Lunsfordv.Lunsford

Commonwealth of Kentucky Court of AppealsApr 25, 2014
NO. 2013-CA-000542-ME (Ky. Ct. App. Apr. 25, 2014)

NO. 2013-CA-000542-ME

04-25-2014

CHARLOTTE LUNSFORD APPELLANT v. THERESA LUNSFORD APPELLEE

BRIEF FOR APPELLANT: Charlotte Ann Lunsford, pro se Crossville, Tennessee NO BRIEF FOR APPELLEE


NOT TO BE PUBLISHED


APPEAL FROM KENTON FAMILY COURT

HONORABLE CHRISTOPHER J. MEHLING, JUDGE

ACTION NO. 11-CI-01056


OPINION

AFFIRMING

BEFORE: CLAYTON, DIXON AND MAZE, JUDGES. MAZE, JUDGE: Appellant, Charlotte Lunsford, appeals from an order of the Kenton Family Court denying her motions for unsupervised visitation with her daughter, S.A., and for recusal of the trial court judge presiding over the matter. Finding no error or abuse of discretion in the trial court's decisions, we affirm.

Charlotte is the mother of S.A., a minor. In 2008, Charlotte became the subject of a neglect and abuse petition due to her relationships with, and repeated exposure of S.A. to, domestically violent men. The petition also alleged that S.A. had witnessed both physical violence and verbal abuse against Charlotte by Charlotte's then-paramour. As a result of this petition, S.A. was removed from Charlotte's care and eventually placed with Theresa and Riley Lunsford, the latter being S.A.'s great-uncle. Under the orders put in place in the neglect and abuse case, Charlotte enjoyed supervised visits with her daughter. Theresa and Riley gained permanent custody of S.A. in 2009; however, they later divorced and Theresa retained custody of S.A.

Theresa, as Appellee, did not file a brief in the current appeal. Under CR 76.12(8), we would typically be entitled to adopt Charlotte's portrayal of the facts and issues as true, to reverse the trial court if Charlotte's brief supports such a result, or consider Theresa's silence as a confession of error. However, these sanctions are used at our discretion and are not mandatory. See Kupper v. Kentucky Bd. of Pharmacy, 666 S.W.2d 729, 730 (Ky. 1983). Furthermore, it has been held that the latter of these sanctions is inappropriate in the context of a child custody case. See Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky. App. 1971). For these reasons, we elect not to sanction Theresa for her failure to file a brief in this appeal.

For a period of time after Theresa received permanent custody of S.A., the ordered supervised visits between S.A. and Charlotte occurred without incident. However, after Charlotte began a romantic relationship with Dennis Phillips, these visits became sporadic and, at times, ceased altogether because Theresa perceived Phillips as a threat to her safety during visits, which Phillips insisted on attending. This followed Theresa's receipt of two letters written by Phillips to appear as if composed by Charlotte and which threatened Theresa and disparaged both her and Charlotte.

The second letter informed Theresa, who was then in a same-sex relationship, "you should be ashamed of yourself living with that ... dike with the half breed kids. [S.A.] deserves better." A subsequent letter, addressed to the child's guardian ad litem, stated, in part, "don't pit Charlotte's rights, Christian beliefs and our unblemished backgrounds against the non rights of lesbians, Non biological foster parents or Theresa's 'savory' at best background...."

In 2011, Charlotte filed to regain custody of S.A. after Theresa's continued refusal to permit visitations in which Phillips was involved. In an order entered March 8, 2012, the trial court denied Charlotte's motion, citing its desire that there be contact between Charlotte and S.A., but ultimately concluding that Charlotte's relationship with Phillips caused Theresa reasonable concern. Accordingly, the trial court ordered that Charlotte's visits continue to be supervised and that Phillips not be on the premises during those visits.

