Daniel Timothy Williams v. Alisha Dawn Williams

RENDERED: MARCH 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1866-MR

DANIEL TIMOTHY WILLIAMS APPELLANT

APPEAL FROM MORGAN FAMILY COURT
v. HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 19-CI-00078

ALISHA DAWN WILLIAMS APPELLEE

OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING

** ** ** ** **

BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.

LAMBERT, JUDGE: In this dissolution action, Daniel Timothy Williams (the

father) has appealed from the decisions of the Morgan Family Court related to

custody, timesharing, and the allocation of two firearms. We affirm in part, vacate

in part, and remand for the entry of written findings of fact supporting the custody

decision.
 Alisha Dawn Williams (the mother) and the father were married on

July 5, 2016. One child was born of the marriage in February 2017, and the

mother had nine-year-old twins from a previous relationship. The parents

separated on May 17, 2019, and the mother filed a petition to dissolve the marriage

in the Morgan Family Court on June 4, 2019. In her petition, the mother alleged

that the marriage was irretrievably broken and sought a restoration of nonmarital

property and the division of the marital estate, custody of the child, child support,

and attorney’s fees and costs. By separate motion, the mother sought temporary

custody of the child as well as child support from the father. The mother stated

that one week after their separation, the father had obtained possession of and

prevented her from seeing the child. On June 12, 2019, the father filed a motion

for temporary sole custody with visitation for the mother. In an attached affidavit,

the father claimed to have been the primary caretaker of the child. He alleged that

the mother did not properly supervise the child. She would also allow her twin son

and daughter to be in caretaking roles while she had the child. In addition, the

father alleged that the child had been injured while in the mother’s care.

The parties appeared before the court on July 8, 2019, and informed

they court they had reached a temporary agreement. The court entered an order

memorializing the agreement on July 15, 2019. In the order, the court stated that

the parents would have joint custody of the child, set up a timesharing schedule,

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and set aside the existing domestic violence and emergency protective orders,

noting that separate orders providing for protection would be entered. And the

mother was not permitted to allow her nine-year-old twins to be the child’s sole

babysitters. A final hearing was scheduled for August 14, 2019.

Rather than holding a final hearing August 14, 2019, the court instead

held a hearing on temporary custody. The mother testified about her work

teaching English online and that she had nine-year-old twins from a previous

relationship. The twins’ father had visitation with them every other weekend.

From the time the child was born, she had been his primary caretaker, both

emotionally and physically. She took him to and picked him up from daycare, and

she took him to doctor’s visits. The mother admitted that the child had been

injured when he fell from a stage during a birthday party when he was eight

months old. However, the child had never been hospitalized. She testified that she

had raised her twins on her own, and she had not had any problems with social

workers or with the twins’ father saying she was unfit. No complaints had been

made against her regarding the care of her children. She reported that the father

worked all of the time, even when he was not hauling a load of logs on his truck.

When the father had the child, his mother would watch the child because the father

worked so much. The mother believed it was in the child’s best interest that he

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remain primarily with her; he had been with her since birth, and she took primary

care of him.

On cross-examination, the mother admitted she that she had left the

child for extended periods of time with the father after the petition was filed and

the July agreement had been entered into. She had not had any problems

supervising the child since they had entered into the agreement, and she denied that

she had left the child solely in the care of the twins. The mother admitted that the

child had gotten sunburned and had become bruised and scratched while in her

care. He had also gotten a splinter in his foot; she believed he probably got it on

her porch. The mother addressed a Facebook post she made showing the child

sitting on an open oven door while the oven was off. She said he liked to open the

oven, and she bought a device to keep it closed that did not work. The child had

also burned his fingers when he touched the metal piece in the back of the dryer

while she was folding towels. He got blisters on his fingers as a result.

