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Commonwealth Of Kentucky Court of Appeals
NO. 2005-CA-002340-ME

LORI KAY GULLEDGE FOX

APPELLANT

v.

APPEAL FROM WARREN FAMILY COURT HONORABLE MARGARET RYAN HUDDLESTON, JUDGE ACTION NO. 01-CI-01034

BRIAN EDWARD FOX

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: JOHNSON1 AND TAYLOR, JUDGES; BUCKINGHAM,2 SENIOR JUDGE. Lori Kay Gulledge Fox has appealed from the

JOHNSON, JUDGE:

order entered by the Warren Family Court on July 22, 2005, naming Brian Edward Fox as the primary residential custodian of the parties' two minor children. Having concluded that the

family court's findings in support of the modification of

1

Judge Rick A. Johnson completed this opinion prior to the expiration of his term of office on December 31, 2006. Release of the opinion was delayed by administrative handling. Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

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custody pursuant to KRS 403.340 and KRS 403.270(2) were sufficient and that it did not abuse its discretion, we affirm. Lori and Brian were married on March 15, 1986, in Marion, Illinois. Two children were born of the marriage,

namely Branden Edward Fox, whose date of birth is October 7, 1992, and Brian Andrew Fox, whose date of birth is July 15, 1994. The parties were divorced by decree of dissolution The decree

entered in the Warren Family Court on March 8, 2002.

incorporated a custody and support agreement between Lori and Brian dated July 5, 2001, as well as a supplemental agreement dated November 30, 2001. The July 5 agreement stated that the

parties would share joint custody of the minor children, with Brian being designated as the primary residential custodian. However, the November 30 agreement stated that the parties would have a shared parenting schedule, with neither party being a primary custodian.3 On December 23, 2003, Brian filed a motion wherein he stated that the parties could not reach an agreement concerning the time the children spent at each home. Brian expressed his

concern that the children needed a more predictable and structured schedule, and he proposed such a schedule in his motion. On February 3, 2004, Lori filed a motion requesting the

3

In his brief, Brian states that he "acquiesced to the [s]upplemental [a]greement only after receiving assurances from [Lori] that her detrimental actions and behavior involving the children would cease and desist."

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trial court to enforce the shared parenting agreement as incorporated into the decree of dissolution. No hearing was

held on either motion and no order was entered. On May 25, 2004, Brian filed a verified motion for modification of the custody decree. 8, 2004. A hearing was held on July

Testimony was presented from both Lori and Brian, as

well as Debra Champion, a clinical psychologist,4 Renee Brown, the children's school guidance counselor,5 and Scott Nelson, Lori's former boyfriend. Additionally, the family court

conducted an in camera interview with the oldest child, Branden. In its decree modifying custody, entered over one year later on July 22, 2005, the family court awarded joint custody to the parties, with Brian designated as the primary residential custodian. On August 1, 2005, Lori filed a motion to alter, amend, or vacate the decree modifying custody. Lori

specifically stated that the allocation of co-parenting time between the parties was conflicting, that the modification of custody was not supported by substantial evidence, and she requested a specific finding regarding the qualifications of Brown to render an opinion relating to custody.
4

Brian responded

Champion had counseled Lori's boyfriend, Mike Hood, for substance abuse rehabilitation, and had also counseled Lori and Hood on issues concerning their relationship. Brown's testimony was provided via a videotaped deposition taken on June 17, 2004.

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to the motion on September 30, 2005.

The family court entered This

an order on October 13, 2005, denying Lori's motion. appeal followed.

In reviewing a child custody award, the appellate standard of review includes a determination of whether the factual findings of the family court are clearly erroneous.6 A

finding of fact is clearly erroneous if it is not supported by substantial evidence. Substantial evidence is evidence

sufficient to induce conviction in the mind of a reasonable person.7 Since the family court is in the best position to

evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court.8 If the findings of fact are supported by

substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion.9 Abuse of discretion

implies that the family court's decision is unreasonable or

6 Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). 7

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972); and Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62, 64 n.58 (Ky. 1970)).
8

Reichle, 719 S.W.2d at 444.

Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky.App. 2002).

