Stafford v. Stafford

• Decision Date: 19 June 1981
• Docket Number: No. 81-CA-35-MR,81-CA-35-MR
• Citation: 618 S.W.2d 578
• Parties: Robert M. STAFFORD, Appellant, v. Etta STAFFORD and Nick L. Pearl, Appellees.
• Court: Kentucky Court of Appeals

Page 578

618 S.W.2d 578

Robert M. STAFFORD, Appellant, v. Etta STAFFORD and Nick L. Pearl, Appellees.

No. 81-CA-35-MR

Court of Appeals of Kentucky.

June 19, 1981.

William P. Mulloy, Louisville, for appellant.

Nick L. Pearl, Radcliff, for appellees.

Before LESTER, McDONALD and REYNOLDS, JJ.

McDONALD, Judge:

In this case the appellant questions the trial court's findings of fact which supported the court's judgment awarding custody and maintenance to the appellee wife, and attorney's fee to appellee Nick L. Pearl.

Pursuant to CR 43.04, the case was tried by deposition. ¹ The trial court made the following single finding of fact concerning the custody issue:

6. Some problems have existed between the daughters and the mother, but by reason of the evidence in the case and the fact that the father is in full time military service and the two daughters need some counseling and guidance by a mother, the best interests of the two daughters would be served by granting their custody to their mother.

The evidence contained in the depositions is essentially as follows:

Testimony of Betty Ann Stafford and Teresa Rena Stafford. These are the sixteen- and twelve-year-old daughters of the parties. They reside on the post at Ft. Knox with their mother exclusively since the entry of a temporary custody order. Both wish to be placed in the custody of their father. Each described deplorable conditions with their mother, but a loving relationship with their father. Betty Ann related that she hated her mother and had felt that way since she was 14 years old. The home scene with the mother portrayed the mother's violent behavior, seclusion from the family, excessive taking of pills, constant fighting and turmoil, and inordinate sanitary rules such as keeping her own food separated from everyone else's in the refrigerator because of germs; the complaints go on and on. Neither girl felt that the mother loved them, but only wanted them in order to keep their father.

Testimony of Ann Wilson, Patricia Lewis, and Ann Schmidt. They are, respectively, a social worker for Ireland Community Services, a guidance counselor for Ft. Knox High School, and a child psychologist at Ireland Army Hospital. They were called in to investigate the home conditions of this family, mostly from independent sources. They were in concert with one another in their findings that the home circumstances were in turmoil and the children were suffering under the sole care of their mother. They uniformly recommended that custody be placed with the appellant because he was more stable and better equipped for the care of the children.

Testimony of Appellant Robert M. Stafford. Mr. Stafford is thirty-nine years of age with twenty years in the U. S. Army, a sergeant major, E-9 rank. His take-home pay is $1,313 per month. He claims to be the disciplinarian in the family. According to him, the breakdown in the marriage was a gradual thing. He asserted that the appellee was unable to manage money and was an impulsive clothes buyer for herself. She continually nagged about his drinking, even when he did not drink. He claimed he never drank to an excess. He related several episodes in which the appellee would slap him and pull his hair in front of the children, but stated that he retaliated only one time by striking her. He described a daily routine of the appellee using various drugs.

Expressing a strong desire to have custody, he was confident he could take care of the children.

Testimony of Appellee Etta Rose Stafford. She is thirty-eight years of age, having married the appellant on March 31, 1961, in Dillon, South Carolina. The marriage produced two children. Etta Rose possesses only a ninth grade education and minimal experience in factory and waitress-type work. Since the birth of the first child she has not worked outside the home. She testified about her love for the children, and that she has done the things for them as mothers do for children. She complained bitterly of the appellant's drinking and staying away from the home, and constantly "putting her down" before the children. She complained about the appellant's failure to let her have any money to operate the house with, and rebutted the allegations about her excessive sanitary habits on the basis that she was neat. She said the appellant drilled the children into thinking she did not love them and encouraged them to ridicule her. She testified about physical abuse from the appellant on a frequent basis.

APPELLANT MAINTAINS THAT THE TRIAL COURT'S AWARD OF CUSTODY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND NOT IN THE "BEST INTERESTS" OF THE CHILDREN. WE AGREE.

In a trial without a jury the findings of a trial court, under CR 52.01, if supported by sufficient evidence, cannot be set aside unless the findings are found to be "clearly erroneous." The reason for this rule is twofold: (1) The trial court had the opportunity to judge the credibility of the witnesses, and (2) without the "clearly erroneous" rule, actions would be tried anew upon appeal. The cases are plentiful in support of this rule. See Barnes v. Barnes, Ky., 458 S.W.2d 772 (1970), Stephanski v. Stephanski, Ky., 473 S.W.2d 806 (1971), and Taylor v. Taylor, Ky., 591 S.W.2d 369 (1979).

However, as in this case, the "clearly erroneous" rule does not apply when the trial court has the proof submitted by depositions under CR 43.04 because the trial court cannot judge the credibility of witnesses it did not observe. In Burchett v. Jones, Ky., 291 S.W.2d 32 (1956), our Supreme Court articulated:

The case was tried entirely on depositions. While CR 52.01 requires that due regard be given the opportunity of the trial court to judge the credibility of the witnesses, the form of the evidence is significant. (Case cited.) ... the trial court did not have an opportunity to observe the demeanor of the witnesses who gave oral testimony. Under the circumstances, we believe we are in as advantageous a position to pass upon credibility as was the trial court and may properly evaluate the evidence.

The reasoning in Burchett was followed by this court in Bush v. Putty, Ky.App., 566 S.W.2d 819 (1978). Our task now is to evaluate the evidence in the record without the limitations of the "clearly erroneous" rule.

First, let us comment that in a trial without a jury conducted pursuant to CR 52.01, the trial court is required to find those facts which are raised in the pleadings or those facts which are mandated to be considered by statute, whichever the case may be.

In custody cases the legislature, through K.R.S. 403.270(1), states criteria the trial court shall consider in making its determination of an award of custody. The ultimate or conclusory fact to be found is a determination of the "best interests of the child." However, before that factual conclusion can be reached the court is to consider all relevant factors including those specifically enumerated in the statute. We, as an appellate court, are not unmindful that the most burdensome and frustrating work of the trial court is its task in decision making associated with nonjury trials under CR 52.01 and that the bulk of this burden is in family law cases. However, our Supreme Court, in its rule making and supervisory capacity, has placed the utmost trust and responsibility in the trial courts by adopting CR 52.01. The rule states that the facts shall be found "specifically." The rule is mandatory on the trial courts. We cite Fleming v. Rife, Ky., 328 S.W.2d 151 (1959) and Standard Farm...