The mother called the father to testify as if on cross-examination. He

stated that he was self-employed and ran a trucking business hauling logs. He

worked nine hours a day, and he would get home about 5:00 or 6:00 in the

evening. He would sometimes work in the garage after that. The father did not

believe the child should be with the mother because she did not watch him. Since

they entered into the July agreement, something had been wrong with the child

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every week. He recounted sunburns, finger burns, and a splinter in his foot that the

father removed. The father accused the mother of driving the child around without

a car seat. He tried to call a social worker, but the social worker would not answer

the phone or return his calls. He did not report any incidents to law enforcement.

He believed that the twins supervised the child most of the time when the child was

in the mother’s care.

On direct examination, the father recounted additional deficiencies in

the mother’s supervision, including that the mother would be asleep when the

father came to get the child and that the child would be starving. As to his role as a

parent when they were still together, the father said he took care of the family

financially. He also saw to the child’s daily needs, including dressing and feeding

him, and he took the child to the doctor for checkups. The father testified that the

mother left the child in his care for extended periods after the separation. He

believed his flexible work schedule would permit him to take care of the child

when he needed to. He requested the court to find that he was more appropriate to

be the primary caregiver.

At the conclusion of the testimony, the court orally ruled that it found

no evidence to deviate from equal parenting time and opted to order joint custody

and equal timesharing on a temporary basis. The court entered a written temporary

order immediately following the hearing memorializing this ruling and ordering

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the father to pay the mother $350.00 per month in child support. A final hearing

was scheduled for October 31, 2019.

In his pre-trial memorandum, the father listed the marital and

nonmarital property that should be assigned or awarded. He indicated that the

Smith & Wesson 9mm pistol and the Savage .308 rifle were marital property. As

to his ability to care for the child, the father stated that he was self-employed and

had a flexible work schedule. He generally worked from 7:00 am to 4:00 pm or

from 7:30 am to 4:30 pm. Based upon his allegation that the mother was not

properly caring for the child while in her care, the father requested that the court

permit him to take the child to and pick the child up from daycare every day, with

the child remaining with him every evening during the week. The mother would

be able to have visitation with the child every other weekend.

In her pre-trial memorandum, the mother claimed that the pistol and

rifle were given to her as gifts and should be assigned to her. As to timesharing,

she believed the court would continue with the 50/50 timesharing, but she wanted a

different arrangement. She proposed a three-day/three-day split, with Sundays

split between them. She also sought an award of child support based upon the

amount of money the father grossed in his trucking business.

The court held the final hearing as scheduled on October 31, 2019.

The mother testified first and provided the necessary statutory evidence to support

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the dissolution. Counsel asked the court to take judicial notice of the prior hearing

as to the child custody issue, which the court allowed. Since the last hearing, the

mother had started a new job as a drug court collector supervisor for a contractor of

the Administrative Office of the Courts. This position required her to travel

throughout the eastern half of the Commonwealth. She would leave between 4:30

and 6:00 every morning, depending on where she needed to travel. Her father took

the twins to school and the child to daycare. She would get home between 2:00

and 4:00 in the afternoon. Depending on her schedule, her father or the child’s

father would have to pick the child up from daycare. The father had also watched

the child while she took out-of-town trips. The mother signed the child up for

soccer, although she had not been able to attend all of his games, while the father

had done so.

As far as the timesharing split with the father, the mother wanted one

parent to have the child for three days, then the other parent to have the child for

three days, and for each Sunday to be split between them. She did not like not

being able to see the child for a whole week. The current schedule was hard on the

child and confused him.

The mother believed she adequately supervised the child, but she

admitted that he would sometimes get away from her because “he is a kid.” The

mother agreed that she had sent a text message to the father that read, “I want him

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to get bruises and scrapes. That is how they learn.” She explained that she did not

want the child to get hurt, but said children have to learn, and will get scrapes and

bruises because they are children. The mother testified about the father’s

shortcomings, including his emotional and verbal abuse, his need to control her,

and his drinking issues.

Regarding the firearms, the mother testified that they were gifts, and

she thought they should be awarded to her. The husband had other guns that were

his; she only wanted the ones that were gifts to her.

