Legal Memorandum
maya99
5cases.docx32 S.W.3d 109
Court of Appeals of Kentucky.
Stephanie Kay GOSSETT, Appellant,
v.
Donald Steven GOSSETT, Appellee.
No. 1998–CA–001720–MR.
Oct. 20, 2000.
Synopsis
Ex-wife appealed from an order of the Barren Circuit Court, Benjamin L. Dickinson, J., which concluded that ex-husband was entitled to a reduction of his child support obligation as a matter of law. The Court of Appeals, Johnson, J., held that whether it was appropriate, for child support purposes, to impute additional income to ex-husband already working a full 40 hour week was not an issue of law, but, rather, was an issue of fact.
Vacated and remanded.
West Headnotes (9) Collapse West Headnotes
Whether a child support obligor is voluntarily underemployed is a factual question for the trial court to resolve.
25 Cases that cite this headnote
76EChild Support
76EVProceedings
76EV(C)Hearing
76Ek212Questions of law or fact
(Formerly 285k3.3(6))
Findings of a trial court cannot be disturbed by appellate court if they are supported by substantial evidence. Rules Civ.Proc., Rule 52.01.
12 Cases that cite this headnote
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3460In general
(Formerly 30k1010.1(6))
Purpose of the statutes and the guidelines relating to child support is to secure the support needed by the children commensurate with the ability of the parents to meet those needs.
4 Cases that cite this headnote
76EChild Support
76EIIn General
76Ek2Constitutional and Statutory Provisions
76Ek5Purpose
(Formerly 285k3.1(1))
76EChild Support
76EIVAmount and Incidents of Award
76Ek146Construction, operation, and effect of guidelines
(Formerly 285k3.3(7))
Whether it was appropriate, for child support modification purposes, to impute additional income to ex-husband already working a full 40 hour week based on his history of overtime and working two jobs was not an issue of law, but, rather, was an issue of fact.
3 Cases that cite this headnote
76EChild Support
76EVIModification
76EVI(C)Proceedings
76Ek340Hearing
(Formerly 134k309.6)
Parent may not voluntarily impoverish himself in order to avoid his child support obligation.
3 Cases that cite this headnote
76EChild Support
76EIIIFactors Considered
76EIII(B)Factors Relating to Custodians and Obligors
76Ek76Misconduct
76Ek79Squandering resources
(Formerly 285k3.1(5))
Even some involuntary changes in circumstances are not sufficient grounds for modification of parent's child support obligation if the change is the result of parent's voluntary action. KRS 402.213.
76EChild Support
76EVIModification
76EVI(A)In General
76Ek234Materiality of change
(Formerly 285k3.3(8))
Fact that ex-husband's reduction in hours was voluntary did not, as a matter of law, preclude entitlement to reduction in his child support obligation, where he continued to work full-time after reduction in hours.
12 Cases that cite this headnote
76EChild Support
76EVIModification
76EVI(B)Particular Factors and Grounds
76EVI(B)2Factors Relating to Obligors
76Ek257Income
76Ek259Voluntary unemployment or underemployment
(Formerly 134k309.2(3))
“Change in circumstances” does not include voluntary changes made for the primary purpose to reduce the support owed for purposes of statute providing that child support decree may be modified only upon a showing of a material change in circumstances that is substantial and continuing. KRS 403.213(1).
76EChild Support
76EVIModification
76EVI(A)In General
76Ek234Materiality of change
(Formerly 285k3.3(8))
Courts should not-and do not-view the freedom to deprive family members of child support because of personal animosity or miserliness as one that deserves consideration or protection.
76EChild Support
76EIIIFactors Considered
76EIII(B)Factors Relating to Custodians and Obligors
76Ek70In general
(Formerly 285k3.1(5))
Attorneys and Law Firms
*110 William Thomas Klapheke, III Glasgow, KY, for Appellant.
Robert M. Alexander Glasgow, KY, for Appellee.
Before COMBS, JOHNSON and KNOPF, Judges.
OPINION
JOHNSON, Judge.
Stephanie Kay Gossett has appealed from an order of the Barren Circuit Court entered on June 12, 1998, which concluded that Donald Steven Gossett is entitled to a reduction of his child support obligation as a matter of law. We vacate the order as entered and remand with directions that the trial court resolve the factual issues bearing on the issue of Donald's motion for a reduction in child support.
