Jessica Ingram v. Chad Ingram ( 2021 )

RENDERED: OCTOBER 1, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1083-MR
JESSICA INGRAM APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 11-CI-00376
CHAD INGRAM APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Jessica Ingram (Mother) appeals from a post-decree judgment of
the Oldham Family Court which awarded appellee Chad Ingram (Father) equal
parenting time and denied her motions for the entry of domestic violence orders.
We affirm.
Unfortunately for the child who is the focus of this appeal, both pre-
decree and post-decree litigation concerning him is extensive. The parties married
in 1998 and have one child born in 2010 (the child). In March 2011, the Oldham
Family Court entered a domestic violence order (DVO) which required Father to
have no contact with Mother; permitted him only three hours weekly parenting
time with the child on Sundays; required him to remain 200 feet away from
Mother; required him to vacate the marital residence; and required him to enroll in
an anger management course. It is not clear from the record precisely what
precipitated the entry of the DVO. In April 2011, Father filed a petition for
dissolution of the parties’ marriage.
In May 2011, the family court ordered a custodial evaluation to be
performed by a court-approved doctor and expanded Father’s parenting time with
the child, increasing his Sunday visitation from three to five hours and ordering
additional weekly parenting time from 6:30 p.m. Wednesday until 8:15 a.m.
Thursday morning. The parties completed a custodial evaluation with Dr. Jennifer
Cebe during the summer of 2011, after which Dr. Cebe filed an evaluation which
included the following recommendations: that the Court delay designation of a
permanent custodian of the child for one year; that Father’s visitation with the
child be expanded to one overnight per week, every other weekend, and half of
holidays; that all exchanges of the child occur at an exchange center; and that the
parties return for an updated evaluation in one year. Thereafter, in December
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2011, the family court allowed the previously-entered DVO to expire and adopted
Dr. Cebe’s proposed parenting schedule.
After completing a second custodial evaluation in November 2012,
Dr. Cebe advised the family court of her opinion concerning the parties’
interactions regarding the child:
The two biggest obstacles from this evaluator’s
perspective will be [Mother’s] unwavering conviction, in
spite of neutral evidence to the contrary, that [Father] is
at high risk to sexually abuse [the child], and [Father’s]
over-focus on his “rights as a parent” viewing situations
from a child-focused basis at times. [Mother’s]
significant fears may give rise to behaviors that she
perceives as protective on her part, but in fact become
damaging to [the child] if they endanger the father/son
attachment relationship in a situation where such a
disruption is unwarranted. She also runs the risk of
losing credibility and not being believed if a situation
arose in the future that truly met criteria for
abuse/neglect. [Father] feels [Mother] has not respected,
even undermined his rights as [the child’s] father and that
has led to some rigidity about practicing his parenting
time. At times that [the child] might benefit from not
making the transition from home to home, such as when
he is ill, [Father] had become angry and defensive. That
may lead to other’s perceptions that he is not prioritizing
[the child’s] needs. Both parties must consider what their
negative contributions to the situation may be and must
be willing to work on those issues so that [the child] does
not pay the price for adult issues.
The family court ultimately entered a decree dissolving the parties’ marriage in
May 2013. In its findings of fact and conclusions of law, the family court granted
Mother and Father joint custody with Mother being designated the primary
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residential custodian. Father was granted parenting time every other weekend,
every Wednesday night, and every other Thursday night when he did not have the
child for the weekend.
In July 2018, Father moved to hold Mother in contempt for her
unilateral decision to suspend his parenting time. At the October 2018 hearing
conducted on the contempt motion, Mother testified that she had suspended
Father’s parenting time because she suspected Father had abused the child. The
family court thereafter entered an order compelling Mother to abide by the
parenting schedule while it took Father’s contempt motion under submission.
Because Mother refused to comply with the order to resume Father’s parenting
time, Father filed a second contempt motion three days after entry of the family
court’s order. After a hearing on the second contempt motion, the family court
ultimately entered a January 2019 order holding Mother in contempt for her willful
violation of court orders. The family court specifically found Mother had refused
to comply with its order to resume parenting time despite the fact that an
investigation by the Cabinet for Health and Family Services found the abuse
allegations to be unsubstantiated and the fact that it had advised that the normal
parenting schedule should be resumed. Accordingly, the family court awarded
Father twenty-five days of make-up parenting time, as well as $1500 in attorney’s
fees which was to be paid within thirty days of the date of the order. Mother’s
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failure to comply with this order prompted yet another contempt motion in April
2019.
In May 2019, the family court entered an order memorializing the
parties’ agreement that Father would withdraw his motion for contempt upon
Mother’s agreement to pay Father’s accrued attorney’s fees in the amount of
$3,380 and noting that the hearing scheduled for July 2019 would still be
conducted. After that hearing, the family court entered another agreed order
concerning Father’s entitlement to make up twenty-five days of parenting time.
