SMALLWOOD, JUDGE
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE W. MITCHELL NANCE, JUDGE
ACTION NO. 16-CI-00055 OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, CHIEF JUDGE; SMALLWOOD AND TAYLOR, JUDGES. SMALLWOOD, JUDGE: Benno Nils Felipe Francis appeals from Supplement Findings of Fact, Conclusions of Law and Supplement Decree of Dissolution of Marriage rendered by the Barren Circuit Court. Francis argues that these findings and conclusions do not support the determination that the best interests of the parties' children are served by designating Mira Gisselle Ordonez as the primary residential parent. For the reasons stated below, we VACATE the judgment on appeal, and REMAND the matter for further findings.
Francis and Ordonez were married on September 12, 2009, and had three children together. The parties immigrated from Nicaragua and lived together in Florida until 2012. The record reveals multiple incidents of physical aggression and alleged domestic violence between the parties which involved the police. The parties, as well as Appellee's mother, testified below that the domestic violence was perpetrated by both parties. Francis presented photographic evidence of injuries he allegedly sustained as a result of Ordonez's conduct.
In 2012, Francis moved to Kentucky and then relocated to Tennessee to find employment. During this time, the children travelled to Nicaragua to visit their maternal grandmother on what was ostensibly a vacation. According to Francis, Ordonez refused to return the children to the United States in a timely manner. Ordonez returned the children to the United States in 2013.
During this time, it appears that Francis was residing back in Kentucky and Ordonez was living in Florida. Francis would allege that Ordonez sent the children to Nicaragua because she could not provide for their basic needs in the United States. He further asserted that the children returned from Nicaragua in poor health and infected with parasites. The children later came to live permanently with Francis while he maintained an apartment in Tennessee but was spending most of his time in Kentucky for employment reasons.
The marriage was dissolved by way of an interlocutory decree rendered in Barren Circuit Court on September 27, 2016. On June 20, 2017, the court rendered Supplement Findings of Fact, Conclusions of Law and Supplement Decree of Dissolution of Marriage, which resolved issues of custody, visitation and child support. Of relevance, the court found that the parties were employed and had adequate housing; that both parties had perpetrated domestic violence against the other; and, that the Kentucky Revised Statute (KRS) 403.270(2) factors and the children's best interests supported an award of joint custody with Ordonez serving as the primary residential parent. This appeal followed.
Francis now argues that the Barren Circuit Court's findings of fact and conclusions of law do not support the determination that the children's interests are best served by designating Ordonez as the primary residential parent. He also maintains that the findings of fact and conclusions of law are not supported by the totality of the circumstances. Specifically, Francis asserts that the record does not reasonably support the elements of KRS 403.270(2), and that the Barren Circuit Court erred in failing to so rule. Francis asserts, for example, that the record does not support any other conclusion but that only he has a strong interaction and interrelationship with the children (KRS 403.270(2)(c)), while the children's relationship with Ordonez has suffered from her voluntary, multiple and lengthy absences from their lives. He goes on to argue that an analysis of the children's adjustment to their community of Glasgow, Kentucky, (KRS 403.270(2)(d)), and their mental and physical health (KRS 403.270(2)(e)) also required the court to conclude that he was the proper designee as the children's primary residential parent. The focus of his argument is that because he has stable employment, rents a portion of a large, single family residence, and has provided an environment where the children are well-adjusted, he is far better suited to serve as the primary residential parent. In sum, Francis seeks an opinion reversing the order on appeal and directing the Barren Circuit Court to grant him the status of primary residential parent.
KRS 403.270 was recently amended effective July 14, 2018. KRS 403.270(2) as quoted was in effect during the hearing and entry of the appealed judgment. --------
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720 . . . .
The standard of review in child custody issues is whether the circuit court's decision was clearly erroneous and constituted an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974). We will only reverse a circuit court's custody decision if its findings of fact are clearly erroneous or its decision reflects a clear abuse of the wide discretion granted to circuit courts in custody matters. Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). A factual finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). Substantial evidence is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion[.]" Id. (footnote and internal quotation marks omitted). Further, mere doubt as to the correctness of a finding will not justify its reversal. Id.
The questions for our consideration, then, are whether the Barren Circuit Court's findings are clearly erroneous, and whether the decision reflects a clear abuse of the wide discretion granted to circuit courts in custody matters. Reichle, 719 S.W.2d at 444. We conclude that the findings are insufficient to address the elements of KRS 403.270(2) and do not resolve the broader child custody determination. The limited findings provided by the Barren Circuit Court are at best conclusory, and do not address facts relevant to KRS 403.270(2). The trial court properly directs the parties to KRS 403.270(2), but cites no facts regarding either party's physical or mental health and gives little or no factual analysis as to the other factors. If anything, the limited findings tend to support Francis' argument that a custody order in his favor is in accordance with the best interests of the children.
The court must make factual findings and do more than address the matter in a merely perfunctory manner. Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). The failure to make findings violates CR 52.01 and may be raised on appeal even without requesting additional findings below. Id. Having determined that the court's findings do not properly support the conclusion reached, we VACATE the Supplement Findings of Fact, Conclusions of Law and Supplement Decree of Dissolution of Marriage rendered by the Barren Circuit Court, and REMAND the matter for the production of additional findings which may necessitate a hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Sarah Capps Hayes
Kentucky Legal Aid
Bowling Green, Kentucky NO BRIEF FOR APPELLEE
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