Opinion
NO. 2014-CA-001292-ME
05-01-2015
MELISSA SABRINA HAMILTON APPELLANT v. JOSEPH HAMILTON APPELLEE
BRIEF FOR APPELLANT: Daniel Sherman Greenville, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM HARLAN FAMILY COURT
HONORABLE HENRY S. JOHNSON, JUDGE
ACTION NO. 11-CI-00015
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND MAZE, JUDGES. ACREE, CHIEF JUDGE: We must determine if the Harlan Circuit Court abused its discretion when it granted appellee Joseph Hamilton's motion to modify timesharing by naming Joseph the primary residential parent of the parties' minor children and reducing and restricting appellant Melissa Hamilton's timesharing with the children. We conclude that the circuit court's reduction in Melissa's timesharing failed to adhere to the requirements of KRS 403.320(1). Therefore, we reverse and remand this case for subsequent proceedings to determine appropriate timesharing under the applicable statute.
Kentucky Revised Statute.
I. Facts and Procedure
Melissa and Joseph were married in 1997 and had three children: J.H., born April 13, 1998; T.J.H., born October 17, 1999; and C.H., born July 15, 2003. Melissa filed a petition for dissolution of the marriage in 2011. The decree of dissolution, entered August 2, 2012, named the parties joint custodians of their children, designated Melissa the primary residential parent of T.J.H. and C.H., and designated Joseph the primary residential parent of J.H. The decree specifically forbade any contact between the children and Eddie Estep, Melissa's uncle, who is a registered sex offender convicted of "attempted sexual battery" of a ten-year-old child. A subsequent order adopted the Harlan County standard visitation schedule, which afforded both parties substantial timesharing with the children not in the parent's primary care.
In 2013, Joseph filed successive motions seeking to modify timesharing, citing Melissa's alleged failure to abide by the timesharing schedule, her unstable and poorly-kept home, and her failure to shield the children from Estep. The matter eventually came before a Domestic Relations Commissioner (DRC) on March 19, 2014.
The DRC interviewed T.J.H. and C.H. T.J.H. stated that Estep has "been around," that Estep used to come around all the time before T.J.H.'s grandfather (Estep's brother; Melissa's father) died in May 2013, and that Estep has not been around much since that time. T.J.H. confirmed Estep made improper sexual overtures toward him. He stated he wants to live with his father, and that he feels safer with Joseph. C.H. verified that Estep does not come around anymore, but that he did so prior to the death of her grandfather. C.H. testified that Estep "sorta" touched her inappropriately. C.H. had not made any prior complaints of inappropriate contact by Estep. C.H. clarified that Estep lives within walking distance of her house.
Melissa testified that her father passed away on May 1, 2013. She inherited his residence and has resided there with the children since. Estep lives one-fourth of a mile "up the road." Estep used to visit frequently prior to the parties' divorce. He was last around the children on the day Melissa's father died. Melissa testified she has taken steps to ensure Estep is not around the children. She has never left the children alone with Estep or in his care. When Estep recently attempted to enter the property, Melissa demanded that he leave and called the police. T.J.H. and C.H. are both doing well in school and earning good grades. T.J.H. is in therapy for anger issues, but has improved.
Rebecca Moyers is a therapist employed by Cumberland River Behavior Health. She meets with T.J.H. one to two times per month to address his anger management issues, and has done so since October 2012. She described T.J.H. as a quiet and reserved child. At first, T.J.H. was having issues at school, such as sleeping in class, and not completing his assignments. Therapy appears to have resolved those issues. T.J.H. is utilizing anger-management techniques learned in therapy and is likely to be discharged in the next six months. T.J.H. never discussed the sexual-abuse allegations with Moyers and has never voiced displeasure regarding Melissa. Moyers recently processed the paperwork to begin therapy with C.H.
Leslie Adkins Howard is a social worker with the Cabinet for Health and Family Services. Howard was asked to conduct a custodial assessment related to an emergency protective order (EPO) taken out by Joseph against Melissa. Howard's investigation revealed no evidence of abuse by Melissa, and the EPO was ultimately dismissed. Howard also conducted an investigation in June 2013 involving T.J.H.'s sexual abuse allegations involving Estep. The abuse occurred in 2012 when Melissa left the children in her father's care. Without notifying Melissa, her father vacated the residence leaving the children alone. While the children were there alone, Estep entered the residence and sexually abused T.J.H. Howard concluded Melissa did not place the child at risk of harm and was not neglectful. In the course of the investigation, all three children were interviewed by forensic examiners. The interviews yielded no other allegations of sexual abuse by Estep.