Review of the record indicates that the orders at issue in this appeal appear to have
been precipitated by Father’s December 2019 motion for equal parenting time. In
that motion, Father alleged that since entry of the July agreed order the parties had
been exercising equal parenting time and that the child was doing markedly better
in school, among other things. The family court set the matter for a March 5, 2020
hearing.
On February 27, 2020, Mother filed a petition for entry of an
emergency protection order (EPO) and DVO on behalf of the child which was
denied on its face by the Oldham Family Court on the same date at 12:57 p.m.,
without conducting a hearing. At the beginning of the March 5, 2020 hearing on
Father’s motion for equal parenting time, the family court was informed that after
its denial of Mother’s February 27, 2020 petition for a DVO, Mother had filed a
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virtually identical petition later that same day as action No. 20-D-500617-001 in
Jefferson Family Court. Division 10 of Jefferson Family Court had set the matter
for a hearing on March 10, 2020. The Oldham Family Court then proceeded with
its March 5 hearing and entered the following calendar order on March 6, 2020:
The parties were before the Court with counsel on 3-5-
20, for a hearing on Petitioner’s [Father’s] motions to
modify parenting time and pick up. The following
witnesses testified: Ann Lubbers, Cabinet; Chad Ingram
[Father]; Christina Brazzell, Petitioner’s spouse; Lauren
Ganote, therapist; Brittany Kaatz, The Brook therapist
and testimony was started from Claudia Crawford,
therapist. The Court determined that it was inappropriate
to go forward with a therapist that had minimal contact
with the child plus it was not agreed on by the parties.
The remaining testimony shall be from Jessica Ingram
[Mother]. This matter is continued to March 13, 2020, at
9:00 am. In addition, as [it is] anticipated that the EPO
filed by the Respondent in Jefferson County shall be
transferred to Oldham County and heard at that time.
The Court appoints Dr. Ann Hammon as the child’s
therapist. The parties are to immediately contact Dr.
Hammon to set up appointments for self and child. Her
fee shall be pro-rated between the parties 28% Petitioner
and 72% by Respondent.
On April 23, 2020, the Oldham Family Court entered an order directing that the
parties shall have joint custody and equal parenting time, without designation of a
primary residential parent, and denying and dismissing Mother’s petition for the
EPO and DVO transferred to Oldham Family Court from the Jefferson County
proceeding. By subsequent order entered on August 27, 2020, the family court
reiterated the findings in its previous order, added additional findings, and denied
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Mother’s motion to alter, amend, or vacate its order of April 23, 2020. This appeal
followed.
Mother advances three issues in support of her contention that the
orders of the family court are erroneous: 1) that the denial of her motion for an
EPO is erroneous; 2) that the modification of the parenting schedule is erroneous;
and 3) that it was error to adopt findings of fact and conclusions of law prepared by
Father’s counsel. We perceive no reversible error in any of the arguments pressed
for reversal.
As an initial matter, we reiterate the familiar standard by which
appellate courts review custody awards set out in B.C. v. B.T.:
In reviewing a child-custody award, the appellate
standard of review includes a determination of whether
the factual findings of the family court are clearly
erroneous. A finding of fact is clearly erroneous if it is
not supported by substantial evidence, which is evidence
sufficient to induce conviction in the mind of a
reasonable person. Since the family court is in the best
position to evaluate the testimony and to weigh the
evidence, an appellate court should not substitute its own
opinion for that of the family court. If the findings of
fact are supported by substantial evidence and if the
correct law is applied, a family court’s ultimate decision
regarding custody will not be disturbed, absent an abuse
of discretion. Abuse of discretion implies that the family
court’s decision is unreasonable or unfair.
182 S.W.3d 213, 219 (Ky. App. 2005) (citations and footnotes omitted). Similarly,
with respect to orders of protection, this Court held in Caudill v. Caudill, that while
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“domestic violence statutes should be construed liberally in favor of protecting
victims from domestic violence and preventing future acts of domestic violence,”
appellate courts accord much deference to decisions of the family court, but will
not “countenance actions that are arbitrary, capricious or unreasonable.” 318
S.W.3d 112, 115 (Ky. App. 2010) (citations omitted).
Applying these principles to the decisions of the family court in
question here, we find absolutely no basis upon which we might disturb its
findings and conclusions. First, concerning the denial of Mother’s EPO and DVO,
the family court specifically stated:
The Court denies [Mother’s] Petition for entry of a
Domestic Violence Order and the Petition is dismissed.
A separate Order in the “D” case was entered dismissing
same. The Court has reviewed the Petition for entry of a
Domestic Violence Order filed in Jefferson County and
the Petition [for] entry of a Domestic Violence Order
filed in Oldham County both on February 27, 2020. This
Court denied the entry of a Domestic Violence Order in
the latter case. The Petition contains facts that are almost
identical in the first petition for which relief was denied.
