Burton v. Burton, Ky COA, Modification of Parenting Time

Rebecca Josephine Burton v. Nicholas Martin Burton

No. 2011-CA-000573-ME

Published: Opinion Affirming

County: Lyon

Rebecca Burton appeals from an order of Lyon Circuit Court modifying parenting time in favor of Nicholas Burton.

The parties are parents of two children, Liam and Megan.  When they were divorced in 2006, they agreed to joint custody with Rebecca as the primary physical custodian. After the divorce, Rebecca attended school and worked at Dress Barn, and within a few months, she and the children moved in with her boyfriend, James, to which Nicholas voiced no objection.  Immediately after the divorce, Nicholas had limited involvement with the children and Rebecca requested the court to require him to spend more time with the children and assist with childcare while she was in school or working.

In December 2010, Nicholas filed a motion for modification of custody and ex parte relief and alleged the children should be removed from Rebecca’s home because he believed their physical and emotional well-being was at risk.  His numerous complaints included allegations that another adult male had moved into Rebecca’s home, that the children were sent to school unclean, inappropriately dressed and without lunch money, that Megan showed no interest in the children’s school work, and Rebecca failed to provide proper medical, dental and vision care for them.  An ex parte order granted temporary sole custody to Nicholas who immediately removed the children from Rebecca’s care.  On Rebecca’s subsequent ex parte motion, the ex parte order of sole custody was vacated and a hearing was held.

Although James testified that his friend, Jay Harbin, had stayed in their home on several occasions, he had not moved in.  Harbin had a 15 year old drug conviction, however, and the trial court found that exposing the children to a convicted felon was not in their best interest.  James has three older children who visit on weekends, and the kids enjoy sleeping on couches and sleeping bags.  The trial court found this “obviously interrupted” the children’s routine.  Rebecca’s failure to sign Megan’s reading log consistently led the trial court to conclude that she did not read with Megan regularly.  Teachers did not attribute any improvement in Liam’s behavior to anything Nicholas was doing and further testified that the children were clean and appropriately dressed.  Rebecca presented evidence that she provided health and dental care for them.

Rebecca presented evidence that Nicholas was arrested for drunk driving in 2008 while on his way to pick up the children.  An officer responding to a complaint about his reckless driving from a passerby found Nicholas and his car on a stranger’s lawn.  He was unable to stand up, had urinated on his pants, and failed field sobriety tests.  He admitted having taken Ambien but failed to explain the erratic driving.  The trial court found this incident of “little probative value.”

After the hearing, the trial court entered findings of fact and conclusions of law and designated Nicholas as the primary residential parent, to which order Rebecca filed this appeal.

At the outset, the Court of Appeals reiterated the holding in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) that under a request for modification of parenting time, the trial court considers the best interest of the child as set forth in KRS 403.320.

When reviewing a custody decision, the test is whether the trial court’s findings were clearly erroneous or the decision was an abuse of discretion.  Findings of fact are only clearly erroneous when they are manifestly against the weight of the evidence.  The test is not whether the appellate court would have reached a different ruling, but whether the trial court’s ruling was clearly erroneous, whether it applied the current law, or whether it abused its discretion.

In this case, the CA could not say the TC’s findings of fact were clearly erroneous or that it applied incorrect law.  Based on those findings, the trial court decided Nicholas should be the primary residential parent.  The CA held that the trial court was in the best position to judge the credibility of the evidence and would not substitute its judgment on appeal.  Discerning no reversible error with the trial court’s findings of fact and conclusions of law, the Lyon Circuit Court Order was affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.