634 S.W.2d 423 (Ky. 1982), 81-SC-896, Cherry v. Cherry

Docket Nº:81-SC-896-DG
Citation:634 S.W.2d 423
Opinion Judge:STERNBERG, Justice.
Party Name:Cynthia J. CHERRY, Movant, v. Timothy P. CHERRY, Respondent.
Attorney:William A. Hoskins, III, Nave, Williams & Palmore, Lexington, for movant. C. Randall Raine, Lexington, for respondent.
Case Date:June 15, 1982
Court:Supreme Court of Kentucky
 
FREE EXCERPT

Page 423

634 S.W.2d 423 (Ky. 1982)

Cynthia J. CHERRY, Movant,

v.

Timothy P. CHERRY, Respondent.

No. 81-SC-896-DG

Supreme Court of Kentucky

June 15, 1982

William A. Hoskins, III, Nave, Williams & Palmore, Lexington, for movant.

C. Randall Raine, Lexington, for respondent.

STERNBERG, Justice.

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

Page 424

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: "When we view this record as a whole ... we can only come to the inescapable conclusion that the evidence clearly reflects that the best interests of the children are served by placing them in the custody of the appellant and it will be so ordered. The contrary result reached by the trial court is clearly erroneous. We have so concluded not only with the provisions of KRS 403.270 in mind but also the principle that we are not concerned with what might be best for a parent but rather what is best for the children." 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...

To continue reading

FREE SIGN UP