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Baize v. Peak

Court of Appeals of Kentucky

June 30, 2017

JAMIE LYNN BAIZE APPELLANT
v.
JEFFREY ALAN PEAK APPELLEE

         APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE JAY A. WETHINGTON, JUDGE ACTION NO. 16-CI-00455

          BRIEF FOR APPELLANT: Patrick T. Flaherty Owensboro, Kentucky.

          BRIEF FOR APPELLEE: David M. Taylor Owensboro, Kentucky.

          BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES.

          OPINION

          LAMBERT, J., JUDGE

         Jamie Lynn Baize (the Mother) appeals the Daviess Circuit Court order granting primary physical custody of the parties' child to Jeffrey Alan Peak (the Father). We affirm.

         The Mother and Father began a relationship in late 2007/early 2008. The Mother became pregnant, and the parties' son (the Child) was born in September 2008. Paternity of the Father was established in April 2009, and he was ordered to pay child support.

         The parties never married, but they remained together for the most part until they separated in 2014. At that time, the issue of child support was revisited, and the Father was ordered to pay $691.00 per month.

         On May 5, 2016, the Father filed a petition for joint custody of the Child, with the Father as primary custodian. The Father alleged that the Mother moved residences frequently, which resulted in multiple changes of schools for the Child, and that the Father could provide a more stable lifestyle. The Father also requested that he be allowed to claim the Child for federal and state income tax purposes.

         The Mother filed her response the following month; she did not contest the requested award of joint custody but urged that primary custody of the Child be awarded to her. The Mother also requested that child support payments be recalculated and that the parties should share claiming the Child for income tax purposes on alternate years.

         The Daviess County Domestic Relations Commissioner held a hearing on the petition and response on July 28, 2016. In his Recommended Order entered on August 3 of that year, the Commissioner proposed that the parties be awarded joint custody of the Child with the Father as primary custodian. The Commissioner found that the Mother had moved seven times since the parties' separation and that the Child was forced to change schools four times in one academic year. The Father, on the other hand, had a stable domestic life (with plans to marry the woman with whom he was cohabitating), a full-time employment history, and a steady income. The Commissioner recommended that child support payments being made by the Father cease when primary custody was effected; he also proposed that the parties alternate years for claiming the Child on taxes (with the Mother claiming on odd years - beginning in 2015 - and the Father on even years).

         The Mother filed timely exceptions, the Father responded to the Mother's exceptions, and the Daviess Circuit Court held a hearing on September 21, 2016. The circuit court entered its Order adopting the recommendation of the Domestic Relations Commissioner on September 22, 2016, and the Mother appealed. This Court ordered the matter expedited on November 1, 2016.

         The Mother argues that the circuit court erred in adopting the Commissioner's Recommended Order. The Mother specifically complains that neither the circuit court nor the commissioner made findings pursuant to Kentucky Revised Statute (KRS) 403.270 ("Custodial issues - Best interests of child shall determine - Joint custody permitted - De facto custodian"). The pertinent parts of that statute (as argued by the Mother) are as follows:

(2) 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. The court ...

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