Krug v. Krug
| Decision Date | 30 March 1983 |
| Citation | 647 S.W.2d 790 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Beverly Sturgill KRUG, Movant, v. Nicholas J. KRUG, Respondent. |
Harlan H. Veal, Jr., Nicholasville, for movant.
William Miles Arvin, Nicholasville, for respondent.
The question is whether a party seeking to show misconduct of a spouse as a factor in the determination of child custody must first introduce evidence showing that the alleged misconduct has adversely affected the child before the proffered evidence may be admitted or considered by the trial court. This is an appeal from a judgment which awarded custody of two children to the father, relying to some extent on the misconduct of the mother. The Court of Appeals affirmed. We granted discretionary review in order to consider further the procedures required by K.R.S. 403.270(2) and by our decision in Moore v. Moore, Ky., 577 S.W.2d 613 (1979).
The movant mother and respondent father are the parents of two boys born during the first marriage of these parties to each other. They were divorced in September, 1978, custody of the children being awarded to the father. Shortly after the divorce the mother married Mike Iverson. This marriage lasted about six months and the mother and Iverson were divorced in May, 1979. At the time of the divorce movant was pregnant with Iverson's child. She remarried respondent in August, 1979, six days after the birth of Iverson's child. This second marriage of movant and respondent lasted for one year, it being dissolved in August, 1980.
For a substantial time during the second marriage of these parties Iverson was confined in prison for forgery. During this confinement beginning no later than one month after the remarriage of movant and respondent and continuing until Iverson's release from prison, Iverson and movant engaged in a voluminous and lurid correspondence expressing the passionate love which existed between them and revealing their plans to get back together when Iverson got out of prison. Iverson, an admitted alcoholic who had once attempted suicide, alluded in his letters to their previous use of drugs and his expectation that such use would continue.
In one of her letters to Iverson, movant stated:
I've had three affairs since I left him last December, one is you. Maybe I'm a slut or a whore or whatever else he called me. I don't feel ashamed of it. I don't think I should.
In addition to her various affairs, movant admitted she had written a number of cold checks.
Iverson was released from prison in March, 1980, and either by plan or coincidence movant and respondent were separated about that time. They were divorced in August, 1980, and movant commenced living with Iverson again in November, 1980.
The movant objected to all of the above-mentioned testimony upon the ground that respondent had not first laid a foundation by showing that the things testified about affected her relationship with the children. K.R.S. 403.270(2) provides:
The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child ....
In Moore v. Moore, supra, this court held that a trial court should not have admitted into evidence or considered a single episode of sexual misconduct on the part of the mother which occurred out of the presence of her five-year-old daughter when there was no evidence whatever that this episode adversely affected the child.
The only conclusion to be drawn from K.R.S. 403.270(2) when read with the note of the commissioners is that there must be proof that the sexual misconduct affects the relationship of the parent to the child; otherwise, the evidence of such misconduct is irrelevant and should not be admitted into evidence. Here there is no showing or even a suggestion that the child was aware of respondent's misconduct or that the relationship of the child and the respondent was in any way affected by this incident. Moore, supra at 614.
Movant, relying upon Moore, argues here that it was not shown that the children were aware of the mother's misconduct or that such conduct had adversely affected them. Movant contends that, absent testimony that alleged misconduct has adversely affected the children, the trial court cannot consider it in determining the placement of custody.
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