Chalupa v. Chalupa, s. 90-CA-001145-M

• Decision Date: 01 May 1992
• Docket Number: Nos. 90-CA-001145-M,92-CA-000165-MR,s. 90-CA-001145-M
• Citation: 830 S.W.2d 391
• Parties: David C. CHALUPA, Appellant, v. Pamela Kay CHALUPA, Appellee. and David C. CHALUPA, Appellant, v. Pamela Kay CHALUPA and Alvin Delano Bailey, Appellees.
• Court: Kentucky Court of Appeals

Page 391

830 S.W.2d 391

David C. CHALUPA, Appellant, v. Pamela Kay CHALUPA, Appellee. and David C. CHALUPA, Appellant, v. Pamela Kay CHALUPA and Alvin Delano Bailey, Appellees.

Nos. 90-CA-001145-MR, 92-CA-000165-MR.

Court of Appeals of Kentucky.

May 1, 1992.

Thomas W. Lavender, Ashland, for appellant.

James E. Armstrong, Greenup, for appellee, Pamela Kay Chalupa.

Jeffrey D. Hensley, Flatwoods, for appellee, Alvin Delano Bailey.

Before HUDDLESTON, SCHRODER and STUMBO, JJ.

SCHRODER, Judge.

This appeal arises out of two consolidated cases stemming from one marital dissolution proceeding.

Pamela Chalupa and David Chalupa were married on May 14, 1985, in Boyd County, and separated on September 28, 1989. The parties had one child (Jeffrey) born as a result of this marriage and the appellee, Pamela, had a subsequent child, which was not fathered by the appellant, David Chalupa, but was born prior to the circuit court's final disposition.

The appellant/husband contends that the trial court erred in: failing to order a psychological examination of the appellee, Pamela Chalupa, before awarding her custody; failing to award joint custody; its division of marital debts; and in failing to alternate the dependency exemption for the couple's child.

KRS 403.290(2) does allow a court to order psychological tests of the child, as well as the parents, in order to assist in making the custody determination. The statute is permissive, not mandatory, and the professional's conclusions are merely expert testimony, or evidence to be considered by the courts (see Brown v. Brown, Ky., 510 S.W.2d 14 (1974)), and not dictates. See KRS 403.270; Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976); and Poe v. Poe, Ky.App., 711 S.W.2d 849 (1986). In reviewing the transcript of evidence, we cannot say the trial court erred in not ordering a psychological examination of the appellee. The evidence of the appellee's sexual misconduct, like the appellant's alcohol abuse, is not relevant unless the misconduct can be shown to affect, or is likely to affect, the child adversely, such that it relates to the best interests of the child. Krug v. Krug, Ky., 647 S.W.2d 790 (1983), and Powell v. Powell, Ky., 665 S.W.2d 312 (1984). The evidence in this case was of the misconduct, not the effect on the child.

The second issue appellant raises concerns the trial court's finding that joint custody was unworkable where both parties were found to be responsible. The trial court held that it was in the best interest of the child to keep the child with the appellee/mother, noting: "The factor that weighs heavily with this court is the factor of the father's absence from home for four days out of each week and on two other days that he does not get home until 8:00 or 9:00 p.m. at night because of his job."

There may be a misunderstanding here of terminology because even in joint custody cases, there is a primary custodian and the issue is not where the child stays. Under KRS 403.270(3), effective July 15, 1980, the court is allowed to grant joint custody if it is in the best interest of the child. Joint custody recognizes that, although one parent may have primary physical possession of the child, both parents share the decision making in major areas concerning the child's upbringing, such as which school to attend, etc., a role traditionally enjoyed by both parents during the marriage. Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984). Joint custody is also a natural progression of our no fault divorce concept (KRS 403.140(c)), recognizing that both parties may be fit parents but not compatible to be married to each other. A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing. Burchell, supra. KRS 403.270 provides that a court may grant joint custody if it is in the child's best interest. The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input and cannot be changed to joint custody unless there was a finding that the child's present environment endangers seriously his physical, mental, moral, or emotional health. KRS 403.340. See Lynch v. Lynch, Ky.App., 737 S.W.2d 184 (1987).

The Hardin v. Hardin, Ky.App., 711 S.W.2d 863 (1986) case recognized the benefits of joint custody even though it found on the facts that when the parents are not sufficiently understanding and mature enough to cooperate in such arrangement, the case should go back to the trial court and a review done to determine which parent would be best suited to be custodian based upon the factors in KRS 403.270. See also Erdman v. Clements, Ky.App., 780 S.W.2d 635 (1989) which holds the subsequent hearing is to be de novo, as if no prior custody determination had been made.

This Court cannot say that the trial court erred in the division of marital debts or the allocation of the dependency exemption. Under CR 52.01, the Appellate Court's review of the trial court's decision is limited to reversing only clearly erroneous findings, keeping in mind that the trial court had opportunity to hear evidence and observe witnesses so as to judge credibility. Bealert v. Mitchell, Ky.App., 585 S.W.2d 417 (1979). In the case sub judice, the trial court heard evidence and ruled...