Retherford v. Monday

VANMETER, JUDGE,

CONCURRING:

Although I concur in the result reached by the majority, I write separately because I disagree with its main rationale for vacating the trial court’s decision. Regardless of what we may think of the practice of trial courts signing documents prepared by counsel, e.g., Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky.App.1979), the Kentucky Supreme Court, apparently does not share that view:

First, Appellant claims the trial court failed to make independent findings of fact as required by CR 52.01. He bases this allegation on the fact that the trial court adopted the Cabinet’s proposed findings of fact without correction or change. The trial court requested both parties to submit proposed findings of fact, which both did. It is not error for the trial court to adopt findings of fact which were merely drafted by someone else. Bingham v. Bingham, Ky.,. 628 S.W.2d 628 (1982).

Prater v. Cabinet for Human Res., 954 S.W.2d 954, 956 (Ky.1997). As noted by the majority, a trial court does not err by inviting counsel to submit Findings of Fact and Conclusions of Law, and then exercising its discretion in making its selection, as apparently occurred in Prater. Keifer v. Keifer, 354 S.W.3d 123 (Ky.2011), cited by the majority, does not compel a different result because the issue in that case was merely the insufficiency of the order, not whether the trial court had adopted a version tendered by one of the attorneys.

Under our civil rules, “[fjindings 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. CR3 52.01. A custody determination “is a mixed question of fact and law requiring a two-tier analysis. First, we review .a trial court’s factual findings, disturbing them only if they are clearly erroneous—meaning they are unsupported by substantial evidence which is defined as that which is ‘sufficient to induce conviction in the mind of a reasonable *234person.’ ” Ball v. Tatum, 373 S.W.3d 458, 463-64 (Ky.App.2012) (quoting B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky.App. 2005)).

That said, I concur with the result in the majority opinion since the trial court, in adopting Monday’s view of the evidence, as set forth in his tendered Findings of Fact and Conclusions of Law, appears to have wholly discounted all of the evidence relating to the home environment that Monday provides for the child, Monday’s compliance with Dr. Feinberg’s recommendations, Monday’s financial resources, and whether Monday is properly providing for the child’s medical and dental care. In other words, the Findings appear to be unsupported by substantial evidence which is sufficient to induce conviction in the mind of a reasonable person.

. Kentucky Rules of Civil Procedure.