Cherry v. Cherry, 81-SC-896-DG
| Citation | 634 S.W.2d 423 |
| Decision Date | 15 June 1982 |
| Docket Number | No. 81-SC-896-DG,81-SC-896-DG |
| Parties | Cynthia J. CHERRY, Movant, v. Timothy P. CHERRY, Respondent. |
| Court | United States State Supreme Court (Kentucky) |
William A. Hoskins, III, Nave, Williams & Palmore, Lexington, for movant.
C. Randall Raine, Lexington, for respondent.
Cynthia and Timothy were married on August 15, 1970. Their first child Todd was born September 13, 1972, and their second and final child Ryan was born on December 30, 1974. The parties separated on March 26, 1979, and on the same date Cynthia filed a dissolution of marriage action in the Fayette Circuit Court. On January 8, 1980, Timothy filed an affidavit in support of a written motion for temporary custody of the two children. The trial court, in the absence of Cynthia and her counsel, granted Timothy's motion. On January 17, 1980, Cynthia sought to have the temporary custody order set aside and moved the trial court to grant her the temporary care, custody and control of the two children. On March 3, 1980, the trial judge granted Cynthia's motion and ordered that she have the temporary care, custody and control of Todd and Ryan. This action was tried to the court on August 18 and 20, 1980. Findings of fact and conclusions of law were filed by the trial judge on September 25, 1980. A decree in which custody of Todd and Ryan was awarded to Cynthia was entered on December 11, 1980.
The Court of Appeals reversed the trial court on the issue of custody. In doing so, it said: "The trial judge gave no reason for his findings hereinabove set forth." The Court of Appeals further said: Custody of the children was thereupon awarded by the Court of Appeals to Timothy, their father.
One of the issues presented is did the Court of Appeals, acting as a finder of fact, improperly conclude that the trial court's decision was clearly erroneous.
A reading of the transcript of evidence discloses that on several occasions movant made gestures toward attempting to take her own life; that she expressed to respondent a fear that she may do harm to their younger child; that on numerous occasions movant would telephone for the respondent to come home from work to assist her with the children; that she was distraught over conflicts occurring in her marital relationship and the rapidly deterioration of her marriage; that she individually, as well as she and her husband together, attended numerous counseling sessions with psychiatrists and psychologists; that movant is a good homemaker and regularly baby sat for her neighbors; that Todd and Ryan are usually well behaved children; that movant is a good mother; that Todd is a diabetic; that the parties were straining to meet their financial obligations; and that respondent contended that he had come home early from work so as to be with the children. However, the record reflects that he found time on many occasions to visit a girlfriend and stayed overnight on at least one occasion, and that during the time that respondent had temporary custody of the children, his mother and father took care of them. In characterizing his relationship with the children, the respondent was asked the following questions and made the following answers:
"Q. Do you have a preference regarding custody of the children in the action?
A. Yes. I am seeking custody.
Q. And will you state for the court if you will the grounds upon which you seek custody?
A. I am very close to the two boys. We have enjoyed a lot of things together. Unfortunately there has not been all the time I wanted to spend with them, but the time I have spent has been of quality. I think that I can be the model role that they need to grow up and to mature, and there is really no sacrifice I would not be willing to make for them."
In contrasting movant's ability to care for the children subsequent to the dissolution of the marriage of these parties, respondent said:
"...
Psychiatric evaluation of movant's adequacy to care for the children is described by Dr. Meegan, a clinical psychologist, as follows:
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