The father testified next. He described his day-to-day care of the

child and testified that the child was with him when he was not at work. He

believed it was in the child’s best interest for him to be designated as the primary

custodian because the child got better care and supervision with him. The father

went on to testify that timesharing had not gone pursuant to the court’s order. The

mother had given up many of her days with the child and left him with the father.

The father expressed concern about the mother’s job and travel schedule. He also

expressed concern about her having guns. He said that she did not know how to

handle them or keep them safe with children in the home. He did not think she

would keep the firearms locked up.

The father called Pam Williams, his mother, next. She described the

father in a caretaking role with the child. He was very loving and attentive,

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interacted with the child on his level, and took care of him in all respects. She saw

him feeding, dressing, and bathing the child many times. Ms. Williams also

observed the mother in this role. She described the mother as preoccupied and

inattentive while at Ms. Williams’ residence. She expressed some concern that the

mother had recently brought the child to her home only wearing summer shorts

without a diaper or underwear on. She said the mother had also encouraged the

child to fight with his half-brother.

At the conclusion of the testimony, the court entered oral rulings

related to the contested issues. As to the issue of the pistol and rifle, the court

awarded the firearms to the mother as her nonmarital property, observing that the

father never claimed at the hearing that they were not her nonmarital property. The

court cautioned the mother to keep them safely away from the children in a safe

with gun locks. As to custody, the court ruled that the presumption of shared,

equal custody set forth in Kentucky Revised Statutes (KRS) 403.270(2) had not

been overcome and that it was in the best interests of the child that joint custody be

awarded. The court considered the various factors and found that the parties had

different wishes, there was no information on the child’s wishes, the child

appeared to get along well with both parents and extended family members, there

was no motivation of either party in attempting to gain custody, the child appeared

to be well-adjusted and healthy, and there was no testimony as to any physical

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health problems of the parties. The court set up a timesharing schedule and did not

award any child support as the parents’ incomes were basically the same. The

court entered a calendar order noting that it had made findings of fact on the record

and that counsel for the mother was to prepare the decree.

The court entered its written findings of fact, conclusions of law, and

decree of dissolution on November 12, 2019. The court noted that it had adopted

the evidence introduced at the August 24, 2019, temporary custody hearing as

evidence to be considered at the final hearing. The court made the necessary

statutory findings to dissolve the marriage, and it considered the evidence

introduced as to parties’ respective income as well as the marital and nonmarital

property. As to the issue of custody, the court concluded as follows:

3. The Court has considered for purposes of a custody
determination all applicable law including, but not
limited to, the provisions of KRS 403.270 and in
particular subsection 2 thereof, and the rebuttable
presumption set forth therein. The Court finds that there
has been no evidence submitted sufficient to rebut the
presumption provided for in KRS 403.270(2).

Therefore, the court awarded the parties joint custody of the child with a 50/50

timesharing arrangement as this would be in the child’s best interests. The court

set up a timesharing schedule and confirmed that no child support would be

awarded. The court went on to address the marital and nonmarital property. It

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deemed the two firearms as marital property and awarded them to the mother as

part of its just distribution of marital property.

The father moved the court to alter, amend, or vacate its November

12, 2019, order, arguing that the order of equal timesharing under KRS 403.270

was erroneous and that he had rebutted the presumption with the evidence he

submitted at the hearings. Equal timesharing, he argued, was not in the child’s best

interests and would not ensure his welfare. The father requested that he be

designated as the child’s primary custodian and that the child spend the majority of

time with him. The father also sought review of the award of the marital firearms

to the mother due to her lack of supervision of the child. This created a risk of

harm to the child. In response, the mother argued that the proof introduced at the

hearings was inadequate to overcome the presumption of 50/50 timesharing set

forth in the statute. Because there was no showing of any substantial danger to the

child, the father’s motion had no merit. The court denied the father’s motion in

orders entered December 2 and December 9, 2019. This appeal by the father now

follows.

