RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1399-MR
CHANIQUA BOYD-GILL APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE PAMELA K. ADDINGTON, JUDGE
ACTION NO. 20-CI-00970
VEROL GILL APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON,
JUDGES.
THOMPSON, L., JUDGE: Chaniqua Boyd-Gill (“Appellant”) appeals from
findings of fact, conclusions of law, judgment, and decree of the Hardin Circuit
Court dissolving her marriage with Verol Gill (“Appellee”). Appellant argues that
the circuit court erred in awarding Appellee primary custody of the parties’ minor
child. After careful review, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
The parties were married in 2010. The marriage produced one child
(hereinafter referred to as “Child”), who was born in 2013. Appellant also has a
son from a prior relationship. At the time of the filing of this appeal, both parties
served in the United States military. Appellant is employed by the National Guard
and Appellee is on active military duty.
In 2020, the parties were involved in multiple, competing domestic
abuse proceedings, as well as a dependency, abuse, and neglect case. That same
year, Appellant stabbed Appellee with a knife, resulting in Appellee’s serious
injury. That was followed by his hospitalization and surgery. Both parties sought
orders of protection. Appellee was granted an order of protection against
Appellant. Appellant’s petition for a protective order against Appellee was denied.
The stabbing resulted in Appellant being charged with assault in
federal court. She entered a plea of guilty and acknowledged that she assaulted
Appellee with a knife without just cause and with intent to do bodily harm.
Thereafter, Child and Appellant’s older son from the prior relationship were
removed from the parties’ home, placed in foster care, and some months later cared
for by their maternal great aunt in New York.
In 2020, Appellee filed the underlying petition for dissolution of
marriage in Hardin Circuit Court. A final hearing on the petition was conducted on
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June 11, 2021. The parties testified at the hearing, as did the Appellant’s therapist
who was designated as an expert witness. The children’s maternal great aunt and a
youth basketball coach also testified. The hearing resulted in findings of fact,
conclusions of law, judgment, and decree which disposed of all issues before the
court. The decree terminated the parties’ marriage.
In considering the testimony and the law, the court determined that the
primary issue before it was the custody and parenting time of Child. The court
noted that it was very familiar with the parties and Child by virtue of the
competing domestic violence claims and the dependency, neglect, and abuse
proceeding. The court made extensive findings of fact centered on Child’s best
interests. It found that both parties genuinely loved Child and wanted what was
best for her, and that this love was reciprocated by Child. The court noted that
while the expert witness, Dr. Kris Williams-Falcon, was knowledgeable and
articulate, she had dealt primarily with Appellant rather than Appellee and was not
familiar with the underlying facts. This finding somewhat limited the court’s
reliance on her testimony.
The court recounted the incident in which Appellant stabbed
Appellee. The parties had an argument in the kitchen of their residence and
Appellant claimed that Appellee physically attacked her resulting in her use of the
knife in self-defense. Appellant acknowledged, however, that she, rather than
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Appellee, was charged with a crime, and that she entered a plea of guilty to the
assault charge. The court found that Child either witnessed the stabbing or was
aware of it as it happened, and that her older half-brother saw Appellant with the
knife in her hand.
The court went on to make comprehensive findings regarding the
testimony of Child’s great aunt, Child’s basketball coach, and her older half-
sibling. The substance of the findings was that the parties have a good relationship
with Child, and that Child is happy and well-adjusted. The court acknowledged
that this was a very difficult case on the issue of custody, because both parents love
their daughter. In applying Kentucky Revised Statutes (“KRS”) 403.270 to
determine Child’s best interests, the court found that it could not disregard
Appellant’s knife assault on Appellee, the federal criminal charge which followed,
and Appellant’s plea of guilty and acknowledgment of the crime. It noted that no
criminal charge or finding of domestic violence against Appellee had been made.
These findings led the court to conclude that Child’s best interests were served by
granting joint custody to the parties, with Appellee designated as the primary
residential custodian. This conclusion was memorialized in the court’s findings of
fact, conclusions of law, judgment, and decree entered on August 27, 2021.
Appellant’s motion to alter, amend, or vacate the judgment was denied on
November 3, 2021, and this appeal followed.
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STANDARD OF REVIEW
Trial courts are . . . vested with broad discretion in
matters concerning custody and visitation. In the absence
of an abuse of discretion, we will not disturb a trial
court’s decision. The test is not whether we as an
appellate court would have decided the matter
differently, but whether the trial court’s rulings were
clearly erroneous or constituted an abuse of discretion.
Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018) (citations omitted). An
abuse of discretion occurs if the trial court’s ruling is “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999).