Nearly two months after the trial court entered its order, Charlotte sought to hold Theresa in contempt for her failure to facilitate two weekly supervised visits between Charlotte and S.A. Charlotte's motion for contempt was also accompanied by another motion for unsupervised visitation. Charlotte filed two additional such motions on May 10, 2012. At the hearing on these motions, Charlotte failed to appear and the trial court denied her motions to hold Theresa in contempt. However, the court scheduled the matter of unsupervised visitation for a hearing.

During the January 10, 2013 hearing, the trial court heard that Charlotte was still dependent upon Phillips both financially and for purposes of transportation to visits with S.A. Theresa testified to her continuing fear of Phillips and to Charlotte's insistence that Phillips accompany her on visits. The court also heard testimony that when visits were permitted, on at least one occasion, Phillips did not leave the premises as required by court order.

Following the hearing but before the trial court issued its formal findings, conclusions and order, Charlotte filed a motion seeking the trial court judge's recusal from the case, citing bias and the court's allegedly unfounded concerns regarding Phillips as stated during the hearing. Charlotte alleged that the trial court was no longer fair and impartial because it had allegedly stated she would never be able to have unsupervised visits with her child.

On February 4, 2013, the trial court entered its Findings of Fact, Conclusions of Law and Order. Specifically, the trial court found that Charlotte's complete dependence upon Phillips and refusal to follow court orders regarding Phillips's presence at visits with S.A. made unsupervised visits between her and S.A. "inappropriate." The trial court further expressed its belief that Phillips had authored the threatening documents submitted to Theresa and others, as well as numerous legal documents regarding this case. Ultimately, the trial court denied both of Charlotte's motions on these bases. Charlotte now appeals.

The court based this conclusion, in part, on the fact that Charlotte suffers from "mild mental retardation" and has an I.Q. of 62. However, the trial court previously concluded that Charlotte at least knew of Phillips's actions and she, in fact, signed several of the documents in question.

Analysis

We first review the trial court's denial of Charlotte's motion to recuse. In doing so, we owe the trial court's decision great deference and will not reverse that decision absent an abuse of discretion. See Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky. 2001). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

A trial court judge is required to recuse himself or herself whenever he or she "has a personal bias or prejudice concerning a party or . . . his or her impartiality might reasonably be questioned." Nichols v. Commonwealth, 839 S.W.2d 263, 265 (Ky. 1992) (citing KRS 26A.015(2)(a) and (e); Sup. Ct. Rules 4.300, Canon 3C)). However, upon a timely motion for recusal, "[t]he burden of proof required for recusal of a trial judge is an onerous one." Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001). "There must be a showing of facts 'of a character calculated seriously to impair the judge's impartiality and sway his judgment.'" Id. (citing Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961)).

This statute holds, in pertinent part: (2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding: (a) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding ... [or] (e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.

(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration . . . ."

From Charlotte's brief, we are able to glean only general accusations of bias against the trial court judge. For example, she asserts that, "Judge Christopher Mehling must be removed from this case for being unfit, unable, or unwilling by reason of mental defect, or an evil intent to discriminate against the petitioners [sic] protected rights and the laws of the state of Kentucky...." She also asserts, very generally, the "wrongful" and "evil" conduct by the trial court judge. However, Charlotte is unable to point this Court toward even one example in the record which demonstrates such conduct. Charlotte contends that the trial court treated her differently because of her disability; however, she does not indicate when or where in the record this alleged disparate treatment occurred and we are unable to find any evidence of such treatment upon our own review.

Based on this, we are only able to conclude that Charlotte simply disagrees with the trial court's statements at the hearing and in its subsequent Order; and a "trial court's adverse rulings, even if erroneous, do not provide a basis for finding bias." Bissell v. Baumgardner, 236 S.W.3d 24, 29 (Ky.App.2007). In the absence of any specific evidence of impartiality on the part of the trial judge, we decline to entertain Charlotte's accusations further. It suffices to say that Charlotte's claims fall well short of her burden of proving bias or an abuse of the trial court's discretion in refusing to recuse himself. Furthermore, we detect no circumstances under which the trial judge was ethically or statutorily required to recuse himself sue sponte.

