RENDERED: September 12, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: October 3, 1997; 2:00 p.m.
MODIFIED: October 17, 1997; 2:00 p.m.
NO. 96-CA-001118-MR
TOMMY ELLIOTT APPELLANT
V.
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE THOMAS B. MERRILL, JUDGE
CIVIL ACTION NO. 93-FD-002058
RONDA (ELLIOTT) HARTLAGE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE: BUCKINGHAM, HUDDLESTON and KNOPF, Judges.
APPELLEE
HUDDLESTON, JUDGE. The ten-year marriage between Tommy Elliott, a bank vice president, and Ronda Elliott (now Hartlage), a nurse and presently a self-employed attorney, was dissolved by Jefferson
Circuit Court in 1994. At the time of the dissolution, the parties agreed to joint custody of their two minor daughters, Katherine, then five years of age, and Claire, then three. Ronda was given primary physical custody of the two children and Tommy was given visitation at specified times.
After an initial period of cooperation following the dissolution, the relationship between Elliott and Hartlage

deteriorated. Tension between the couple became so severe that in
August 1994 Hartlage filed stalking and harassment charges against
Elliott. These charges resulted in the entry of an order requiring that all communication between the parties be either in writing or by use of an answering machine. All decisions concerning the children were made via fax and visitation exchanges took place at a local police station.
This situation proved untenable to Hartlage, so in
January 1995 she moved Jefferson Family Court, to which the case had been transferred, to grant her sole custody of the two children. Hartlage based her custody request on the parties' inability to cooperate in making decisions for their daughters and argued that joint custody was no longer feasible or in the children's best interest.
The family court heard the case anew, according to Ky.
Rev. Stat. (KRS) 403.270, as if no custody determination had been made. Mennemeyer v. Mennemeyer, Ky.App., 887 S.W.2d 555, 557
(1994). The court took testimony over four days during which it heard from the parties and various witnesses, including the children's former caregiver, Elliott's former counselor and two custody evaluators. The court also reviewed the deposition of the children's counselor.
Upon completion of proof, the court, following the rationale of Squires v. Squires, Ky., 854 S.W.2d 765 (1993), sought to determine (1) the likelihood of the parties' future cooperation and (2) the best interest of the children. After carefully
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weighing the evidence, the court awarded sole custody of the children to Hartlage and granted Elliott limited visitation rights.
On appeal, Elliott claims that the family court abused its discretion in awarding sole custody of the parties' daughters to Hartlage and in adopting a visitation schedule in disregard of a court-appointed expert's recommendation. He also asserts that the trial judge erred when he refused to recuse himself after a question arose about his impartiality. We find no merit in any of
Elliott's contentions and therefore affirm the family court's decision.
While it is true, as Elliott maintains, that a "cooperative spirit between divorced parents is not a condition precedent to [an] award of joint custody," Squires at 768, the likelihood of future cooperation between parents is highly relevant when animosity between joint custodians interferes with the best interest of the children. It is important that both parties in such a dispute show a "willingness to rationally participate in decisions affecting the upbringing of the child." Id. at 769
(emphasis supplied).
As an appellate court, we may not set aside a trial court's findings of fact unless they are clearly erroneous. Ky. R.
Civ. Proc. (CR) 52.01; Jones v. Jones, Ky.App., 577 S.W.2d 43, 46
(1979). Thus, the first issue for review is whether the family court clearly erred in finding an unwillingness on Elliott's part to rationally participate in decisions affecting the upbringing of the children. Upon reviewing the evidence adduced below, we
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conclude that the family court did not err in concluding that future cooperation between Hartlage and Elliott is unlikely.
The family court heard substantial evidence which led it to believe that Elliott could not rationally participate in a joint custody relationship with Hartlage. For instance, there was evidence that Elliott repeatedly violated a no contact order obtained by Rita Nickle, who, over Elliott's objection, was retained as the children's caregiver during work hours. His violation of this order ultimately led to Nickle's resignation.
Also, many of Elliott's fax communications to Hartlage breached another no contact order, as he often communicated personal matters that did not involve the children.
