Erin Leanell Cash v. McFarland
| Decision Date | 21 September 2018 |
| Docket Number | NO. 2018-CA-000228-ME,2018-CA-000228-ME |
| Parties | ERIN LEANELL CASH APPELLANT v. JOSHUA DAVID MCFARLAND AND SANDRA REEVES APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM WHITLEY CIRCUIT COURT
Erin and Joshua are the parents of K.A.M. ("Child"), born in 2007. Following Child's birth, Erin filed a petition for custody in Whitley County. In 2008, Erin and Joshua entered an agreed order of joint custody, which designated Erin as primary residential parent and granted timesharing to Joshua. At some point Erin moved out of state with Child without giving Joshua notice or seeking permission from the court. Between 2010 and 2016, Erin and Child moved several different places throughout the country, finally settling in Georgia. Throughout this time, Joshua continued to live in Kentucky. Despite the unannounced relocation, the parties worked together amicably since the agreed order in 2008.
In 2016 Joshua moved to transfer venue of the case to Fayette County where he resided. Once transferred his intention was to have timesharing modified. In October 2016, the circuit court declined to transfer venue and ordered the parties to mediate a timesharing agreement. Erin and Joshua reached an agreement modifying Joshua's timesharing schedule, which was recited into the record and later reduced to writing. Thereafter, the ability of the parties to work together amicably deteriorated significantly.
The first instance of this deterioration revolved around Child's juvenile diabetes diagnosis. Erin became concerned that Joshua would not be able to properly take care of Child. To calm Erin's concerns, Joshua agreed to attendmedical certification training to learn how to properly manage Child's diabetes. Joshua promptly completed the training, so he could exercise his Christmas 2016 visitation. He also ensured that his girlfriend and his mother got the proper training so they could be back-up caregivers. Erin complained that Joshua's training was inadequate and demanded that he complete another training course. To appease Erin, Joshua promptly completed three additional training programs, so he could exercise his Christmas timesharing.
Following the completion of these trainings and prior to Christmas timesharing, Erin refused to permit her attorney to execute the October 2016 agreed order.1 Although she orally agreed, Erin refused to allow her attorney to sign the order, which led him to move to withdraw from the case. The order was ultimately executed and entered. Despite the various attempts by Erin to interfere with the Christmas 2016 timesharing, Joshua was able to enjoy that time with Child.
In March 2017, Erin filed an "Ex Parte Motion to Restrict Respondent's Visitation," which would restrict Joshua's spring break timesharing. Included in Erin's motion was an affidavit where she alleged that: (1) Joshuacould not take care of Child's medical needs because of the Dexcom2 meter readings she received of Child's blood sugar during the Christmas 2016 timesharing; (2) Joshua did not recalibrate the Dexcom meter; (3) she had to assist Child over the phone to help her do so; (4) Child had experienced several low drops in her blood sugar; and (5) Child was "terrified" to stay a week with Joshua because of what occurred during the Christmas 2016 timesharing. Erin never communicated any of these concerns to Joshua prior to filing this motion. The circuit court denied the motion, and Joshua was able to exercise his timesharing with Child during her spring break in 2017.
Erin continued her attempts to hinder Joshua's timesharing by filing a motion to compel Joshua to undergo a drug screen. Erin alleged that Joshua had posted memes and articles on social media about drugs, which caused her to believe that he was using illegal drugs. The circuit court ordered both Erin and Joshua to get drug screened, and both screens came back negative.
Shortly thereafter, Joshua moved to compel Erin to produce Child for timesharing. On June 8, 2017, a hearing was held, and the circuit court granted Joshua's motion. That same day, the parties made another timesharing agreement with specific dates, which was recited into the court's record and later reduced to writing.