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unfair.10

Thus, in reviewing the decision of the family court,

the test is not whether the appellate court would have decided the issue differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.11 In the case before us, the family court conducted an extensive evidentiary hearing and heard testimony from several witnesses. The crux of Lori's first argument seems to be her

dissatisfaction with the family court's reliance on certain conflicting testimony in its custody determination. The family court properly noted that for a proposed modification occurring more than two years after entry of the custody decree, KRS 403.340(3) and (4)12 set forth the

10 11

Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). Sherfey, 74 S.W.3d at 782-83. KRS 403.340(3) and (4) states as follows: If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, the court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following: (a) (b) Whether the custodian agrees to the modification; Whether the child has been integrated into the family of the petitioner with consent of the custodian;

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requirements which must be met to modify a prior custody award. The family court stated as follows: The Court has considered all of the factors [in KRS 403.340], and the Court will now discuss its findings. The first factor concerns whether the custodian agrees to the modification. The parties are not in agreement. The second factor concerns whether the children have been integrated
(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child; Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health; Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and Whether the custodian has placed the child with a de facto custodian.

(d)

(e)

(f)

(4)

In determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to: (a) The interaction and interrelationship of the child with his parent or parents, his de factor custodian, his siblings, and any other person who may significantly affect the child's best interests; The mental and physical health of all individuals involved; Repeated or substantial failure, without good cause as specified in KRS 403.240, of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support; If domestic violence and abuse, as defined in KRS 403.720, is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents.

(b) (c)

(d)

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into the family of the Respondent with consent of the custodian. In the case at bar, considering the shared parenting arrangement, the children have been integrated into both parents' homes. Factor (c) requires a consideration of KRS 403.270(2)[.]13 The Court will now consider the first factor of KRS 403.270(2). Respondent, Brian Fox, desires to modify the custody arrangement to allow him to have sole custody or joint custody with him serving as the primary residential custodian. The Petitioner, Lori Fox, desires to continue the current week to week arrangement. The second factor addresses the wishes of the child. The Court interviewed Branden, the oldest son, but did not interview the younger son, Andrew. Branden was cautious not to state a preference toward one parent or the other. He did however relate that, prior to his Dad's recent marriage, he "mainly lives with Dad and stays with Mom twice a week, but still sees them daily[.]" He also stated that he stayed "three days with Dad, two days with Mom, two with Dad,
13

KRS 403.270(2) states, in relevant part, as follows: The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de factor custodian. The court shall consider all relevant factors, including: (a) (b) (c) The wishes of the child's parent or parents, and any de factor custodian; The wishes of the child as to his custodian; The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests; The child's adjustment to his home, school, and community; The mental and physical health of all individuals involved; [and] Information, records, and evidence of domestic violence as defined in KRS 403.720[.]

(d) (e) (f)

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three with Mom, etc." He further stated, "Both parents said this was too much switching back and forth." Branden stated that his mother was living with boyfriends-- first Mike, then Tim, then Scott. His father is now remarried to Candace who has a son and two daughters. The next factor concerns interaction and interrelationships, and the Court finds that the children have a good relationship with their father, his current wife and step-siblings. The children apparently have a strong loving bond with both parents and as stated by Branden, "Doesn't want parents to be angry or sad." Each child has demonstrated anger toward their mother for various reasons, such as bribes, transient boyfriends in the home, lack of structure, and verbal arguments in their presence regarding their father and his current wife. The next factor is the child's adjustment to home, school, and community. The Court finds both children have become completely assimilated into the home of [Brian]. . . . And although each child is accustomed to being at [Lori's] home regularly, the dynamics of the mother's home and her behavior have caused anger and frustration for both boys. The Court also finds that [Brian] is mentally and physically healthy. [Lori] continues to struggle with her own emotional turmoil regarding the parties' divorce and that emotional turmoil continues to cause angst and anger in the boys. Lastly, although [Lori] has had outbursts of anger and manipulative behavior, domestic violence is not an issue in this matter so the last factor does not apply. The fourth factor to consider, pursuant to KRS 403.340(d), is whether each child's present environment endangers seriously his physical, mental, moral, or emotional health. The factors the Court must consider to determine whether each child's present environment endangers his health are set forth in KRS 403.340(4). The first factor

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is the interaction and interrelationship of the child with those individuals who significantly affect the child's best interests. The Court finds the children get along well with [Brian], his current wife and step-siblings. As stated above, the boys have a strong bond with their mother but have developed anger toward their mother which has affected each boy's behavior at school and has necessitated counseling for both. The school guidance counselor, Renee Brown, testified that both boys demonstrated anger toward their mother and that Andrew was frequently tearful at school even when on the playground with his peers. That both boys described their mother's bribes and attempts to buy their devotion. She further testified that the current custody arrangement allowed the boys to be in control of where and when they stayed with a parent causing a lack of structure and stability. The second factor is the mental and physical health of all individuals involved. The Court once again finds that [Brian] and his current wife [are] in good mental and physical health. [Lori] has been diagnosed with clinical depression and was prescribed Prozac. Her behavior continues to show tendencies toward depression and emotional outbursts with manipulative behaviors, such as bribing the boys with an award of a thousand dollars if they would disrupt their father's wedding. The next factor does not apply, because the parties have complied with the provisions of their custody agreement. No evidence was presented to this Court of any domestic violence occurring between the parties when the child was present. After considering the factors, the Court finds the children's present environment does seriously endanger the children's physical, mental, moral, or emotional health. Most particularly, each child's mental and emotional health is being compromised by the current arrangement. The boys have demonstrated a need for more structure and less turmoil.