These instances are but two in a pattern of irrational and immature behavior detrimental to the children. The most obvious example that the family court cites as indicative of a lack of future cooperation is found in the motions which followed the evidentiary hearing and predated the court's custody decision. The court was called upon to decide: (1) whether Elliott should be held in contempt for violations of no contact orders pertaining to
Hartlage and the children's caregiver; (2) which parent had decision making authority, particularly with regard to the quantity of medicine to be administered to Katherine; (3) who should care for the children when both parties were at work; (4) whether Claire should attend private school; (5) the time the children should spend with Elliott during Christmas vacation; and (6) further issues regarding the children's medical care. The reliance by both
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parties on the court to make decisions regarding the care and well being of their children is certainly not indicative of future cooperation. It vividly illustrates their unwillingness to rationally participate in a mutual decision making process.
In its opinion and order, the family court expresses a justified fear that in the absence of an award of sole custody the court "will be reviewing every decision made for these children."
Cooperation, that is, "the willingness to rationally participate in decisions affecting the upbringing of the [children]," is the essence of a joint custody arrangement; constant judicial supervision is not. Squires at 769. See also Erdmann v. Clements,
Ky.App., 780 S.W.2d 635, 636 (1989). As the family court states,
"the court's role is to determine the advisability of continuing the agreement, not to exercise the necessary decision making authority [nor] act as a review board for the decisions made under the [joint custody] agreement."
The family court did not rely solely on the history of contention between the two parties in assessing the prospect for future cooperation. Expert testimony from several witnesses was also considered, testimony that left the court with the impression that the outlook for future cooperation between Elliott and
Hartlage was bleak. For example, Dr. Terry Andrew Pearson, the court-appointed custody evaluator, testified that the parties exhibited an "unwillingness to cooperate." He said that during the time he directly dealt with both Hartlage and Elliott (January to
September 1994) cooperation deteriorated rather than improved.
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David H. Cook, LCSW, who counseled Elliott from January 1994 to
June 1994, agreed with Pearson's judgment. He explained that
Elliott "had not worked through his anger" and "stopped his counseling at a time when he was in need of more counseling."
Cook's conclusion bolsters the court's judgment that future cooperation is unlikely, as unresolved animosity between the parties could affect, as it has in the past, the decision making process concerning the children.
Sherri Ferguson, LCSW, who counseled the children and conducted extensive interviews with both parents, described the inability of the parties to cooperate, stating that Elliott used the joint custody agreement to maintain contact with his former wife (contrary to the provisions of a no contact order), and often put the children in a position of negotiating on his behalf with their mother.
The court had additional reasons to believe that joint custody would not contribute to the children's mental and physical health. Sherri Ferguson, the children's counselor for seventeen months, testified that Katherine and Claire were experiencing anxiety and tension attributable to the conflict between Elliott and Hartlage. Both children, she said, felt in the middle of the dispute, and Claire manifested this anxiety through episodes of bedwetting, refusal to go to the bathroom alone, and clinging to
Hartlage after returning from visitation with Elliott.
Finally, the family court observed the parties during the course of various judicial proceedings. The parties' demeanor,
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their numerous motions, their violations of standing court orders, and their general disagreeability toward one another left the court with the distinct impression that future rational cooperative decision making was unlikely. The family court clearly had before it substantial evidence to support its conclusion that Elliott and
Hartlage could not cooperate in the manner necessary to continue joint custody.
The second prong in the Squires analysis requires the court to determine, using a best interest standard, whether custody should be joint or sole. While the family court leaves no doubt in its opinion that Elliott is a good father and loves his children, his lapses of judgment led the court to conclude that it is in the children's best interest to be in Hartlage's sole custody.
In determining which custody arrangement would be in the children's best interest, the Court must, as the court did here, make an individualized determination of each party's suitability to be the children's custodian. According to KRS 403.270(1)(c) through (f), the court must consider, among other things: (1) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests; (2) the child's adjustment to his home, school and community; (3) the mental and physical health of all individuals involved; and (4) evidence of domestic violence.
In applying the statutory criteria to the facts of this case, the court explained its conclusion that the best interests of the children will be served by making Hartlage sole custodian:
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She was the children's primary caregiver during their infancy but this factor is not controlling. Of more importance is that she seems to possess a better insight and understanding of the parenting function, brings a more even temperament and attitude in dealing with the children's needs, tends to put their interests first and displays more empathy to the children's emotional needs in dealing with the divorce and separation from their father. Her medical experience in the nursing field gives her a better background for parenting a child with special needs [Katherine] and she seems more attuned to both children's needs at this stage of their lives
The family court doubted whether Elliott could be trusted to make medical decisions for the children. Elliott's unilateral determination to withhold Katherine's recommended dosage of Ritalin without consulting her physicians raises serious questions as to his judgment. As the family court notes, this type of decision making presents "a danger in fact" to the child that cannot be risked. "The court does not have to wait until the harm occurs, but is mandated to take action to prevent potential harm. Krug v.