On appeal, the father argues that the court erred in concluding that he

had not rebutted the presumption in KRS 403.270(2), failed to make specific

findings as to custody, and erred in awarding the firearms to the mother. The

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mother disagrees with these arguments and urges this Court to affirm the family

court’s judgment.

Kentucky Rules of Civil Procedure (CR) 52.01 provides the general

framework for the family court as well as review in the Court of Appeals:

In all actions tried upon the facts without a jury or with
an advisory jury, the court shall find the facts specifically
and state separately its conclusions of law thereon and
render an appropriate judgment . . . . Findings of fact,
shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses.

See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An

appellate court may set aside a lower court’s findings made pursuant to CR 52.01

“only if those findings are clearly erroneous.”).

CR 52.01 provides that a reviewing court must afford “due regard . . .

to the opportunity of the trial court to judge the credibility of the witnesses.” And

“when the testimony is conflicting we may not substitute our decision for the

judgment of the trial court.” R.C.R. v. Com. Cabinet for Human Resources, 988

S.W.2d 36, 39 (Ky. App. 1998) (citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky.

1967)). See Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citation

omitted) (“When an appellate court reviews the decision in a child custody case,

the test is whether the findings of the trial judge were clearly erroneous or that he

abused his discretion.”).

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 KRS 403.270(2) sets forth the factors a court must consider when

deciding the best interests of the child in custody matters:

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.
Subject to KRS 403.315, there shall be a presumption,
rebuttable by a preponderance of evidence, that joint
custody and equally shared parenting time is in the best
interest of the child. If a deviation from equal parenting
time is warranted, the court shall construct a parenting
time schedule which maximizes the time each parent or
de facto custodian has with the child and is consistent
with ensuring the child’s welfare. 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 or her custody;

(b) The wishes of the child as to his or her custodian,
with due consideration given to the influence a parent or
de facto custodian may have over the child’s wishes;

(c) The interaction and interrelationship of the child with
his or her parent or parents, his or her siblings, and any
other person who may significantly affect the child’s best
interests;

(d) The motivation of the adults participating in the
custody proceeding;

(e) The child’s adjustment and continuing proximity to
his or her home, school, and community;

(f) The mental and physical health of all individuals
involved;

(g) A finding by the court that domestic violence and
abuse, as defined in KRS 403.720, has been committed

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 by one (1) of the parties against a child of the parties or
against another party. The court shall determine the
extent to which the domestic violence and abuse has
affected the child and the child’s relationship to each
party, with due consideration given to efforts made by a
party toward the completion of any domestic violence
treatment, counseling, or program;

(h) The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian;

(i) The intent of the parent or parents in placing the child
with a de facto custodian;

(j) The circumstances under which the child was placed
or allowed to remain in the custody of a de facto
custodian, including whether the parent now seeking
custody was previously prevented from doing so as a
result of domestic violence as defined in KRS 403.720
and whether the child was placed with a de facto
custodian to allow the parent now seeking custody to
seek employment, work, or attend school; and

(k) The likelihood a party will allow the child frequent,
meaningful, and continuing contact with the other parent
or de facto custodian, except that the court shall not
consider this likelihood if there is a finding that the other
parent or de facto custodian engaged in domestic
violence and abuse, as defined in KRS 403.720, against
the party or a child and that a continuing relationship
with the other parent will endanger the health or safety of
either that party or the child.

“Generally speaking, a trial court has broad discretion in determining what is in the

best interest of children when making determinations as to custody.” Keith v.

Keith, 556 S.W.3d 10, 15 (Ky. App. 2018) (citing Krug v. Krug, 647 S.W.2d 790,

793 (Ky. 1983)).

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 We shall first consider the father’s second argument, which addresses

whether the family court made the requisite written findings to support its decision

on custody pursuant to CR 52.01. The father contends that the family court did not

make sufficient written findings to support its decision that the father had not

rebutted the presumption in KRS 403.270(2) in either its August 19, 2019,

temporary custody order or in the November 12, 2019, final order. The mother, on

the other hand, argues that the father failed to bring this deficiency to the family

court’s attention via CR 52.04 and is therefore barred from raising this on appeal.