At the conclusion of the hearing, the DRC found it was in the best interests of T.J.H. and C.H. that primary residential custodianship of them be transferred to Joseph; that Melissa be permitted timesharing every other weekend at Joseph's home, "or his appropriate designee, but always in Leslie County"; and that both parents ensure the children have no further contact whatsoever with Estep. The DRC clarified that Melissa's timesharing need not be supervised "- she may spend time alone with [the children], or take them out to eat, for example - but that the children be kept in Leslie County and away from [the town of] Cumberland [in Harlan County] altogether." Overruling Melissa's exceptions, the family court approved and adopted the DRC's recommendations without modification on July 21, 2014. Melissa promptly appealed.
Joseph failed to file an appellee brief in this matter. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) permits us to impose the following sanctions in such a circumstance:
If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case. (cont.)The exercise of these options is within our discretion. Given the importance of parenting time with children, we have elected not to impose any sanctions pursuant to this rule, but shall instead consider the merits of Melissa's claims.
II. Standard of Review
The decision to modify timesharing is reserved to the sound discretion of the family court. See Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). We will not disturb the family court's ruling absent an abuse of that discretion. "An abuse of discretion will only be found when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014).
The family court's decision must also be based upon adequately supported facts. Its factual findings shall not be set aside unless clearly erroneous - that is, if they are manifestly against the weight of the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008).
However, a family court's decision to restrict timesharing is prohibited absent a finding that timesharing without such restrictions would seriously endanger the child's physical, mental, moral, or emotional health. KRS 403.320(2).
III. Analysis
Because the circuit court's reduction of Melissa's timesharing is so severe, she argues that the family court's order was a de facto modification of custody from joint custody to sole custody in favor of Joseph. She further argues that the de facto change in custody was effected within two years of the initial custody order without first finding that the children's current environment seriously endangers their physical, mental, moral, or emotional health, all in violation of KRS 403.340.
KRS 430.340(2) states, in pertinent part: "No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that: (a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health[.]"
We do not agree with Melissa's characterization of the order. It addresses timesharing only and does not purport to amend custody.
Under Kentucky law, modifying or otherwise affecting timesharing does not alter the nature of joint custody. Pennington, 266 S.W.3d at 768. Employing no less than considerable efforts, our Supreme Court has endeavored often to distinguish between custody and timesharing. Yet, confusion endures. Pennington makes clear that the term custody "means more than who has physical possession of the child." 266 S.W.3d at 767. Rather, custody refers to who has "responsibility for and authority over [the parties'] children[.]" Id. at 764. The term timesharing refers to "how much time a child spends with each parent[.]" Id. at 767.
Here, Joseph was not seeking to alter the joint custody award, and "both parents are retaining their decision-making authority, while the time each parent spends with the children is being changed." Shafizadeh v. Bowles, 366 S.W.3d 373, 376 (Ky. 2011). Joseph is not free to make unilateral decisions regarding the meaningful needs of the children without first consulting Melissa. Again, decision-making is vested in both parents; "how often the [children's] physical residence changes or the amount of time spent with each parent does not change this." Pennington, 266 S.W.3d at 767. That is the very nature of joint custodianship. Id. The family court issued harsh restrictions as to where and to what extent the children spend time with Melissa; however, it did not, as Melissa suggests, modify the joint custodianship.
This leads us to Melissa's next argument, which we find meritorious.
Melissa does not dispute the circuit court's authority to modify timesharing under KRS 403.320(3). However, she argues, and we agree, that the circuit court went beyond modification and restricted timesharing contrary to KRS 403.320. We conclude that the circuit court's order is a restriction of the reasonable timesharing to which Melissa is "entitled" as contemplated by KRS 403.320(1) and which was awarded in the decree.
Although KRS 403.320 speaks to visitation rather than timesharing, our Supreme Court has declared that the statute provides the relevant standard for determining the circumstances for modifying timesharing. Pennington, 266 S.W.3d at 768.