Krug, Ky., 647 S.W.2d 790 [793] (1983)."
By granting sole custody to Hartlage the court insured that the children will have the continuity of their accustomed caregiver, decisions will be made for them quickly, and they will find sanctuary from their parents' ongoing conflict. Katherine and
Claire will still reap the benefits of having two parents in their
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life, but will no longer suffer the consequences that inevitably flow from their parents' inability to cooperate.
Elliott also complains that the family court erred in adopting a temporary visitation schedule as permanent in disregard of the court-appointed expert's recommendations. Elliott cites the testimony of Dr. Pearson who favored joint custody and who stated that equal access to each parent was a right of the children.
While KRS 403.290(2) provides that a court "may seek the advice of professional personnel . . . ," no court is bound to follow that advice. In discussing the statute, this Court has said that "[t]he statute . . . is permissive, not mandatory, and the professional's conclusions from such tests are merely expert testimony, or evidence to be considered by the courts, and not dictates." Chalupa v. Chalupa, Ky.App., 830 S.W.2d 391 (1992).
Thus, even accepting Elliott's interpretation of Pearson's testimony, that it applied directly to the visitation schedule, the family court did not err in adopting the temporary visitation schedule as the permanent schedule.
On January 11, 1996, Elliott filed a motion under KRS
26A.015(2)(a) and (e) seeking to have the trial judge recuse himself on the ground that the judge's impartiality might clearly be questioned. The basis for Elliott's recusal motion was an affidavit contained in a motion filed by Hartlage on October 26,
1995. Hartlage attached to her motion (which requested authority to make all health care decisions for Katherine) an affidavit
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referencing a telephone conversation with Elliott. During this conversation Elliott allegedly said that he and his counsel would
"take care of the judge through the Judicial Review Committee," and that the judge would "no longer have a job." Elliott alleges that the trial judge, having read this statement in Hartlage's motion and accompanying affidavit, was "placed in a position, where quite certainly, his impartiality might reasonably be questioned as a result of the actions of [Hartlage]." The court responded that the statement had been ignored because the Judicial Retirement and
Removal Commission has no power to review judges' decisions, even erroneous ones. Elliott points to absolutely nothing in the record to support his recusal motion other than his dissatisfaction with the court's decisions.
Not only does Elliott's motion lack merit, it fails on other grounds. When Elliott discovered the supposedly biasing affidavit in October 1995, several recusal options were available.
First, he could have promptly filed a KRS 26A.015 motion with an accompanying affidavit asking the family court judge to recuse himself. Second, he could have filed a KRS 26A.020 recusal motion directly with the Chief Justice of Kentucky and could have sought an immediate ruling. Third, he could have filed both motions. See
Nichols v. Commonwealth, Ky., 839 S.W.2d 263, 265 (1992).
Elliott filed only the KRS 26A.015 motion before the family court, and in doing so did not attach a signed affidavit stating his reasons for the requested recusal. Hartlage complains that filing such a motion without the accompanying affidavit makes
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it immediately deficient. However, as Elliott's alleged statement was already in record, an additional affidavit would have been redundant.
The real problem is that Elliott's motion for recusal was not filed until three months after Hartlage's affidavit containing his alleged comments was filed. During this time both parties appeared before the same judge on various motions and at the four day custody hearing. When a party is aware of an issue and fails to request appropriate relief on a timely basis, the matter will not be considered plain error for reversal on appeal. West v.
Commonwealth, Ky., 780 S.W.2d 600, 602 (1989). Furthermore, if a party has knowledge of facts that would disqualify a judge, he must make known these facts at the outset and not wait until the judge has made a ruling against him before moving for disqualification.
Mills v. Mills, Ky., 429 S.W.2d 852, 853 (1968).
The order from which this appeal is prosecuted is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Larry B. Franklin
David B. Gray
FRANKLIN & HANCE, P.S.C.
Louisville, Kentucky
BRIEF FOR APPELLEE:
Ronda M. Hartlage, pro se
Louisville, Kentucky
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