Addison v. Addison, 2012-CA-002210-ME
| Decision Date | 16 May 2014 |
| Docket Number | NO. 2012-CA-002210-ME,2012-CA-002210-ME |
| Parties | LYDIA ADDISON APPELLANT v. KEVIN ADDISON APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
The parties were married in 1999 and their dissolution of marriage proceedings commenced in June 2006. The decree of dissolution of marriage was entered on March 2, 2007. The parties have two children together, S.A. and M.A. Consistent with the terms of the settlement agreement Lydia was awarded sole custody of the children with Kevin receiving reasonable parenting time. Prior to the entry of the dissolution of marriage decree, Lydia moved to Valparaiso, Indiana, which Kevin alleges was to be with a man she met online. Lydia moved in with the new boyfriend.1
Kevin, who is employed by the Army Corp of Engineers, was deployed to Iraq for a period of six months following the parties' separation. Upon his return, Kevin alleges that he immediately began having problems enforcing his visitation with the children. Less than a month after his return, Kevin filed a motion with the court to compel visitation. Lydia counter-filed a petition to domesticate the foreign order in the state of Indiana and sought modification of Kevin's visitation.
The Hardin Circuit Court, Family Division, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), held a telephoneconference with the Hon. James Johnson, the presiding judge over the case in Indiana. The judges concluded that Kentucky was the proper jurisdiction to hear the post-decree issues of the parties.
Thereafter, the Hardin Court heard motions of the parties on various post-decree matters, including matters involving Kevin's visitation over the next few years. Kevin had to file multiple motions to secure his court-ordered visitation. In 2009 Kevin moved the court for modification of custody seeking to be named a joint custodian as he was having difficulty accessing information about the children's medical and education records. Lydia filed a response objecting to modification and stated that she was fully cooperating with Kevin's visitation. The court issued a show cause order for Lydia to explain why she failed to abide by Kevin's parenting time, which was later rescinded and then renewed after her failure to permit Kevin visitation. On March 19, 2010,2 Lydia brought to the court's attention her concern about sexual abuse of the children. Kevin's motion to modify parenting time was overruled in light of the alleged sexual abuse.
Kevin then learned that in 2009, after he filed his motion with the court to modify custody, the children began to receive counseling at Family Focus and were assigned to a person named Danielle Vance. Vance was unlicensed and was related to Lydia's close personal friend.
The sexual abuse allegations were unsubstantiated following an investigation by the Cabinet for Health and Family Services. Kevin moved toreinstate his parenting time. The court overruled this motion based on a letter purportedly tendered by Vance, though the letter was not on official letterhead and was unsigned. The court granted Kevin's motion to reinstate parenting time on July 19, 2010.
After more motions by the parties, the court held a hearing on Kevin's motion to receive unsupervised parenting time. Kevin subsequently filed a motion to have an independent therapist evaluate the children, which the court granted. The agreed-upon therapist would not see the children as they were still being seen by Vance. Thereafter, Kevin filed a motion for the parties and children to be evaluated by Dr. Kelli Marvin, a forensic psychologist that the Hardin Circuit Court utilizes frequently as an expert in child dependency, neglect, and abuse cases, to give objective recommendations to the court regarding Kevin's parenting time and access to the children. The court sustained this motion and ordered Kevin to pay the costs of the evaluation on February 2, 2011. In July 2011, Kevin filed a motion to make up parenting time, as Lydia had failed to cooperate, and a motion to compel Lydia to cooperate with Dr. Marvin. An agreed order was entered by the court on July 27, 2011. Lydia then filed a motion to clarify Dr. Marvin's role and for an additional thirty days to submit information to Dr. Marvin. The court permitted the additional time. A hearing date was set for January 2012 to address Kevin's parenting time.3
Dr. Marvin's report was submitted to the court on January 8, 2012, and consisted of over seventy-five pages. Dr. Marvin recommended that Kevin get liberal and unsupervised access to the children.4 She concluded that regardless of whether Lydia encouraged or supported the generation of allegations of sexual abuse, she played an active role in denigrating Kevin in the children's eyes and that this behavior was consistent with parental alienation. Dr. Marvin noted that in such cases a transfer of primary custody and care is typically recommended as this is viewed as the only means by which to ensure cessation of denigrating behaviors and afford the target parent the time necessary to repair the parent-child relationships. In extreme cases, supervised contact with the denigrating parent is advised. In light of this, Kevin moved for Dr. Marvin to file an addendum to her report regarding custodial recommendations. The court granted Kevin unsupervised visitation based on this report. Kevin moved to modify custody on January 23, 2012.
Dr. Marvin completed the addendum on February 2, 2012. Therein, she recommended that Kevin be awarded primary residential care and custody of the children. Dr. Marvin concluded that this was in M.A.'s best interest, that thechildren should remain together, and that the best interests of S.A. were unknowable.5 Dr. Marvin further concluded that the parties were unable to work cooperatively. Dr. Marvin recommended that Lydia receive visitation, but that supervised visitation should only be undertaken if Lydia is not amenable to therapeutic interventions and there are clear/objective indications that she is attempting to undermine the stability of the subject children's residential/custodial transfer.
Lydia then filed a motion to transfer jurisdiction to Indiana for the first time since 2007, on February 2, 2012. The motion was overruled and a hearing was scheduled for March 30, 2012, regarding modification of custody. Leading up to the hearing both parties filed multiple motions. Lydia filed a motion for an appointment of a guardian ad litem (GAL) for the children, which was granted. Lydia filed a motion with the court to have a custodial evaluation performed by Dr. Zamanian. The court overruled this motion.
The court held a six-hour hearing on this matter on August 16, 2012. During the six-hour hearing, the court heard testimony from the GAL, Lydia, Kevin, and Drs. Marvin, Pi, Trifone, and Zamanian. The children were not permitted to testify. Thereafter, the court entered its findings of fact, conclusions of law, and judgment on October 26, 2012, and transferred custody to Kevin. Lydia received supervised telephonic visitation. Lydia filed motions to haveunsupervised visitation; to supplement the record; and to alter, amend, or vacate the judgment as well as a motion for additional findings of fact. The court entered an order overruling Lydia's motion for unsupervised visitation. Lydia then appealed.
This Court ordered the trial court to rule upon Lydia's motions to alter, amend, or vacate and for additional findings of fact. The trial court subsequently filed a twenty-eight-page order addressing this Court's ruling on June 21, 2013, which we will discuss as applicable infra.
On appeal, Lydia presents a litany of arguments, namely: (1) the trial court erred in retaining jurisdiction over this case where the children had no substantial contact with Kentucky in nearly five years; (2) modification of custody was not in S.A.'s best interest and, thus, this should be reversed; (3) restricting a parent to supervised visitation of one hour per month is reversible error, absent a finding that unsupervised visitation would seriously endanger the child's physical, mental, moral, and emotional health; (4) the court failed to make findings of fact or conclusions of law regarding the parties' financial resources or otherwise address the issue of attorney's fees; (5) the court erred in unnecessarily restricting the time to present evidence and unnecessarily restricting the witnesses who were allowed to testify at trial; (6) the court erred in not allowing Lydia to supplement the record with relevant and probative information; (7) the court erred in relying upon the report of the GAL and her recommendations; (8) the court erred in failing to makemore definite findings of fact; and (9) the court erred in failing to order Kevin to participate in a mental health evaluation with Dr. Zamanian.
Kevin argues: (1) the trial court properly retained jurisdiction over this case under its exclusive, continuing jurisdiction over these child custody proceedings; (2) modification of custody and parenting time was in the best interests of both children; (3) the record supports a finding that unsupervised parenting time would...
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