights and recommendations.
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Ms. Abbott testified that she had no concerns regarding [Elizabeth's] mental health at present time, that she is compliant with her medications and therapy, and that she
has a good support system in place. Ms. Abbott testified she did not believe [Elizabeth's] mental health conditions had any affect upon her children.(Emphasis added.)
Thereafter, in the conclusion, the family court repeatedly put emphasis on its agreement with FOC Abbott's recommendations. Given that, as the family court noted, this was a "hotly contested" case; that there were many credibility findings to be made; that evidence supporting both Michael's and Elizabeth's respective side can be found in the record; and given that FOC Abbott's testimony was impugned with hearsay and improper expert testimony on the status of Elizabeth's mental health, I cannot conclude that it was only harmless error for the family court to have allowed the testimony into the record and to have relied upon it. This is particularly so when the family court stated that it "place[d] great weight on [FOC Abbott's] insights and recommendations." Given the family court's high praise of FOC Abbott, I have no doubt that she is highly dedicated to her service to the court and undoubtedly has rightfully earned the trust of the court, which is no small thing. However, in this case, mistakes were made. While there is certainly evidence supporting Elizabeth's side, there is also evidence supporting Michael's. Although I make no conclusions as to who should ultimately prevail herein, I cannot conclude that the taint of FOC Abbott's testimony did not substantially affect Michael's rights and tip in the scales in Elizabeth's favor. Thus, I cannot conclude that it was only harmless error; therefore, I would reverse and remand for a new hearing on this matter. BRIEFS FOR APPELLANT: Mitchell A. Charney
Allison Russell
Prospect, Kentucky BRIEF FOR APPELLEE: James K. Murphy
Louisville, Kentucky