We next review the merits of Charlotte's argument that the trial court erred in denying her motion for unsupervised visitation. In this context, we will not disturb a trial court's findings of fact unless they are clearly erroneous. See Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Kentucky Rules of Civil Procedure (CR) 52.01. "A factual finding is not clearly erroneous if it is supported by substantial evidence. '"Substantial evidence" is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people." Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002)(citations omitted). Accordingly, the questions for the reviewing court are not whether it would have come to a different conclusion, but whether the family court applied the correct law and whether the family court abused its discretion. See B.C. v. B.T., 182 S.W.3d 213 (Ky. App. 2005). With these precepts in mind, we turn to Charlotte's argument regarding visitation.

Kentucky law provides that a

... 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.

KRS 403.320(3). It is apparent from this statute that a trial court's sole consideration in considering modification of a visitation order is the best interests of the child involved. It is equally apparent to this Court that the present trial court properly considered the facts and appropriately applied this legal standard to those facts.

Charlotte argues at great length regarding her superior visitation rights as a biological parent of S.A. In doing so, she repeatedly refers to her "due process right to family integrity" and attempts to frame the matter as a conflict regarding custody or child-rearing decisions between herself and a foster-parent, which Theresa is not. Rather, this is a case concerning the visitation rights of a biological parent who does not currently possess legal custody of her child. Accordingly, "when only visitation/timesharing modification is sought, the specific language of KRS 403.320(3) controls." Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008).

After using four pages of her brief copying it verbatim, Charlotte sees fit not to credit Kevin B. Frankel for his article which asserts this principle. We will do so. See Kevin B. Frankel, The Fourteenth Amendment Due Process Right to Family Integrity Applied to Custody Cases Involving Extended Family Members, 40 Colum. J.L. & Soc. Probs. 301 (Spring 2007). Furthermore, while we reserve judgment on who the true author of Charlotte's brief may be, we will state that such use of authority without attribution, whether by attorneys or pro se litigants, is an improper practice which has no place before this, or any, Court.

The record before us on appeal is regrettably, but not fatally, incomplete. We are without video record of the hearing which took place on January 10, 2013. However, from the record that is before us, including numerous pleadings from parties, orders drafted by the trial court, as well as Charlotte's brief on appeal, we are able to conclude that the trial court acted correctly and within its discretion in refusing to modify Charlotte's visitation rights. The record in this case indicates Charlotte's repeated association with domestically violent and dominating men, the latest of whom has repeatedly intimidated and disparaged Theresa and other parties, including Charlotte. The record also indicates a relatively amicable relationship between Charlotte and Theresa nonetheless poisoned by Charlotte's insistence that Phillips be present at visitations, despite court orders prohibiting it. The record reflects that Theresa wanted Charlotte to have visitation with her daughter pursuant to the agreed visitation schedule and only refused to permit this visitation when she perceived a threat to herself and to S.A. - a threat Charlotte has done little, if anything, to eliminate.

"It is the responsibility of the appellant to see that the record is prepared and certified by the clerk within the time prescribed by CR 73.08 . . . ." Ventors v. Watts, 686 S.W.2d 833, 834 (Ky. App. 1985).
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Given these facts, we find there to be substantial evidence supporting the trial court's factual findings. We further find that the trial court did not abuse its discretion in determining, based on these and other facts, that modification of the visitation order was not in S.A.'s best interests. We add that the trial court showed remarkable patience in the present case, repeatedly expressing its wish that Charlotte have unfettered access to her child. Despite this wish, and in light of Charlotte's and Phillips's actions in this case, the trial court was correct to conclude that such access was not in S.A.'s best interests.

Conclusion

For the foregoing reasons, we find that the trial court did not err and did not abuse its discretion in overruling Charlotte's motions for recusal and for unsupervised visitation with her daughter. Therefore, the order of the Kenton Family Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Charlotte Ann Lunsford, pro se
Crossville, Tennessee
NO BRIEF FOR APPELLEE