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The Court will now consider whether the harm likely to be caused by a change of environment is outweighed by the advantages, pursuant to KRS 403.340(e). The children are accustomed to living with [Brian] and a more structured living arrangement will not harm either child but will allow each to shift back into the role of a child rather than the decision-maker as to where to stay from night to night and whether or not the decision will hurt the feelings of the other parent. Further, the Court finds [Brian] is able to provide each child with a more stable nurturing environment. Consequently, the Court finds a modification in custody would provide significantly more advantages than harm to each child. The last factor to consider is whether the custodian has placed the child with a de factor custodian, and the Court finds the factor does not apply. Therefore, the Court, after considering all of the factors necessary under KRS 403.340, finds that custody should be modified. The Court finds a change has occurred in the circumstances of each child and his custodian. Further, the Court finds a modification in custody would serve the best interests of both children at this juncture. The family court's designation of Brian as the primary custodian is an exercise of its discretion and, therefore, will not be disturbed unless it is unreasonable.14 Before exercising

its discretion, the family court found that the children had been integrated into both Brian's home and Lori's home and that each could provide a loving home for the children. However, the

family court also found that Brian could provide a more
14

Sherfey, 74 S.W.3d at 783.

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physically stable home and that a change from a shared parenting agreement to joint custody with a primary custodian would provide more significant advantages to the children than harm to them, including reversing each child's role from decision-maker back to child. Based upon the evidence, the family court

determined that the children's best opportunity to receive love and nurturing from both parents was with Brian serving as a primary custodian. We cannot conclude that that determination

was an abuse of discretion. Lori's remaining argument relates to the qualifications of Renee Brown, the children's school guidance counselor, to express her opinion regarding a change of custody. Lori takes exception to the family court's consideration of Brown's testimony in its modification of custody because Brown was not qualified as an expert witness and because Brown based her opinion on hearsay information. KRE15 702 governs the admissibility of expert opinion testimony and states as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

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Kentucky Rules of Evidence.

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A family court's determination as to whether a witness is qualified to give expert testimony under KRE 702 is subject initially to a factual finding as to whether the expert witness's testimony is reliable. This factual finding is Once the family

reviewed under the clearly erroneous standard.16

court has determined that certain testimony is reliable, it must then exercise proper discretion in determining if it is admissible.17 "An abuse of discretion occurs when a `trial

judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'"18 Thus, the reliability

of the expert's testimony is reviewed for clear error, while the determination as to whether certain testimony assists the trier of fact is reviewed for an abuse of discretion. Here, the family court utilized three sentences in a six-page document to discuss the testimony of Brown. While it

is clear that the family court made no finding that Brown was qualified as an expert to testify as to custody modification, the family court did not utilize any of Brown's testimony concerning her opinion regarding the custody of the children. To the extent the testimony given by Brown relied upon hearsay,
16

Miller v. Eldridge, 146 S.W.3d 909, 914-15 (Ky. 2004).

Id.; Farmland Mutual Insurance Co. v. Johnson, 36 S.W.3d 368, 378 (Ky. 2001); Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299 (Ky.App. 1997).
18

17

Farmland Mutual, 36 S.W.3d at 378 (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).

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these were the types of out of court statements from interviewing the children that an expert would typically rely upon in gathering information to form an opinion, and these statements were consistent with other testimony given during the hearing. Nonetheless, we conclude that to the extent the family

court erred in considering Brown's testimony, it was harmless error. It does not appear that the family court placed much

weight on Brown's testimony; and to the extent that it did, Brown's testimony was consistent with other evidence before the family court. For the foregoing reasons, the order of the Warren Family Court is affirmed. ALL CONCUR.

BRIEF FOR APPELLANT: Julie Shadoan Bowling Green, Kentucky

BRIEF FOR APPELLEE: Frank Hampton Moore, Jr. Matthew P. Cook Bowling Green, Kentucky

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