Furthermore, the Petitions (both in Oldham County and
Jefferson County) are replete with hearsay evidence,
statements that are attributed to the child. The child was
not called as a witness by [Mother] in the Domestic
Violence part of the hearing. [Mother] is not a believable
witness. The Court heard no additional evidence
warranting entry of the requested order.
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Nevertheless, Mother argues that the family court’s decision is an abuse of
discretion because the statements attributed to the child were corroborated through
the testimony of Ms. Ann Lubbers, Ms. Lauren Ganote, and Ms. Brittany Kaatz.
Prior to addressing the merits of Mother’s contention, we consider
Father’s threshold position that Mother’s failure to directly appeal from the orders
in the Oldham Family Court’s “D” domestic violence cases precludes our review.
Father posits that the present appeal from action No. 11-CI-00376 addresses only
post-dissolution proceedings including the child custody issues which have arisen
since the entry of the dissolution decree. Mother’s February 27, 2020 petitions for
entry of an EPO and DVO were addressed in Oldham County action No. 11-D-
00026-003 and were denied on their face. After the petition filed that same date in
Jefferson Family Court was transferred back to Oldham County, it was assigned
action No. 11-D-00026-004. Thus, Father maintains that Mother’s failure to
appeal from the orders entered in action Nos. 11-D-00026-003 and 11-D-00026-
004 precludes her from raising the EPO and DVO issues in this separate post-
dissolution child custody case. We agree.
A thorough search of the record in this appeal discloses that none of
the EPO or DVOs in question were filed in action No. 11-CI-00376. Thus, neither
the exact nature of the allegations nor the evidence offered in support of them are
available for our review. The mere fact that the family court referenced entry of
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orders denying the EPOs and DVOs in the respective “D” cases is an insufficient
basis for conferring jurisdiction to allow review of those orders in this appeal.
Accordingly, this Court is without jurisdiction to review issues surrounding the
denial of the EPOs and DVOs in action Nos. 11-D-00026-003 and 11-D-00026-
004.
Next, Mother insists that the family court abused its discretion in
granting Father’s motion for equal parenting time. As argued in his motion, Father
had been exercising equal parenting time with the child for almost six months due
to the make-up parenting time ordered because of Mother’s willful disregard of its
previous time-sharing order. In its March 2020 hearings, the family court heard
the testimony of Ann Lubbers, Oldham County Child Protective Services
investigator; Lauren Ganote, the child’s therapist at The Family and Children’s
Place; and Brittany Kaatz, social worker at The Brook. After listening to the
testimony and in fact questioning the witnesses, the family court found that the
testimony failed to support Mother’s contentions regarding abuse. In its order on
Mother’s motion to alter or amend its previous judgment, the family court
reiterated its findings that Mother was a major source of information to the
therapists and the Cabinet worker. Ms. Lubbers stated the she had interviewed the
child twice and was unable to substantiate Mother’s allegations. Ms. Ganote
admitted that Mother had led her to believe that she was the custodial parent and
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the Father was limited to visitation. In addition, Ms. Ganote testified that Mother
had brought the child for therapy in August 2019 concerning sleeping problems
and that Mother’s report of the child’s alleged homicidal ideation regarding
burning down Father’s house was not raised until December 2019, the same time
that Mother reported that Father was attempting to have increased time with the
child. Finally, Ms. Kaatz’s testimony focused upon the child’s admission during
his time at The Brook that Father had touched him in an area that his bathing suit
would cover. On cross-examination, Ms. Kaatz admitted that the bathing suit area
would be the area involved in a spanking and that she did not explore the child’s
admission further because he did not want to talk about it.
Like the family court, we find the timing of the new allegations of
abuse to be suspect, arising only after Father filed his motion to amend the time-
sharing order to provide for equal parenting time with the child. Absent a
determination that the family court’s findings of fact are clearly erroneous, or not
supported by substantial evidence, this Court must defer to the family court’s
judgment because it is in the best position to evaluate the testimony and to weigh
the evidence. Under such circumstances, an appellate court should not substitute
its own opinion for that of the family court. B.C. v. B.T., supra.
Rather than undermining the family court’s factual findings, review of
the record confirms that its judgment cannot be said to be unreasonable or unfair.
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To the contrary, our review of the record convinces us that equally shared
parenting time is in the child’s best interest.
In this regard, we cite the April 30, 2019 report of Amanda Warren,1
Social Services Clinician for the Cabinet for Health and Family Services, who
conducted an investigation following Mother’s petition for an EPO alleging sexual
abuse of the child by Father. We find the following portions of her report to be
particularly relevant to the child’s best interests:
[The child] further reported to this worker that the only
time his father has asked him to show his butt was to see
if there was a mark or injury, most recently when he was
5 years old.