Our review of the October 31, 2019, hearing reflects that the family court made

several oral findings related to the factors listed in KRS 403.270(2); however,

these oral findings were not included in the written order. Rather, the court merely

stated in the written order that it had considered both the factors in KRS

403.270(2) to determine that the presumption had not been rebutted and the

remaining provisions of the statute to determine that joint custody with 50/50

timesharing was in the child’s best interests.

The Supreme Court of Kentucky extensively addressed the issue of

the need for written findings of fact in Keifer v. Keifer, 354 S.W.3d 123 (Ky.

2011), holding that oral findings are not enough to satisfy the statutory requirement

of KRS Chapter 403 that findings be in writing:

Cory [the appellant] . . . argues that even if written
findings were necessary, Jaylynne [the appellee] failed to

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preserve the issue for appellate review [by the Court of
Appeals] because she did not follow the requirement of
CR 52.04 that she request the trial court to make the
specific findings.

We addressed these initial points in our recent
decision in the case of Anderson v. Johnson, 350 S.W.3d
[453, 454 (Ky. 2011)]. There we held that in domestic
relations cases, post-decree motions concerning visitation
and timesharing modifications are “actions tried upon the
facts without a jury” under CR 52.01, and therefore “CR
52.01 requires that the judge engage in at least a good
faith effort at fact-finding and that the found facts be
included in a written order.” Id. (emphasis added). We
again state with emphasis that compliance with CR 52.01
and the applicable sections of KRS Chapter 403 requires
written findings, and admonish trial courts that it is their
duty to comply with the directive of this Court to include
in all orders affecting child custody the requisite findings
of fact and conclusions of law supporting its decisions.
Consideration of matters affecting the welfare and future
of children are among the most important duties
undertaken by the courts of this Commonwealth. In
compliance with these duties, it is imperative that the
trial courts make the requisite findings of fact and
conclusions of law to support their orders. Thus, we
agree with the Court of Appeals that the order here was
deficient and we reject Cory’s argument that the trial
court was not obligated to make written findings of fact
when it ruled upon Jaylynne’s motion.

Cory also argues that the Court of Appeals erred
by reversing the trial court’s order on account of its
deficient fact findings because Jaylynne’s failure to
comply with CR 52.04 by requesting specific findings
resulted in a waiver of that issue. We also addressed that
question in Anderson and concluded that a trial court’s
“[f]ailure to [make any of the statutorily required
findings of fact] allows an appellate court to remand the
case for findings, even where the complaining party

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failed to bring the lack of specific findings to the trial
court’s attention.” Id. at 458. However in the instant
case, while the written order entered by the trial court
failed to reflect those findings of facts, and even failed to
indicate compliance with the “best interest of the child”
standard, the factual basis for the trial court’s decision is
not a mystery.

At the conclusion of the evidentiary hearing, the
trial judge explicitly stated comprehensive findings,
albeit orally instead of in writing, which indicated clearly
that she was basing her decision on what she determined
from the evidence to be in the children’s best interest.
She referenced facts pertinent to the applicable factors set
forth in KRS 403.270(2). But for the use of a deficient
and wholly inadequate written order, the judge complied
with her duty to make findings of fact, at least in
substance if not in form. As emphasized above, the trial
judge’s duty is not satisfied until the findings have been
reduced to writing. Nevertheless, we need not ignore
findings of fact and conclusions of law orally issued from
the bench at the end of the hearing to inform us as to the
trial court’s ratio decidendi.

