Elawyers Elawyers
Washington| Change

WATKINS v. FAULKNER, 2013-CA-001109-ME. (2014)

Court: Court of Appeals of Kentucky Number: inkyco20140328332 Visitors: 9
Filed: Mar. 28, 2014
Latest Update: Mar. 28, 2014
Summary: NOT TO BE PUBLISHED OPINION MOORE, Judge. Dessie Watkins appeals the order of the Wayne Family Court granting in part and denying in part her motion to alter, amend or vacate its judgment, and the Wayne Family Court's Findings of Fact, Conclusions of Law and Judgment (1) awarding her and Joshua Faulkner, the father of their two minor children, joint custody; (2) naming Joshua primary residential custodian of their children; and (3) granting her timesharing with their children. After careful r
More

NOT TO BE PUBLISHED

OPINION

MOORE, Judge.

Dessie Watkins appeals the order of the Wayne Family Court granting in part and denying in part her motion to alter, amend or vacate its judgment, and the Wayne Family Court's Findings of Fact, Conclusions of Law and Judgment (1) awarding her and Joshua Faulkner, the father of their two minor children, joint custody; (2) naming Joshua primary residential custodian of their children; and (3) granting her timesharing with their children. After careful review of the record, we affirm.

Dessie and Joshua were never married, but have two minor children together. Joshua filed a petition for joint custody of the children claiming that Dessie would take the children out of Wayne County, Kentucky, and prevent Joshua from seeing them. Dessie filed a response and counter-petition for a joint custody award. Both stated in their petitions that they wished to be designated as the primary residential custodian of the children.

Dessie and the children initially lived with her foster family in Cincinnati, Ohio, after the petitions were filed. Her foster mother, Donna Fletcher, and Donna's daughter, Bridget Parrish, provided substantial amounts of child care, food, and clothing for the children. Dessie and Joshua agreed to joint custody and a parenting schedule after participating in mediation. However, the day after the agreement was reached, Dessie's romantic relationship with her foster mother's son-in-law (Bridget Parrish's husband), Richard Parrish, was discovered. Thereafter, Dessie lost the support of her foster family. Joshua immediately filed a motion for custody and to set aside the agreed parenting schedule. Joshua initially agreed to Dessie's having the children more, but it was conditioned upon Dessie's maintaining a solid relationship with her foster family. The Wayne Family Court then held a hearing on the matter and heard testimony from several relevant witnesses.

Joshua resides in Monticello, Wayne County, Kentucky. He has been employed at Equity Group in Albany, Kentucky, for three and one-half years. He works second shift, and his job allows him to provide health insurance for the children. He has now married; his wife and her child live with him. His wife also works second shift at Equity Group. While Joshua is at work, the children stay at Wendy's Wonderland daycare. Joshua's father lives nearby and watches the children when needed.

Dessie is twenty-two years old and at the time of hearing was not employed. She is a Certified Nursing Assistant, but has never been employed as one. She has not been employed full time for longer than a month at a time since she worked as a lifeguard when she was sixteen. At the time of the hearing Dessie did not have a driver's license. Dessie was in foster care in Donna Fletcher's care from age two until she was sixteen. She was placed in foster care due to her biological parents' drug use. When Dessie was sixteen she began to have regular contact with her biological mother and still maintains that contact. Donna Fletcher, Dessie's foster mother, testified that she and her daughter, Bridget Parrish, or the children's daycare provided the majority of the care for Dessie's children when they were in her custody while, according to Donna Fletcher, Dessie ran around the neighborhood with boyfriends or was on the computer on Facebook. Dessie lost the support of her foster family when her relationship with Richard Parrish (Donna's son-in-law and Bridget's husband) was discovered. Dessie then began residing with Richard Parrish and relies on him for financial support.

Joshua has concerns that Dessie does not have employment, transportation, stable housing or financial means to support the children. He also testified that often when the children are returned to him, they have diaper rashes from not getting changed frequently enough.

Dessie believes Joshua is a good father. However, she does not like that the children spend so much time in daycare when in his care because of his work schedule.

The family court designated Joshua as the primary residential parent because he demonstrated a more consistent ability to properly care for and support the children. Dessie was granted timesharing every other weekend and weekly telephone visits, but the court found that Dessie had not demonstrated the maturity, stability or financial independence the children need in a primary residential parent. The parties were instructed to utilize the Wayne County School District calendar for holiday and summer timesharing.