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What is reasonable timesharing? In Drury v. Drury, 32 S.W.3d 521 (Ky. App. 2000), we applied the "reasonable visitation" standard of KRS 403.320(1) to timesharing orders in shared custody cases and explained:
What constitutes "reasonable visitation" is a matter that must be decided based upon the circumstances of each parent and the children, rather than any set formula. When the trial court decides to award joint custody, an individualized determination of reasonable visitation is even more important. A joint custody award envisions shared decision-making and extensive parental involvement in the child's upbringing, and in general serves the child's best interest. . . . A visitation schedule should be crafted to allow both parents as much involvement in their children's lives as is possible under the circumstances.Id. at 524 (emphasis added). The decree, as originally modified, is consistent with these principles awarding reasonable timesharing.
Timesharing, like visitation, can be restricted. Although a bit circular, "the term 'restrict' means to provide [a] parent with something less than 'reasonable visitation [which we can now also read as 'timesharing'].'" Kulas v. Kulas, 898 S.W.2d 529, 530 (Ky. App. 1995). The nature of the order we are reviewing certainly is something less than reasonable timesharing.
Melissa's joint-custodial timesharing has been reduced to less time with her children than is enjoyed by a non-custodial parent under a typical visitation order. There is a severe geographic restriction and, finally, Joseph has ultimate say over Melissa's timesharing even within that restriction.
The modification order restricts Melissa's timesharing to Leslie County as though that location is the only safe haven in the world for the children when they are in their mother's care. We have no doubt that this order restricts timesharing, as that term is intended in the second half of KRS 403.320(3), rather than modifies it as understood in the first half.
Any restriction of a parent's reasonable timesharing must comply with KRS 403.320(3), which says: "the court shall not restrict a parent's visitation [or timesharing] rights unless it finds that the visitation [or timesharing] would endanger seriously the child's physical, mental, moral, or emotional health." See also Pennington, 266 S.W.3d at 769 ("[A] court 'shall not restrict a parent's visitation rights' unless allowing visitation would seriously endanger the child.").
The circuit court did not find serious endangerment. The fact that the court delayed the effect of the order until the end of the children's school term indicates there was no immediate concern that Estep will visit any harm upon the children. By its own words, the circuit court found only that this restriction was ordered "in the best interests of the children[.]" (Record at 166, Order, July 21, 2014). The "best-interests" standard is not applicable here and its application justifies reversal. Hornback v. Hornback, 636 S.W.2d 24, 26 (Ky. App. 1982) (reiterating a "parent has absolute entitlement to visitation unless there is a finding of serious endangerment to the child. No 'best interests' standard is to be applied").
We do not doubt the court's concern for the safety of the children and, specifically, that they be protected from one particular individual. That same concern is evinced in the original decree, as modified, which stated that "the children shall have no contact with Eddie Estep." However, nothing indicates that Melissa lacks an equal or greater concern for her children than that of the court. On the contrary, the record demonstrates the opposite.
Melissa is aware of the potential threat posed by Estep and she demonstrated an ability to handle that threat under the original timesharing arrangement. For example, she did not hesitate to call the police when Estep appeared in her yard unexpectedly. Her efforts successfully and entirely insulated the children from Estep for nearly a year prior to the hearing on the motion to modify timesharing. The court's decision to delay the effect of its restrictions indicates its confidence that she can continue to do so, at least for the duration of the school year.
It is possible, perhaps even probable, that were the order allowed to stand the potential of harm to the children would be reduced. But that is not the standard. Absent a finding that the children are currently exposed to unacceptable endangerment, the order cannot stand.
On this record, there is no justification for restricting Melissa's timesharing to less than what would be reasonable time and conditions. More importantly, there is no finding of endangerment to the children should timesharing continue in accordance with the original decree, as modified.
While the change in primary residential parent, in and of itself, is not a restriction but only a modification, Pennington, 266 S.W.3d at 769, such a change is inextricably intertwined with the determination of "where and to what extent the child spends time[.]" Id. (emphasis added). Therefore, both the re-designation of the primary residential parent and the restricted timesharing attendant to that re-designation must be revisited by the family court.
We "will only reverse a trial court's determinations as to visitation [or timesharing] if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury, 32 S.W.3d at 525. We believe those circumstances are present here.
IV. Conclusion
For the foregoing reasons, we reverse the Harlan Circuit Court, vacate its order entered July 21, 2014, and remand for reinstatement of the previous timesharing order. Nothing herein prevents subsequent proceedings to modify timesharing based on the principles set forth herein, provided that such modification, in the absence of a finding of endangerment, continues to afford Melissa reasonable parenting time with the children.
MAZE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Daniel Sherman
Greenville, Kentucky
NO BRIEF FOR APPELLEE