Notwithstanding our conclusion that the trial
court’s rationale is readily determinable from the record,
we state again that compliance with CR 52.01 and the
applicable sections of KRS Chapter 403 requires written
findings. We do not expect the appellate courts of this
state to search a video record or trial transcript to
determine what findings the trial court might have made
with respect to the essential facts. Moreover, the final
order of the trial court, especially in family law cases,
often serves as more than a vehicle for appellate review.
It often becomes a necessary reference for the parents
and third parties, such as school officials, medical
providers, or other government agencies with
responsibilities requiring knowledge of the facts
determined by the trial court. The judges presiding over
family law matters must be mindful of the ramifications

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 of their written orders. A bare-bone, conclusory order
such as the one entered here, setting forth nothing but the
final outcome, is inadequate and will enjoy no
presumption of validity on appeal.[1]

In summary, we affirm the decision of the Court of
Appeals with respect to the inadequacy of the order.
However, we conclude upon review of the record that
adequate findings were made from the bench at the
conclusion of the hearing. Nevertheless, in order to
comport with the mandatory requirements of Anderson,
we are constrained to remand the cause to the Hardin
Family Court for entry of a new order setting forth in
writing the trial court’s findings of fact and conclusions
of law. In compliance with this mandate, the family
court may substantially rely upon its discussion from the
bench at the conclusion of the evidentiary hearing.

Keifer, 354 S.W.3d 123, 125-27 (footnote 2 omitted).

In the present case, as in Keifer, we believe that the family court’s oral

findings at the October 31, 2019, hearing and the testimony and evidence

introduced at both hearings most likely supported its custody ruling. However, we

are constrained to remand this matter to the family court for the entry of an order

1
“It has been suggested that our decision in Commonwealth v. Alleman, 306 S.W.3d 484, 484-
485 (Ky. 2010) is authority for the view that oral findings preserved on video record will serve as
the equivalent of written findings. That view is a misreading of Alleman, which held only that
such oral findings satisfied the probationer’s federal due process right to know the basis upon
which his probation was revoked and to enable him to argue the sufficiency of those facts on
appeal. The issue here is not constitutional due process, but compliance with the requirements of
KRS Chapter 403 and our Civil Rules for written findings of fact and conclusions of law. In
Alleman, we discerned no error. Here, the failure to provide written finding[s] is error, which, as
noted, may be cured upon remand.” (Footnote 3 in original.)

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containing written findings of fact and conclusions of law based on the evidence

presented at the two hearings.

As to the family court’s award of the firearms to the mother, we reject

the father’s argument that this was in error. KRS 403.190(1) addresses the

disposition of property in a dissolution action and requires a court to “assign each

spouse’s property to him. It also shall divide the marital property without regard to

marital misconduct in just proportions considering all relevant factors[,]” including

the contribution of the spouses to the acquisition of the marital property, the value

of the property that the court had set apart for each spouse, the duration of the

marriage, and the economic circumstances of each spouse. KRS 403.190(2) states

that “[f]or the purpose of this chapter, ‘marital property’ means all property

acquired by either spouse subsequent to the marriage except: (a) Property acquired

by gift, bequest, devise, or descent during the marriage[.]” At the final hearing, the

mother testified that these firearms were gifts to her, and the court, in its oral

ruling, found that these items were nonmarital. However, in the written order, the

court found that these firearms were marital property and concluded that it was just

to award them to the mother. We note there was testimony that the father owned

several other firearms.

The father asserts that it would not be in the child’s best interest that

the mother be awarded the firearms based upon his allegations that she did not

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adequately supervise the child. However, as the mother points out, nothing in the

statute requires the court to consider the best interests of the child when awarding

property in a dissolution action. We find no abuse of discretion in the court’s

decision to award the mother the two firearms at issue and affirm on this issue.

For the foregoing reasons, we affirm in part and vacate in part, and we

remand this matter to the Morgan Family Court “with specific directions to enter

an order that properly reflects in writing that court’s findings of fact and

conclusions of law based upon the evidence that was presented at the hearing[s]

previously held.” Keifer, 354 S.W.3d at 127.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Robert G. Miller, Jr. W. Jeffrey Scott
Paintsville, Kentucky Brandon M. Music
Grayson, Kentucky

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