Barnes v. Barnes

• Decision Date: 20 March 1970
• Citation: 458 S.W.2d 772
• Parties: Edward Louis BARNES, Appellant, v. Shirley Alice BARNES, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 772

458 S.W.2d 772

Edward Louis BARNES, Appellant, v. Shirley Alice BARNES, Appellee.

Court of Appeals of Kentucky.

March 20, 1970.

John Frith Stewart, Segal, Isenberg, Sales & Stewart, Louisville, for appellant.

Josephine Hughett, Hughett, Hughett & Hughett, C. Phillip Deeb, Sr., Deeb, Schaefer & Lohman, Louisville, for appellee.

DEWARD, P. HILL, Jr., Chief Justice.

The controversy on this appeal concerns the custody of Samantha Barnes, now about five years of age, and two other related questions.

By judgment January 14, 1966, in a divorce proceeding between the appellant and the appellee, the latter, the mother, was given custody of Samantha.

On September 20, 1967, appellant filed what he terms 'an amended and supplemental complaint' apparently in the original divorce proceeding, in which he alleged 'change of circumstances' and sought the custody of his child.

After a hearing, the chancellor entered his decree ordering (1) the custody of Samantha remain with the mother; (2) the mother submit to psychiatric examination twice a year; and (3) the appellee's motion that her attorneys be allowed $1542 for legal services be overruled.

The father, the appellant, has appealed complaining of the judgment as it relates to the question of custody.

The appellee cross-appeals attacking that part of the judgment requiring her to submit to psychiatric examinations and overruling her motion that appellant be required to pay her attorneys' fees.

Without relating the facts in detail for all posterity, it is sufficient to say that the evidence discloses that the mother, the appellee, is far from being a model mother; that she drinks some; and that she has had some mental or nervous trouble. However she has had the custody of her child since birth, and the child has resided, and will continue to reside, in the home of her maternal grandmother and with a sister of appellee.

Appellant has a regular job having held his present job over ten years. He attends church regularly.

When we contemplate unrooting a child nearing school age as in the present case, we are faced with a difficult problem that may have serious and far-reaching consequences. In his judgment the trial court let stand his previous judgment giving the appellant visitation rights, which may upon proper showing be enlarged by the chancellor at any time.

In child custody cases the chancellor is vested with a broad discretion. At times the appellate court may feel it would not reach the same conclusion reached by the chancellor. However, when it is recognized that the judgment of the chancellor in such cases is based upon a finding of fact, this court should not disturb that finding unless found to be clearly erroneous. CR 52.01 and Fleming v. Rife, Ky., 328 S.W.2d 151. It is often extremely difficult for the chancellor, or for any court, to be certain what is in the best interest of the child. The chancellor, having the superior confrontation with the parties and with the witnesses, is in a far better position to resolve these difficult questions.

We cannot conclude from the evidence and all the circumstances that the judgment and findings of fact of the chancellor are 'clearly' or at all erroneous.

Appellee argues that the judgment directing her to submit to a psychiatric examination every six months should be reversed. Appellee in her brief quotes the testimony of Dr. Presley F. Martin, the relevant part of which we also quote herewith: '* * * would consider that an examination once each year would be sufficient * * *.' Appellee does not contend that she should not be required to submit to psychiatric examination at any time, only that the judgment is erroneous in requiring the examination each six months when her doctor recommended such examination only once annually. Well, we can only conclude that appellee is quibbling over peanuts. It well may be in the best interest of the child that a six-months check on the mental and nervous condition of the mother be required. Again we say we find the judgment proper and free of error.

Appellee's final point in her cross-appeal is that the action of the trial court overruling her motion for attorney fees is erroneous. She says that our rules relative to the allowance of attorney fees in postdivorce proceedings is not clear. This may be true, but it is understandable when we recognize that in questions of this nature many different factual situations have been presented.

To point up any confusion heretofore existing in our opinions in the matter of attorney fees in post-divorce proceedings, we quote from Wilkerson v. Wilkerson, Ky., 335 S.W.2d 552, at page 553:

'Our research has failed to disclose a Kentucky case similar to this one in which the assessment against a former husband for payment of a former wife's attorney's fees was in issue in an out-and-out custody proceeding. However, in two cases this Court denied an allowance from the father for the mother's attorney's fees for services rendered where the issue of custody was the sole issue on appeal in an action commenced below for both divorce and custody. Wills v. Wills, 1916, 168 Ky. 35, 181 S.W. 619; Thomas v. Thomas, 1870, 70 Ky. 665. In refusing to assess a fee against the husbands in these cases, the Court relied on the fact that the litigants were no longer husband and wife at the time of the appeal, and the practical consideration that custody of the child might be a matter of dispute for years to come (see KRS 403.070)--hence allowing the wife's attorneys to be paid by the husband could produce a method of harassment.

'In two recent appeals involving both custody and support of the child, this Court did award the mothers an allowance for attorneys' fees. Wyatt v. Webb, Ky., 1958, 317 S.W.2d 883; Ginter v. Ginter, 1947, 305 Ky. 513, 204 S.W.2d 596. In these cases the Court did not allude to KRS 453.120, which allows assessment of costs against the husband in actions 'for alimony and divorce unless the wife is in fault and has ample estate of her own,' or the Wills and Thomas cases, above, but, rather, based its decisions on the premise that the child had had a benefit conferred on it, in the latter case by having the support payments increased and in the former by recovering past due, unpaid support...