ARGUMENTS AND ANALYSIS
Appellant argues that the Hardin Circuit Court committed reversible
error in awarding primary residential custody of Child to Appellee rather than to
Appellant. In support of this argument, Appellant asserts that Child’s best interests
are not served with Appellee designated as the primary residential custodian.
Appellant directs our attention to the factors set out in KRS 403.270 for
determining a child’s best interests, and focuses on her claims that the circuit
court’s decision: 1) effectively removes Child from other family members; 2)
contradicted the opinions of Child’s guardian ad litem; and 3) could result in
serious harm or endangerment to Child. Appellant notes that during the pendency
of the dependency, neglect, and abuse case, as well as the dissolution proceeding,
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Child lived in New York state with Appellant’s extended family, which allowed
Child to have a close relation with her older step-brother. Appellant asserts that
the circuit court improperly speculated that the step-brother would no longer be
part of Child’s life after he turned 18 years old, and that there is no evidence to
support this conclusion.
Appellant goes on to argue that each of the factors set out in KRS
403.270 demonstrate that the best interests of Child are served by designating
Appellant as Child’s primary residential custodian. Appellant argues that Child is
well adjusted to her home, school, and community, and that Appellee has a history
of domestic violence which should not be ignored. She contends that the circuit
court missed several factors supporting her designation as primary residential
custodian, and argues that the sum of these factors support a finding that the circuit
court abused its discretion on this issue.
KRS 403.270(2) states,
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:
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(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
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
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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.
In considering the issue of custody, the Hardin Circuit Court expressly
considered each of the factors set out in KRS 403.270(2). It found that both
parents were seeking residential custody (KRS 403.270(2)(a)). Though Child did
not testify nor express her wishes as to custody (KRS 403.270(2)(b)), based on
other testimony the court found that Child has a good relationship with both
parents and loves them both. KRS 403.270(2)(c) and (d). The court found that
Child has a good bond with her half-brother, though he is now nearing the age of
majority and the court speculated that he may be living independently away from
Child irrespective of Child’s custody. As to KRS 403.270(2)(e), the court believed
that Child was probably emotionally attached to New York though she was capable
of integrating into the community while residing with either parent.
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Regarding the physical and mental health of the parties (KRS
403.270(2)(f)), the court did not hear any testimony as to either party. The court
focused on KRS 403.270(2)(g), i.e., domestic violence issues, and noted that
Appellant had stabbed Appellee resulting in his serious physical injury, and had
entered a plea of guilty to a federal assault charge resulting from the incident.
While recognizing that Appellant claimed she was acting in self-defense, the court
found that this was a traumatic event for Child which she will likely have to come
to terms with emotionally in the future. The court also noted that a domestic
violence order was entered against Appellant, and none were entered against
Appellee despite Appellant’s multiple claims of domestic violence committed by
Appellee.
Based on all of the foregoing, the Hardin Circuit Court determined
that the best interests of Child were served by ordering joint custody with Appellee
designated as primary residential custodian. The question for our consideration,
then, is whether this ruling is clearly erroneous and constitutes an abuse of
discretion. Jones, supra.
We are not persuaded by Appellant’s claim that the custody order
should be reversed because it effectively removes Child from other family
members, contradicts the opinions of Child’s guardian ad litem, and could result in
serious harm or endangerment to Child. While it is the unfortunate reality that a
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dissolution proceeding may result in a child being geographically separated from a
parent or other relatives, the court is nevertheless bound to render a custody ruling
in accordance with KRS 403.270(2) based on the child’s best interests. Further,
there is no evidence in the record that Child is in danger of serious harm by
residing with Appellee, who has never been subject to a domestic violence order
nor criminal conviction.
The circuit court conducted a thorough review of the testimony, and
expressly considered each of the factors set out in KRS 403.270(2). While few of
the factors inured to the benefit of one party over the other, Appellant’s stabbing of
Appellee and her resultant plea of guilty to a federal assault charge appeared to be
the determining factor in persuading the circuit court that Child’s best interests
were served by primary custodial residency with Appellee. This finding is
supported by the record and the law, and is not arbitrary, unreasonable, unfair, nor
unsupported by sound legal principles. English, supra. As such, it does not
constitute an abuse of discretion. Jones, supra.
CONCLUSION
For these reasons, we find no error and affirm the findings of fact,
conclusions of law, judgment, and decree of the Hardin Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
William D. Tingley Dawn Logsdon Johnson
Hillary A. Hunt Radcliff, Kentucky
Ft. Mitchell, Kentucky
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