Moore v. Moore

• Decision Date: 09 October 2020
• Docket Number: NO. 2019-CA-1579-MR,2019-CA-1579-MR
• Parties: HEATHER LERAE MOORE APPELLANT v. EDDIE DEAN MOORE APPELLEE
• Court: Kentucky Court of Appeals

HEATHER LERAE MOORE APPELLANT v. EDDIE DEAN MOORE APPELLEE

NO. 2019-CA-1579-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 9, 2020

NOT TO BE PUBLISHED

APPEAL FROM WHITLEY CIRCUIT COURT

HONORABLE SAMUEL TODD SPALDING, SPECIAL JUDGE

ACTION NO. 14-CI-00600

OPINION

AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

DIXON, JUDGE: Heather Lerae Moore appeals from the order allowing Eddie Dean Moore unsupervised overnight visitation with the parties' children, and the order denying her motion to alter, amend, or vacate said order, entered by the Whitley Circuit Court on September 3, 2019, and October 10, 2019, respectively. Following review of the record, briefs, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Eddie had a son and a daughter prior to his marriage to Heather, and two daughters were born during the parties' marriage. Beginning when Eddie's eldest daughter was about eleven or twelve years old, there were two instances of Eddie touching the child's breast, one instance of Eddie asking her to show him her breasts, and one instance of him making her completely disrobe in front of him. These incidents occurred while the two were alone. In October 2014, a few years later, the daughter told Heather about these incidents. Heather confronted Eddie, who admitted the allegations were true but claimed he "was not like that anymore." Thereafter, Eddie contacted a sexual predator hotline—Stop It Now—to seek advice and confessed his actions to local law enforcement. On October 28, 2014, Heather filed for divorce. On January 29, 2015, the court awarded Eddie supervised visitation with the parties' children on alternating Sundays, and on March 20, 2015, Heather was awarded temporary custody of the parties' children.

Based on his confession, Eddie was charged and later tried by a jury. At trial, Eddie minimized and made excuses for his actions; nonetheless, he was acquitted on April 13, 2017. After his acquittal, Eddie began pursuing increased visitation with the parties' children. Following a hearing on the matter on July 10, 2017, the trial court entered its findings of fact and order granting Eddie supervised visitation with the parties' daughters each Saturday. Although the court found thatEddie had sexually abused his eldest daughter, it also found that there were no allegations of abuse concerning the parties' children. The trial court noted that even Heather admitted that Eddie was a good father before the allegations arose. Eddie testified that he had an excellent relationship with his children prior to the allegations. Eddie's mother characterized him as a loving father and good provider, heavily involved in his children's lives. The court ordered Eddie to complete anger management classes, undergo a mental health assessment, and follow the recommendations of that counselor. It further provided that after six months, Eddie could petition the court for overnight and unsupervised visitation if he completed anger management and mental health counseling.

On January 23, 2018, having completed anger management and mental health counseling, Eddie moved the court for joint custody and unsupervised, overnight parenting time of the parties' children. An initial hearing on this motion was held on February 21, 2018, and the trial court ordered the parties to depose Terry W. North, LCSW,¹ and Edd Easton-Hogg, Psy.D—both of whom had interviewed Eddie. North saw Eddie on two occasions but did not receive a transcript of his confession to law enforcement until after those appointments. Dr. Easton-Hogg also met with Eddie on two occasions and performed a clinical interview, mental status exam, two personality tests, and aformal cognitive assessment. Dr. Easton-Hogg was provided a copy of Eddie's interview with law enforcement prior to their first meeting. Dr. Easton-Hogg's report concluded that Eddie's "repeated actions are indicators of lack of empathy for his daughter." Another hearing was held on May 30, 2018, following which the court entered its order granting Heather sole custody of the parties' children and denying Eddie unsupervised and overnight visitation. As part of its findings, the trial court stated:

[Eddie], in counseling sessions and during his testimony, continues to minimize his actions of touching his daughter's breast and asking her to disrobe in his presence. The failure of [Eddie] to appreciate the wrongful nature of this conduct places these parties' minor children at risk. Unless and until [Eddie] accepts responsibility for his actions and is genuinely remorseful, this Court will not modify the current visitation arrangement.