Dessie filed a motion to alter, amend or vacate the family court's judgment. Joshua filed a motion to modify the exchange location. In Dessie's memorandum in support of her motion, she requested that the court amend certain findings of fact. At issue was the family court's inclusion of the following finding in its judgment: "Dessie is ordered through Richard's current divorce case, to have no contact with his son and Dessie testified this is because she is a sexual predator." Dessie requested that the court clarify that she is not a sexual predator, but that she testified to the contents of an order from the Parrish's divorce case in Ohio that labels her as a sexual predator. The family court granted Dessie's motion in regard to this finding and amended its finding to state: "Dessie is ordered through Richard's current divorce case to have no contact with his daughter,1 and Dessie testified this is because she has been found by the Ohio court to be a sexual predator." The family court overruled the motion to amend the portion of the judgment that names Joshua as the primary residential parent and two other findings regarding Donna Fletcher's testimony and Dessie's ability to support the children. The family court did alter some of the timesharing as well as the pick-up and delivery locations for exchanging the children.

Dessie now appeals the family court's ruling on her objection regarding questions Joshua's attorney asked about Richard's Ohio divorce case which included a court order that Dessie could not be around Richard's daughter because Dessie was a sexual predator. Dessie argues the family court in this case erred on this ruling because it delved into confidential juvenile proceedings.

We review a trial court's evidentiary rulings under the abuse of discretion standard. Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky.2004). "Abuse of discretion implies that the family court's decision is unreasonable or unfair." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008). Additionally, no evidentiary error shall merit reversal of a judgment unless it affects the substantial rights of the parties. Kentucky Rules of Civil Procedure (CR) 61.01.

Dessie's sole argument on appeal is that the Wayne Family Court was prejudiced by admission of evidence of her prior juvenile conviction, and therefore, all of the court's findings are questionable. She contends that it is impossible to determine if the court's decision would have been different but for the mention of her juvenile arrest and the related contents of the Ohio court order in her boyfriend's divorce case. We disagree.

The family court heard testimony of several relevant witnesses including Dessie, Donna Fletcher, Bridget Parrish, Joshua, and Frank Bray (Joshua's father) regarding the routines, interaction, and relationships of the parties involved with the children. Dessie testified that she is ordered through Richard Parrish's divorce case in Ohio to have no contact with his daughter because she has been found by the Ohio court to be a sexual predator. This was included as a finding in the circuit court's judgment.2

Regarding this, Joshua's attorney asked Dessie the basis for the Ohio court order. Dessie's attorney objected stating that it has to do with Dessie's juvenile proceedings which are confidential. The judge sustained the objection as to the contents of juvenile proceedings, but allowed Dessie's statement as to the contents of the Ohio order to remain on the record.

We do not disagree with Dessie that juvenile records are confidential; however, this is not an absolute. The contents of a juvenile record may be disclosed by the court for good cause. Kentucky Revised Statutes (KRS) 610.340. Of course, this determination is always going to be fact specific. Herein, the family court was very cautious as to only allow in the fact, as testified to by Dessie, of the existence of an Ohio order that Dessie was not permitted to be around the Parrish child because she was a sexual predator. Given the tight control the family court maintained around this line of questioning and the fact that custody of two small children were at issue, we do not deem the court's ruling as an abuse of discretion.

Nonetheless, even assuming that the circuit erred in admitting Dessie's testimony regarding the order from the Ohio divorce case, this was at best harmless error. There is substantial evidence in the record supporting the trial court's findings and judgment even if Dessie's statement was excluded from the evidence. The court made ample findings that support the determination of Joshua as the primary residential parent and the timesharing arrangement. At the time of the hearing, Dessie had two job prospects, but she was unemployed and had not held a stable job since she was sixteen. She did not have a driver's license, a place of her own in which to live, or financial means to support herself or her children. She also no longer had the support of her foster family because of her choices. We have reviewed the hearing in this matter and ample evidence supports the family court's decision that "Dessie obviously loves her children, but has not demonstrated the maturity, stability or financial independence the children need in a primary residential parent[.]"

On the other hand, the family court found that "Joshua has demonstrated the ongoing and consistent ability to properly care for, nurture and provide for an appropriate home and financial support for the children." Substantial evidence in the record supports this decision including the fact that Joshua provides a secure home environment for his family and is financially stable. He has the help of his father nearby and also utilizes daycare for the children's care while he is at work. He has been employed at the same place for several years and is able to provide the children with health insurance through his job.

Accordingly, even if we were to deem the mention of Dessie's juvenile court involvement to be error, it was harmless and non-prejudicial as we are confident that the court discerned the proper weight of the evidence presented.

For the reasons stated, the judgment of the Wayne Family Court is affirmed.

ALL CONCUR.

FootNotes


1. The Parrish's child referred to in this case is their daughter, not son. The family court amended its original finding to correct this error.
2. This is the amended version of the finding.
Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer