RENDERED: MARCH 19, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0362-MR

CORA ANN REDMOND AND JERRY WAYNE

REDMOND APPELLANTS

APPEAL FROM BELL CIRCUIT COURT

v. HONORABLE ROBERT V. COSTANZO, JUDGE

ACTION NO. 16-CI-00381

ASHLEY WITT FLANARY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Cora Ann Redmon and Jerry Wayne Redmon 

(“Appellants”) appeal from four orders of the Bell Circuit Court denying their 
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motion to modify custody and granting in part a motion to modify visitation.1 

They argue that the circuit court erred in failing to make Appellants the primary 

residential custodians of child “N.R.”2 In the alternative, they request that the 

matter be remanded for findings as to whether the relocation of Ashley Witt 

Flanary (“Appellee”), her alleged negligence, and other factors warrant a 

modification of primary residential custody. For the reasons stated below, we find 

no error and affirm the orders on appeal.

FACTS AND PROCEDURAL HISTORY

In the interest of judicial economy, we adopt the factual and 

procedural recitation rendered by a panel of this Court in the previous and related 

appeal of Redmond v. Flanary, No. 2019-CA-000070-ME, 2020 WL 1074786 (Ky. 

App. Mar. 6, 2020). The panel stated:

 L.R. and N.R. were born to Kendra and Brian 

Redmond during their marriage. L.R. was born in 2002; 

N.R. was born in 2014. Kendra and Brian also had a 

third child, K.R., a girl, who was born in 2012.

Tragically, on November 7, 2016, Kendra, Brian, and 

K.R. were killed in an automobile accident.

 A week after the accident, Cora and Jerry Redmond, 

the children’s paternal grandparents (“Grandparents”) 

filed a petition seeking custody of L.R. and N.R. in Bell 

 

1 Order Overruling Motion to Alter, Amend or Vacate entered February 13, 2020; final Order 

entered January 29, 2020; and interlocutory Orders entered October 10, 2019, and February 4, 

2019.

2 We will use the initials of the minor children.
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Circuit Court. Therein, Grandparents alleged that they 

“had care, custody and control of [N.R. and L.R.] for 

approximately two (2) years and [met] the requirements 

for being considered de facto custodians.” They further 

alleged that the children were placed with them by the 

Department for Community Based Services (“DCBS”). 

Grandparents sought an order granting them immediate 

temporary emergency custody of both children, and 

thereafter an award of permanent custody of the children.

 On November 18, 2016, before the trial court had the 

opportunity to rule on Grandparents’ petition, the 

children’s maternal aunt, Ashley Witt Flanary (“Aunt”), 

filed an objection to Grandparents’ petition along with 

her own petition seeking custody of the boys. Aunt 

disputed Grandparents’ allegations regarding de

facto custodianship. Aunt noted that Kendra and Brian 

divorced the year before their deaths, and that the 

dissolution decree entered of record on October 14, 2015, 

awarded sole custody of the children to Kendra. Aunt 

alleged that it would be in the best interests of both L.R. 

and N.R. for her to be awarded permanent sole custody; 

she requested the trial court to order the Cabinet for 

Health and Family Services (“Cabinet”) to commence an 

investigation and make a recommendation regarding 

temporary emergency custody of the Children.

 On December 9, 2016, after interviewing L.R., the 

trial court awarded temporary joint custody of L.R. and 

N.R. to both Grandparents and Aunt. Grandparents were 

designated as the temporary primary residential 

custodians of the older child, L.R., and Aunt was 

designated as the temporary primary residential custodian 

of the younger child, N.R. Aunt was given timesharing 

with L.R., and Grandparents were given timesharing with 

N.R.

 After several delays, the trial court held an evidentiary 

hearing on March 29, 2017. Several witnesses testified at 

the hearing. The evidence established that Grandmother 
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took the children to the doctor and to church, and that 

Kendra had authorized Grandmother to seek medical care 

for them. Grandmother testified that Kendra thought of 

her as her preferred babysitter while she worked, and 

frequently left the children in her care. L.R. told the trial 

court that he had lived with Grandparents for much of his 

life, and that he did not want to live anywhere else. L.R. 

further explained that he did not like visiting Aunt; it 

made him nervous and sick. Aunt testified about her 

ability to care for the children, including the fact that she 

had a child of her own that was about the same age as 

N.R.

 On May 2, 2017, the trial court entered its first 

findings of fact, conclusions of law, and order of custody 

and visitation. The court found that although 

Grandparents provided caregiving and financial support, 

they had not established themselves as primary 

caregivers and thus did not qualify as de facto custodians.

By the same token, the trial court found that although 

Kendra and N.R. lived with Aunt for a period of time 

following the dissolution, Kendra did not abdicate her 

parental role. At most, Aunt parented alongside Kendra, 

which is not sufficient to establish de facto custodianship.

 Ultimately, the trial court concluded that the best 

interest of the children would be for the temporary 

custody and timesharing arrangement that was already in 

place to be made permanent. Grandparents and Aunt 

were granted joint legal custody of the Children.

Grandparents were designated as L.R.’s primary 

residential custodian and Aunt was designated as N.R.’s 

primary residential custodian. The parties were to adhere 

to a timesharing schedule designed to allow the brothers 

to spend time with each other.

 Grandparents filed a motion to modify on May 4, 

2017. Therein, they argued that L.R. should not be 

forced into spending time with Aunt via a timesharing 

schedule. Grandparents attached medical records to their 
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motion indicating that a physician had diagnosed L.R. 

with anxiety caused by his parents’ deaths and the 

ensuing events regarding his custody. On May 23, 2017, 

the trial court entered an order temporarily suspending 

L.R.’s timesharing with Aunt with the matter to be 

revisited during a hearing on July 13, 2017.

 Prior to the hearing, Aunt filed an emergency motion 

seeking to suspend Grandparents’ timesharing with N.R.

Aunt alleged that N.R. exhibited behavioral outbursts that 

lasted at least a couple of days after spending time with 

Grandparents; that Grandparents took N.R. to the lake 

knowing he had been diagnosed with a double ear 

infection and strep throat; and that Grandparents allowed 

N.R. to associate with unsavory individuals and witness 

inappropriate behaviors during their frequent lake trips.

 On August 2, 2017, “seeking to put an end [to the 

conflict] and to try to bring closure to the parties,” the 

trial court ordered both children to participate in 

psychiatric evaluations after which the provider was to 

make a recommendation to the court regarding custody 

and timesharing of both children. The trial court then 

suspended all timesharing until further order. 

Unfortunately, the trial court’s order did not resolve the 

parties’ conflict, even temporarily.

 On January 24, 2018, Grandparents filed a motion 

seeking sole custody of L.R. and N.R. and for visitation 

between the brothers to commence immediately. In 

support of their motion, Grandparents filed an affidavit 

from L.R.’s treating psychologist, Dr. Sandra Nantz.

L.R.’s psychologist recommended against L.R. visiting 

with Aunt at this time; however, she did believe it was 

imperative for L.R. to see his younger brother, N.R. To 

this end, Dr. Nantz averred:

[L.R.] lost his mother, father and younger 

sister in a tragic vehicular/tractor-trailer 

accident. Then to be split from his younger 
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brother by the placement in a separate home 

and then denied contact with [N.R.] is 

compounding the bereavement, 

unconscionable and not based upon any 

generally accepted principles of child 

rearing, child psychology, coping with death 

of a parent or parents or death of a sibling.

This estrangement is worse than another 

death to [L.R.] He is unable to heal or 

obtain closure. My recommendation is 

immediate reunification of the boys for 

visitation on a consistent basis at neutral 

locations. At this point in time, I do not 

recommend [L.R.] having visitation at the 

residence of [Aunt]. In addition, I 

recommend the adoption of certain rules of 

decorum during visitation, i.e., no discussion 

of the case, no discussion of other parties or 

their families, no disparaging remarks etc.

 In response to the timesharing/visitation portion of 

Grandparents’ motion, the trial court entered an “agreed 

temporary order” restarting timesharing. The order set 

forth a schedule for the parties to exercise timesharing 

with the child not in their residential custodianship and 

required all timesharing to be supervised. The order did 

not modify custody, meaning Grandparents and Aunt 

continued to share joint legal custody of the boys with 

Grandparents acting as the primary residential custodian 

of L.R. and Aunt acting as the primary residential 

custodian of N.R. Subsequently, in an effort to resolve 

the outstanding motions regarding custody, the trial court 

ordered Dr. David Feinberg to conduct a custodial 

evaluation of all involved parties (Grandparents, Aunt, 

L.R., and N.R.) and to report his findings and 

recommendations to the Court.

 Before Dr. Feinberg could complete the evaluations 

and recommendation, the parties became embroiled in 

another dispute. On August 10, 2018, Grandparents filed 
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a motion seeking custody of both boys and to hold Aunt 

in contempt for missing two timesharing visits. On 

September 14, 2018, Aunt responded by filing her own 

motion styled “notice of withholding and motion to 

suspend visitation.” In support of her motion, Aunt cited 

N.R.’s behavioral issues after visits with Grandparents 

and pointed out that after N.R. returned from his most 

recent visit she noticed contusions and N.R. complained 

of body aches and other physical ailments resulting in an 

ongoing investigation by the Cabinet.

 On October 19, 2018, the trial court took up the 

motions as related to N.R.’s temporary timesharing. The 

trial court denied Aunt’s motion to suspend timesharing 

with Grandparents and ordered the missed visits to be 

made up with additional time. All other motions were 

placed in abeyance pending conclusion of the Cabinet’s 

investigation. On November 6, 2018, Grandparents filed

a report from the Cabinet indicating that it could not 

substantiate any abuse of N.R. by Grandparents.

 Dr. Feinberg’s report was completed at the end of 

October 2018 and delivered to the Court. Dr. Feinberg 

evaluated L.R., N.R., Grandparents, Aunt, and Aunt’s 

husband. Dr. Feinberg’s work with the parties was 

extensive, and his report is very detailed. He noted 

shortcomings with regard to all the adults. These 

shortcomings included mental health concerns, griefrelated issues, and intellectual challenges. By the same 

token, he recognized positive parenting attributes in all 

the adults, including love and affection for the children 

and a desire to attend to their needs. He noted that 

Grandparents had been proactive in helping L.R. receive 

additional tutoring at school, and that Aunt had been 

proactive in recognizing and seeking intervention for 

some development delays in N.R. Ultimately, Dr. 

Feinberg recommended that Grandparents have custody 

of L.R., and Aunt and her husband have custody of N.R.

Dr. Feinberg recommended against forcing L.R. to visit 

with Aunt and her husband; however, he did believe it 
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was important for the brothers to see one another and 

indicated that this could be accomplished through N.R. 

visiting with Grandparents every other weekend.

 After receiving Dr. Feinberg’s report, the trial court 

held a final hearing on November 7, 2018. The purpose 

of the hearing was to resolve all pending motions dating 

back to Grandparents’ May 4, 2017 motion to modify. 

As part of the hearing, Grandparents called Dr. Nantz to 

testify. Dr. Nantz disagreed with Dr. Feinberg’s 

recommendation regarding the children residing in 

separate homes for most of the time. In her professional 

opinion, children should always stay together unless the 

situation warrants separation, such as in cases of physical 

or sexual abuse.

 On December 20, 2018, the trial court entered its 

detailed findings of fact, conclusions of law and custody 

decree. After reviewing and summarizing all the 

evidence and testimony, the trial court concluded as 

follows:

Due to the tragic and untimely events which 

[led] to the death of not only [L.R. and 

N.R.’s] parents, but [also] their sibling, 

[K.R.], this Court FINDS that it is clearly in 

the children’s best interest that [they] 

maintain significant and sustained contact 

and communication with the remaining 

family members of [their parents]. Both 

[Grandparents] and [Aunt] each in their own 

respective way have much to offer [L.R. and 

N.R.] as they navigate to adulthood without

the benefit of their parents. And what an 

injustice and a tragedy will result if 

[Grandparents] and [Aunt] cannot set aside 

their self-serving and selfish interests to 

protect the best interest of these children.

Both [Grandparents] and [Aunt] are “blood” 

relation of these “orphaned children.” The 
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record will establish that the parties, both 

[Grandparents] and [Aunt], have resisted, if 

not completely dismissed, any attempts to 

work together. A sad reality in that these 

children are entitled to better especially in 

light of the horrific events which have 

placed them the subject of this action.

This Court on May 2, 2017, entered its 

Findings of Fact, Conclusions of Law, and 

Order of Custody and Visitation following a 

lengthy hearing. [Grandparents] on May 4, 

2017 filed their Motion to Modify said 

Findings and the [Aunt] on May 19, 2017, 

filed her Objection to [Grandparents’] 

Motion to Modify the Court’s Findings . . . .

The Court FINDS that many of the issues 

and conflicts are the making of 

[Grandparents and Aunt], not the children. 

[L.R.] is well-integrated into 

[Grandparents’] house and family. This 

integration began prior to the deaths of the 

children’s parents. The record established 

that at the time of the parents’ deaths, the 

mother [Kendra], had previously been 

granted sole custody of both [L.R. and 

N.R.]. Kendra and [N.R.] were 

living/staying with her sister, [Aunt]. The 

record further established that [L.R.] spent 

the majority of his life in and at the home of 

[Grandparents], [who provided] for most if 

not all of [L.R.’s] needs. The Court FINDS 

that [L.R.] is well-integrated into 

[Grandparents’] house and family and that 

[N.R.] is well-integrated into [Aunt’s] house 

and family. The Court can find no cause to 

disturb its earlier Order of Custody. The 

Court remains persuaded, under the 
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authority of KRS[3] 403.270, 403.340,

403.350, and all other applicable law, that 

the best interests of [L.R. and N.R.], are best 

served by denying [Grandparents’] Motion 

for Sole Custody, or Equal Joint Custody

and IT IS SO ORDERED. The Court does 

FIND sufficient cause to modify the 

[timesharing] schedule previously set forth 

in its May 2, 2017 Findings of Fact, 

Conclusions of Law, and Order of Custody. 

[L.R. and N.R.] are brothers. They are 

entitled to have the opportunity to see one 

another as much as possible. It is the 

responsibility of and should be the desire of 

the parties to take any and all steps 

necessary to facilitate same. However, both 

[Grandparents and Aunt] have made what 

should be an easy task nearly impossible.

Their obvious and open [disdain] for one 

another appears at times to be more 

important than what is in the best interest of 

these children. The Court FINDS that the 

best interest of [L.R. and N.R.] shall be best 

served by the Visitation Schedule and 

Timesharing Rules attached and 

incorporated hereto and IT IS SO 

ORDERED. Child Support is not awarded 

to either [Grandparents or Aunt] and IT IS 

SO ORDERED.

. . . .

1. [Grandparents] are granted joint custody 

of [L.R. and N.R.]

2. [Aunt] is granted joint custody of [L.R. 

and N.R.]

 

3 Kentucky Revised Statutes.
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3. [Grandparents] shall be designated as 

primary residential custodian of [L.R.]

4. [Aunt] shall be designated as primary 

residential custodian of [N.R.]

5. [Grandparents and Aunt] shall each 

receive [timesharing] as set forth in the 

Visitation Schedule and Timesharing Rules 

herein attached.

6. [Grandparents and Aunt] are not to 

interfere with the visitation time between the 

minor children.

(R. 728-30). The accompanying timesharing schedule 

provided Aunt timesharing with L.R. on the first and 

third weekends of each month as follows: two hours on 

Friday evening, three hours on Saturday afternoon, and 

two hours on Sunday evening. Grandparents were 

provided with timesharing of N.R. in gradually 

increasing phases working up to timesharing every other 

weekend from Friday afternoon until Sunday evening and 

weekly for three hours on Thursday evenings. The 

schedule was set to maximize the brothers’ time with 

each other. 

Id. at *1-*5 (footnote omitted).

The panel of this Court affirmed the decision of the Bell Circuit 

Court. Thereafter, the parties filed competing motions to modify the underlying 

decision. Appellants moved to: 1) enforce an alleged settlement agreement 

between the parties concerning time-sharing; 2) make a ruling on serious 

endangerment in relation to testimony at an October 2, 2019 hearing that N.R. 

walked away from Appellee’s residence on two occasions; and 3) modify custody 
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or time-sharing based upon Appellee relocating her home about 100 miles away to 

take a new job. Appellee moved to modify time-sharing based on her relocation.

A hearing on the motions was conducted on December 5, 2019, after 

which the circuit court rendered an order on January 29, 2020, denying Appellants’ 

motions to modify custody. The parties’ respective motions to modify timesharing were granted in part, and denied in part. 

Appellants then moved to alter, amend, or vacate the January 29, 2020 

order. In support of the motion, they again argued that N.R. was seriously 

endangered by Appellee’s poor supervision which allowed him to walk away on 

two occasions from Appellee’s home during a period when N.R. was in Appellee’s 

care. On February 13, 2020, the circuit court determined in relevant part that the 

two instances where N.R. left Appellee’s home unattended were investigated by 

those charged with such duties, resulting in the investigative agency making no 

finding of serious endangerment, neglect, or abuse. The court denied the motion to 

alter, amend, or vacate, and this appeal followed.

ARGUMENTS AND ANALYSIS

Appellants first argue that the Bell Circuit Court committed reversible 

error in failing to designate them as the primary residential custodians of N.R. after 

he walked down a busy road twice while in Appellee’s custody. Appellants direct 

our attention to the Bell Circuit Court’s orders entered on October 10, 2019,
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December 20, 2018, and February 13, 2020, which denied a change in custody on 

this issue.

4

 Appellants take issue with the circuit court’s determination that 

Appellee’s failure to properly supervise N.R. did not constitute serious 

endangerment sufficient to justify a change in custody. Appellants assert that it is 

in the best interest of N.R. that he live primarily with his grandparents who have 

been together for 33 years in a stable home, where nothing bad has happened to 

him, and where his only sibling lives. The focus of their argument is their claim 

that the Bell Circuit Court erred in finding no “serious endangerment” per KRS 

403.340(3)(d) to support a change in custody. Appellants argue that N.R.’s act of 

leaving Appellee’s home unsupervised on two occasions constitutes serious 

endangerment. They seek an opinion reversing the circuit court’s orders on this 

issue with instructions to award Appellants primary residential custody of N.R.

A trial court may not modify a prior custody decree unless it finds a 

change in circumstances of the child or his custodian, and that modification is in 

the best interests of the child. KRS 403.340(3). In determining whether a change 

has occurred and modification is in the child’s best interests, the court shall 

 

4 There is some question as to whether the October 10, 2019 order is interlocutory, or final and 

appealable. The order adjudicated all matters then before the circuit court, but does not contain 

language that it is final and appealable. “A final and appealable judgment is a final order 

adjudicating all of the rights of the parties in an action or proceeding . . . .” Kentucky Rules of 

Civil Procedure (“CR”) 54.01. We find as moot any question as to whether the October 10, 2019 

order is final and appealable, as it was subsumed in final and appealable orders entered on 

January 29, 2020, and February 13, 2020.
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consider: a) whether the custodian agrees to modification; b) the child’s 

integration into the family of the petitioner; c) the factors set out in KRS 

403.270(2) to determine the best interests of the child; d) whether the child’s 

present environment seriously endangers his physical, mental, moral, or emotional 

health; e) whether the likely harm of a change is outweighed by the advantages of a 

change; and f) whether the custodian has placed the child with a de facto custodian. 

KRS 403.340(3). In determining whether the child’s present environment may 

seriously endanger his physical, mental, moral or emotional health, the court 

considers the interrelationship of the child with the parties, the mental and physical 

health of the parties, any substantial failure to observe provisions of the custody 

decree affecting the child, and any domestic violence and abuse. KRS 403.340(4). 

Appellants’ argument centers on KRS 403.340(3)(d), to wit, whether 

N.R.’s act of leaving Appellee’s house on two occasions, without supervision,

evinces a present environment that seriously endangers his physical, mental, moral,

or emotional health. In considering this issue, the circuit court relied on supportive 

affidavits previously filed with the court as required by KRS 403.340(2), as well as 

the written and oral arguments of the parties. While acknowledging that it was 

clearly inappropriate for N.R. to walk away from Appellee’s residence, the circuit 

court relied on the Cabinet’s investigation of the matter which resulted in no 

finding of dependency, neglect, or abuse. In addition, the court expressly 
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considered the other statutory factors including N.R.’s interaction with the parties,

and their physical and mental health. 

On appeal of a custody determination, the test is not whether the facts 

could have supported a different outcome, but whether the trial court abused its 

discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974). CR 52.01 applies to 

child custody proceedings, Griffith v. Allen, 472 S.W.2d 253, 254 (Ky. 1971), and

provides that the court’s findings shall not be set aside unless they are clearly 

erroneous, with due regard given to the trial court to judge the credibility of the 

witnesses. 

Having closely examined the record and the law, we find no abuse of 

discretion. When Appellants became aware that N.R. had walked out of

Appellee’s house on two occasions without supervision, the Cabinet investigated 

the matter, did not return a finding of dependency, abuse, or neglect, and closed its 

investigation. This finding, taken alone, forms a sufficient basis for the circuit 

court’s conclusion that N.R. is not seriously endangered. Further, the court 

expressly considered the Cabinet’s action in conjunction with the other statutory 

factors including N.R.’s interaction with the parties, and their physical and mental 

health. The record supports the Bell Circuit Court’s conclusion on this issue, and 

we find no error.
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Appellants also argue that the circuit court erred in failing to designate 

them as the primary residential custodians of N.R. or, alternatively, to modify 

time-sharing after Appellee relocated. They assert that the circuit court failed to 

make any findings that the relocation was in N.R.’s best interests and argue that 

Appellee did not meet her burden of proving that the relocation was in N.R.’s best 

interests. Appellants assert that N.R.’s best interests are not furthered by the 

relocation and that he would be better off living with his grandparents and brother 

rather than his aunt, uncle, and cousin in a new town. Accordingly, they argue that 

Appellee’s relocation supports an award of primary residential custody of N.R. in 

favor of Appellants.

Again, the question on appeal is not whether the facts could have 

supported a different outcome, but whether the trial court abused its discretion. 

Eviston, supra. In considering N.R.’s best interests, the circuit court noted that the 

amount of time-sharing remained unaffected after Appellee’s relocation.5 While it 

did not expressly consider N.R.’s best interests as to either Appellee’s desire to 

relocate nor Appellants’ motion to modify primary custody, the substance of the 

court’s analysis was that N.R. would continue to receive the same amount of time 

with Appellants after the relocation as he did before it. The implication, though 

 

5 The circuit court modified the time-sharing arrangement to accommodate Appellee’s 

relocation, but the amount of time each party received with N.R. was not affected.
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not expressly stated, is that N.R.’s best interests were not affected by the 

relocation. We do not conclude that the Bell Circuit Court abused its discretion on 

this issue, and accordingly find no error.

Lastly, and in the alternative, Appellants seek a remand for additional 

findings. “It goes without saying that errors to be considered for appellate 

review must be precisely preserved and identified in the lower court.” Skaggs v.

Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986). As Appellants do 

not direct our attention to any request for additional findings from the circuit court, 

and were not so denied, this issue is not ripe for appellate review. Even if this 

issue is properly before us, the record reasonably supports the circuit court’s 

conclusions that N.R. is not seriously endangered in Appellee’s custody, and that 

Appellee’s relocation did not adversely affect N.R. because the amount of timesharing with his grandparents remained unchanged. We find no basis for 

remanding for additional findings.

CONCLUSION

The Bell Circuit Court did not abuse its discretion in concluding that 

N.R. was not seriously endangered in Appellee’s custody, nor in finding that N.R. 

was largely unaffected by Appellee’s relocation since the amount of time he spent 

with his grandparents remained the same. Accordingly, we find no error and 

affirm the orders on appeal.
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ALL CONCUR.

BRIEFS FOR APPELLANTS:

Marcia Smith

David Smith

Corbin, Kentucky

BRIEF FOR APPELLEE:

C. Bishop Johnson

Pineville, Kentucky