In addition, this worker went over safety questions with
[the child] at both parents’ homes. [The child] denied
ever feeling unsafe or scared while at his father’s home
but did say he felt unsafe at his mother’s home because
she spanks and smacks him. When further assessing, he
reported that she has only done that one time recently
which was reported in February 2019. [The child] went
on to share that on a scale of 1-10 (with 1 being the least
safe and 10 being the most safe), he felt 8/10 safe at his
dad’s and 1/10 safe while at his mom’s. When asking
him to elaborate, he reported he didn’t know why he felt
that way.
Later that day, following the interview, this worker spoke
with [Mother] and shared that [the child] did not make
any concerning disclosures about his dad during the
interview; therefore, the Cabinet is not going to restrict
1
We note that this report was filed in the record in a sealed envelope with a handwritten
designation at the bottom stating that it was not part of the public record. There is no indication
that this report was ever ordered sealed.
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contact between the two of them. [Mother] did not
appear to be happy and admitted to asking [the child]
questions about his interview with this worker when he
got home from school, further stating that [the child] did
not tell this worker “everything.” This worker did not
provide [Mother] with details about the interview or all
the questions that were asked; however, she immediately
concluded that this worker did not ask the right
questions. [Mother’s] response suggests she was not
satisfied with the outcome of the interview and continued
to believe [the child] had been abused despite him stating
otherwise.
[Mother] contacted law enforcement about this report and
Crimes against Children’s Unit ultimately became
involved. A forensic interview was conducted with [the
child] at the Child Advocacy Center and it was observed
by a detective (Detective Baker). The detective
contacted this worker following the interview stating that
the child denied any sexual abuse; however, he did report
that his father told him to video tape himself on his
electronic device where the videos were found. This
worker notes that is not what the child initially reported,
but is what the mother initially reported the child said.
This worker also notes that the child said (during the
forensic interview) that the Judge might make it to where
he can’t go back to his dad’s again and stated that he
wants to go back to his dad’s. It is unknown where [the
child] got such information as his mother denies it came
from her.
...
This worker shared with [Mother] that [the child]
provided no information during either interview that
suggests he has been sexually abused or is at risk of
sexual abuse. [Mother] continued to be argumentative
and made the comment that her son must have to be in a
body bag before anyone does anything. [Mother’s]
response and preposterous behavior is highly concerning.
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This worker pointed out to [Mother] that it appears she
wants her son to be a victim of abuse due to not being
relieved or satisfied that he made no disclosures. She
continues to say that [the child] is not telling everyone
what he is telling her. It appears that [Mother] believes
everyone is wrong but her.
Based upon having no corroborating evidence to support
the allegations, the Cabinet is closing its case as
Unsubstantiated.
In sum, this record is replete with substantial evidence supporting the findings of
the family court. There is absolutely no basis upon which we might disturb its
judgment concerning equal parenting.
Finally, Mother complains that the family court improperly delegated
its fact-finding authority to Father’s counsel. It is undisputed that the family court
delegated the clerical task of drafting its findings and conclusions to Father’s
counsel. However, it is abundantly clear from the family court’s attentive
engagement at the hearings and its findings from the bench that the proposed
findings and conclusions reflect the stated decision of the court. In addition, in
response to Mother’s motion to alter, amend, or vacate, the family court entered
fourteen pages of additional findings and conclusions. In our view, any misgivings
Mother may have had that the court improperly delegated its fact-finding function
should have been put to rest by entry of that order. The delegation of the clerical
task of drafting findings and conclusions in this case falls squarely within the
analysis our Supreme Court provided in Bingham v. Bingham:
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Our concern here, as in Milk Marketing, [Kentucky
Milk Marketing & Anti-Monopoly Commission v. Borden
Company, 456 S.W.2d 831 (Ky. 1969)], supra, is that the
trial court does not abdicate its fact-finding and decision-
making responsibility under CR 52.01. However, the
delegation of the clerical task of drafting proposed
findings of fact and conclusions of law under the proper
circumstances does not violate the trial court’s
responsibility.
Careful scrutiny of the record reveals that the court
was thoroughly familiar with the proceedings and facts of
this case. The record indicates the trial judge prudently
examined the proposed findings and conclusions and
made several additions and corrections to reflect his
decision in the case.
628 S.W.2d 628, 629 (Ky. 1982). There was absolutely no error in the drafting of
proposed findings by Father’s counsel in this case.
Accordingly, the judgment of the Oldham Family Court is in all
respects affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Louis P. Winner James L. Theiss
Sidney M. Vieck James Daniel (“J.D.”) Theiss
Louisville, Kentucky LaGrange, Kentucky
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