Erin's next attempt to interfere with Joshua's timesharing occurred on June 11, 2017. Erin took Child to Joshua's residence for the first week of summer timesharing. Upon arrival, Child did not have an overnight bag or her stuffed animal that she slept with at night. Child refused to get out of the vehicle and go with Joshua. Because Child refused to go with Joshua, he suggested that everyone go to dinner together so that he could spend some time with Child. Child ended up leaving dinner with Erin, and they planned to stay the week at Erin's mother's home in Whitley County. Eventually, Child agreed to stay Saturday night with Joshua at his residence and spend Father's Day with him, which was the next day. After midnight that Saturday night, Erin arrived at Joshua's residence, unannounced, where she continuously knocked on the door, demanded to see Child, and claimed Child was having a medical emergency. Joshua called the Fayette County police, who upon their arrival, performed a wellness check on Child. The officer found that Child was safe and ordered Erin off the premises. Shortly thereafter, Erin's brother, a Kentucky State Vehicle Enforcement Officer, arrived at Joshua's home to see Child, which Joshua allowed before asking him to leave.
Joshua was again unable to exercise his timesharing on June 23, 2017. On this day, Joshua drove to Georgia to pick up Child and exercise his second week of summer timesharing. Joshua called the local police to accompany him toErin's home. Upon arriving at Erin's residence, Erin refused to turn Child over to Joshua and asked him to produce a signed order stating she had to. Joshua had the June 8th agreement, but it was not signed and entered until June 28, 2017, resulting in him leaving Georgia without Child.
On July 1, 2017, Joshua filed a motion for contempt, make-up timesharing, reimbursement of costs for travel to Georgia, and attorney's fees. A hearing was scheduled for July 6, 2017. However, the circuit court appointed Child a Friend of the Court and advised the parties to try to come up with an agreement on their own. The circuit court explained that if a hearing was held and a ruling on the motion had to be made, Erin would likely be held in contempt, incarcerated, and Joshua would have custody during that time.
The parties met with their counsel, the Friend of the Court, and at times Child to negotiate an agreement. Once the parties came to an agreement, the circuit court decided the specific dates of Joshua's timesharing, at which time the agreement was recited into the record. It further ordered that Child was to go with Joshua immediately following court to begin timesharing. Erin asked the court what she was supposed to do if Child refused to go with Joshua. The circuit court explained that Joshua had the right to physically take Child if that is what he decided to do.
Following the explanation, Erin led Child down the stairs of the courthouse, accompanied by her mother, husband and brother.3 Joshua and the Friend of the Court followed Erin and Child down the stairs, where Erin's family berated and yelled at them. Once outside the courthouse, Erin and Child continued to cling together, while Joshua continued to be berated. The growing hostility outside the courthouse led counsel for both parties to contact the court to see how they should proceed. The court instructed security to order Erin's family off the premises and to effectuate Joshua's timesharing. Joshua tried to physically take possession of Child as he was told he could do by the Court. Erin merely removed her hands from Child but did not do anything to assist Joshua in physically taking Child. When Joshua attempted to physically take possession of Child, Erin's brother attempted to confront him and had to be restrained by security. Ultimately, Joshua decided to allow Child to stay with Erin to avoid any further altercations or distress to Child.
Following that incident, timesharing was to occur the last week of July. Erin and Joshua were to meet in Asheville, North Carolina, a half-way point, to exchange Child. As an attempt to hinder timesharing, Erin filed another "Ex Parte Motion to Restrict Respondent's Visitation" on July 21, 2017, two days before Joshua's timesharing. In this motion, Erin alleged that visitation should berestricted due to Child's being extremely reluctant to go. She also alleged that Joshua's girlfriend had a criminal record that showed an active bench warrant for arrest stemming from a hit and run. Consequently, Erin refused to allow Joshua to exercise his timesharing that week. Thereafter, Joshua filed a "Re-Notice of Motion for Contempt for Failure to Abide by Timesharing Guidelines" and a "Motion for Sanctions and Attorney's Fees." These motions were set for hearing in September 2017.
At the hearing, Joshua introduced evidence to support his motions, which included his testimony as to the various incidents that have occurred over time, the Friend of the Court's testimony as to the incident that occurred at the courthouse on July 6th, and the surveillance video of the July 6th incident. In support of her motion to restrict, Erin testified as to her versions of events. At the end of the lengthy evidentiary hearing, the circuit court explained that the...
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