RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0050-MR
DOWARD HEATH MCCALL APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
v. HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 13-CI-00174
LONICA L. MCCALL
(NOW CLARK) APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON,
JUDGES.
CLAYTON, CHIEF JUDGE: Doward Heath McCall (“Heath”) appeals from the
Carter Family Court’s findings of fact and conclusions of law which denied his
motion to be designated the primary residential custodian and to modify time-
sharing of his children with his ex-wife, Lonica L. McCall, now Clark (“Lonica”).
Heath argues that the family court applied the wrong statutory standard in making
its determination and ignored evidence of improper behavior by the children’s
stepbrother. Because we agree that the family court applied the wrong standard in
deciding Heath’s motion, we vacate its findings of fact and conclusions of law and
remand for new findings under the appropriate standard.
Heath and Lonica were married on June 12, 2009. They have two
daughters, A.M. and M.M., who were aged thirteen and nine respectively at the
time of the evidentiary hearing in this case. Lonica filed a petition for dissolution
of marriage on June 6, 2013, and a decree of dissolution was entered on August 26,
2013. The parties agreed to joint custody of the children with Lonica designated as
the primary residential custodian.
In March 2020, Lonica married Chuck Clark. Chuck has a son who
was eleven years of age at the time of the hearing. He and his son reside in the
same home with Lonica, M.M., and A.M.
On August 14, 2020, Heath filed a motion requesting designation as
the primary residential custodian and limiting Lonica to guideline time-sharing. In
the accompanying affidavit, Heath stated that since the dissolution of their
marriage, Lonica had been married three times and became engaged four times.
He expressed concern that Lonica was providing a very unstable home life for their
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daughters. He also alleged that she fabricated health scares for herself and the
elder daughter, A.M., in order to generate community sympathy.
Following a hearing, the family court issued findings of fact and
conclusions of law. The court found that Heath had “an issue” with Lonica
remarrying, and noted that he himself is not married and has a live-in girlfriend.
The court further found that Heath works regularly, leaves early for work at around
5 to 7 a.m. and occasionally works out of town. On these occasions, the children
would be in the care of his girlfriend. The court found there was no testimony or
evidence that Lonica was fabricating health scares or that she punished the children
for complaining about moving husbands into the home. The court cited the
testimony of the Director of Pupil Personnel for the Carter County Schools that
neither M.M. nor A.M. has an issue with attendance or grades and that Heath did
not deny these facts. The court noted A.M.’s testimony that she wants to spend
more time at her father’s home and M.M.’s testimony that she wishes everything to
stay the same.
The family court denied Heath’s motion to modify timesharing,
concluding that “[p]ursuant to [Kentucky Revised Statutes (“KRS”)] 403.340
Respondent [Heath] has not presented any evidence that the child’s present
environment may endanger seriously his/her physical, mental, moral or emotional
health; or that custodian has placed the child with a de facto custodian.”
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Heath filed a motion to alter, amend, or vacate, on the grounds that the
court should have applied the “best interests of the child” standard and had ignored
testimony from A.M. that Chuck’s son had behaved inappropriately towards her.
He also filed a motion for additional findings of fact regarding this testimony. The
trial court summarily denied the motions and this appeal by Heath followed.
Heath’s first argument concerns the statutory standard applied by the
family court in deciding his motion. The family court applied the standard found
in KRS 403.340, the statute which governs the modification of a custody decree.
But Heath was not seeking a modification of the decree which specified that he and
Lonica shared joint custody of the children. He was seeking to become the
primary residential parent “which would be a modification of timesharing under
joint custody.” Pennington v. Marcum, 266 S.W.3d 759, 768-69 (Ky. 2008).
Heath was “asking the court to consider what is in the best interests of the child as
to where and to what extent the child spends time, not that he become the sole
decision-maker.” Id. The applicable standard under these circumstances is found
in KRS 403.320, which governs the modification of visitation.
KRS 403.320(3) provides: “The court may modify an order granting
or denying visitation rights whenever modification would serve the best interests of
the child; but the court shall not restrict a parent’s visitation rights unless it finds
that the visitation would endanger seriously the child’s physical, mental, moral, or
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emotional health.” “[U]nder KRS 403.320(3), a court can modify timesharing if it
is in the best interests of the child, but it can only order a ‘less than reasonable’
timesharing arrangement if the child’s health is seriously endangered.” Layman v.
Bohanon, 599 S.W.3d 423, 429 (Ky. 2020).
The family court in this case evaluated the evidence for signs that the
children’s present environment seriously endangered their physical or emotional
health. This factor would only come into play, however, if the court wished to
modify timesharing to give Lonica a “less than reasonable” timesharing
arrangement.
Accordingly, this matter is remanded for the family court to consider
the evidence under the “best interests of the child” standard found in KRS
403.320(3) As to Heath’s contention that the family court failed to consider and
give sufficient weight to A.M.’s testimony about her stepbrother’s behavior, on
remand the family court will be given the opportunity to review this evidence again
and decide if it is pertinent to its analysis.
For the foregoing reasons, the findings of fact and conclusions of law
of the Carter Family Court are vacated and the matter is remanded for further
proceedings in accordance with this Opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert W. Miller Justin Criswell
Grayson, Kentucky Grayson, Kentucky
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