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Fonda Morgan Appellant v. Daniel Getter Appellee

February 22, 2013

FONDA MORGAN APPELLANT
v.
DANIEL GETTER APPELLEE



APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE RICHARD A. WOESTE, JUDGE ACTION NO. 03-CI-00281

The opinion of the court was delivered by: Combs, Judge:

RENDERED: FEBRUARY 22, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES.

Fonda Morgan appeals the order of the Campbell Family Court which granted custody of her minor child to Daniel Getter. After our review, we affirm.

Morgan and Getter married in 1995. Two daughters, D.G. and A.G., were born during the marriage. Morgan and Getter separated in 1999; their decree of dissolution was entered in 2003. The decree provided that Morgan had sole custody of the children, and Getter was granted supervised visitation. The children visited periodically with their father throughout the years.

In 2011, D.G. reached the age of majority and moved to Florida to attend college near Getter's residence. On July 21, 2011, Getter filed a motion requesting custody of A.G. in order for her to reside with him in Florida. The court appointed a guardian ad litem (GAL) to represent A.G. After the GAL filed his report, the court conducted a hearing on November 21, 2011. Subsequently, it entered an order on December 19, 2011, which permitted A.G. to relocate to Florida to live with her father. This appeal by Morgan follows.

Our standard of review is governed by Kentucky Rule[s] of Civil Procedure (CR) 52.01. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986) (The rule applies to child custody cases); Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky. 1980) (CR 52.01 applies to domestic cases). It provides that in actions without juries, the trial court's findings of facts should not be reversed unless they were clearly erroneous. Clear error occurs only when there is not substantial evidence in the record to support the trial court's findings. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).

Morgan's first argument is that the trial court committed clear error at the hearing when it did not allow her to examine the guardian ad litem (GAL) and then denied her request to strike the GAL's report.

Morgan argues that the GAL was a professional consultant as described in Kentucky Revised Statutes (KRS) 403.290 and 403.300. KRS 403.290(2) permits the court to: seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court. (Emphasis added). Similarly, KRS 403.300(1) provides:

[i]n contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child.

The statute also allows for the investigator to be called to testify. KRS 403.300(3). Morgan contends that pursuant to these statutes, she should have been allowed to examine the GAL concerning his report. We disagree.

Although the General Assembly has not passed legislation authorizing use of a GAL's services in custody proceedings, the Supreme Court has addressed the issue. Kentucky Family Rule[s] of Practice and Procedure (FCRPP) 6(1) provides that a GAL may be appointed by order of the court:

If disputes regarding custody, shared parenting, visitation or support are properly before the court, a parent or custodian may move for, or the court may order, one or more of the following, which may be ...


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