The court held "[p]rior to the Court considering either unsupervised or overnight visitation, [Eddie] shall complete psychotherapy to specifically target his inappropriate behaviors toward his oldest daughter, lack of impulse control and antisocial behavior." The trial court did, however, increase Eddie's visitation to two out of three Saturdays and Sundays.²

On April 5, 2019, having completed psychotherapy targeting his inappropriate behaviors toward his oldest daughter, lack of impulse control, andantisocial behavior, Eddie again moved the court for joint custody and unsupervised, overnight parenting time. A hearing was held on August 22, 2019, at which Samantha Baker, a sex offender social service clinician, testified that she had conducted more than a dozen counseling sessions with Eddie. Baker opined that Eddie is not at high risk to reoffend and that his primary issues involve irresponsibility and self-esteem. Eddie testified at the hearing that he has an excellent relationship with the parties' children, and they enjoy exercising visitation with him. Eddie admitted what he did to his eldest daughter was a horrible act for which he was very sorry. He swore he would never engage in such activity with the parties' daughters. The trial court interviewed the parties' children in its chambers and in the presence of counsel. One child stated that she enjoys going to Eddie's house and loves him very much, but she does not have a close relationship with him and would prefer not to visit overnight. The parties' other daughter testified that she would prefer not to visit Eddie overnight because she would miss Heather.

On September 3, 2019, the court denied Eddie's request for joint custody but allowed unsupervised visitation with the parties' children on alternating weekends. In its order, the court specifically found that an award of joint custody would not serve the best interest of the parties' children and, further, that the parties' children would not be at risk were Eddie to exercise overnightunsupervised visitation. On September 6, 2019, Heather moved to alter, amend, or vacate the court's order, alleging that neither testimony at the hearing nor the court's findings support an award of unsupervised overnight visitation. The children's guardian ad litem filed a response joining the motion. The matter was heard on October 2, 2019, and on October 10, 2019, the court denied the motion. This appeal followed.

NONCOMPLIANCE WITH RULES OF APPELLATE PROCEDURE

Another panel of our Court has recently addressed the growing problem of noncompliance with the rules of appellate practice.

This Court is weary of the need to render opinions such as this one, necessitated as they are by the failure of appellate advocates to follow rules of appellate advocacy. In just the last two years, at least one hundred and one (101) Kentucky appellate opinions were rendered in which an attorney's carelessness made appellate rule violations an issue in his or her client's case. The prodigious number of attorneys appearing in Kentucky's appellate courts lacking the skill, will, or interest in following procedural rules is growing. In 2005, only two (2) Kentucky opinions addressed appellate rules violations. In 2010, the number jumped to eleven (11). In 2015, the number rose slightly to fourteen (14). The average for the last two years is more than three times that. If this is not a crisis yet, it soon will be if trends do not reverse.

We will not reiterate all that has been said too many times before on this subject. If a lawyer is curious about the importance of these procedural rules or the practical reasons for following them, we recommend reading these opinions in chronological order: Commonwealth v. Roth,567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990).

. . . Some rule violations are alone sufficient to justify applying a manifest injustice standard of review or, worse, striking the brief. CR³ 76.12(8); see also Roth, 567 S.W.3d at 593; Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 154 (Ky. App. 2012). Other violations are less profound; however, "there is an important purpose behind each of these rules." Hallis, 328 S.W.3d at 696 (referring by footnote to the purpose underlying some of the more mundane rules).

Clark v. Workman, 604 S.W.3d 616, 616-18 (Ky. App. 2020) (footnotes omitted).

Below are the subsections of CR 76.12 which Heather's brief violates, listed as they appear in the rule:

• Subsection (4)(c)(v) (requiring "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner");

• Subsection (4)(c)(vii) (requiring that "[t]he appellant shall place the judgment, opinion, or order under review immediately after the appendix list [i.e., or index] so that it is most readily available to the court"); and• Subsection (4)(c)(vii) (requiring that documents in the appendix be marked by "appropriate extruding tabs").

Notwithstanding these errors, this Court will not strike the brief and dismiss the appeal. The two issues presented were properly preserved for review.

STANDARD OF REVIEW

The standard of an appellate court's review of a trial court's findings of fact is...