The Gossetts were married in 1984. The union produced two children: Whitney was born November 17, 1987; Derek was born January 13, 1995. The parties separated in late 1995, and their marriage was dissolved on August 12, 1996. The parties agreed on the resolution of all the issues arising from their twelve-year marital relationship with the exception of the appropriate amount of Donald's child support obligation. For a considerable period prior to the parties' separation, Donald worked full-time at R.R. Donnelley & Sons and he also worked part-time at a second job for Barren–Metcalfe Ambulance Service. Donald would not agree to pay child support calculated by using both of his incomes, and as a result the issue of the amount of his child support obligation was litigated before the domestic relations commissioner. On August 23, 1996, an order was entered setting child support at $200.13 per week ($867.24 monthly), which amount reflected Donald's total monthly income from both jobs of $3,555.
In April 1998, Donald moved for a reduction of his child support obligation. At the hearing conducted on May 11, 1998, Donald testified that his income had decreased over 40% since the 1996 hearing, to $2,121 per month. He attributed the decrease in his income to the fact that he had voluntarily quit his job with the ambulance service and because he was not working as much overtime as before at his primary job. He justified quitting his part-time job in order to have more time with his family, although he acknowledged, and the record clearly demonstrates, that he was not having regular visitation with his children.
*111 In its order, the trial court found and concluded as follows:
1. The parties were divorced on or about August 13, 1996 in Barren Circuit Court. The parties have two children under the age of eighteen. At the time of the divorce [Donald] was employed at R.R. Donnelley & Sons, Co., and was working all the overtime that he could and was also working on a part-time basis with the Barren Metcalfe Ambulance Service and was also doing some other work of a self-employment nature.
2. [Donald's] income at the present time is $2,121.43 per month and his only source of income is through his employment at R.R. Donnelley & Sons, Co. This is full-time employment and [Donald] could not reasonably find work with greater income potential considering his education, work experience, and the community in which he lives. The Court finds that [Donald] is not required by law to maintain more than one job or to work to the exclusion of any other activities of life.
3. [Donald's] income is $2,121.43 per month. [Stephanie's] income is $1,278.71 per month. Statutory guidelines provide that child support should be set at $588.38 per month....
...
2. KRS1 403.212 provides “income” is actual gross income of a parent if employed to full capacity. This Court concludes that a full-time job at R.R. Donnelley and Sons, Co., constitutes full employment. The statutes do not require a person to work at a second job.
In this appeal, Stephanie argues that considering Donald's history of working at two jobs and all the overtime he could get to support his family, the trial court erred in failing to determine that he was voluntarily underemployed as contemplated by the statutes relating to child support for purposes of addressing his motion for modification. She further insists that the trial court abused its discretion in reducing Donald's support obligation where the evidence is uncontradicted that Donald willfully and voluntarily reduced his ability to earn income.
Donald argues that the trial court was “able to judge for itself [his] credibility and sincerity [ ], as well as the reasonableness of his actions, and found that [he] was not voluntarily underemployed.” Elsewhere in his brief, Donald states that whether he is voluntarily underemployed is a “factual determination” which the trial court resolved in his favor.
1 2We agree that whether a child support obligor is voluntarily underemployed is a factual question for the trial court to resolve. Certainly, the findings of a trial court cannot be disturbed by this Court if they are supported by substantial evidence.2 However, as we view the order from which this appeal has been taken, the trial court did not make a factual determination, but rather held, as a matter of law, that a child support obligor could not be required to work at two jobs and, for that reason alone, refused to impute to Donald any income other than his salary of R.R. Donnelley.
The statutory provisions relevant to this appeal provide as follows:
“Income” means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.3
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income *112 shall be determined based upon employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.4
The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.5
3 4The purpose of the statutes and the guidelines relating to child support is to secure the support needed by the children commensurate with the ability of the parents to meet those needs. “Both our statutory scheme and our case law demand that whenever possible the children of a marriage should be supported in such a way as to maintain the standard of living they would have enjoyed had the marriage not been dissolved.”6 KRS 403.212
mandates that earnings and income from all sources be considered when setting child support. While we agree that it is generally not appropriate to impute additional income to a parent already working a full 40 hour week, we disagree with the trial court's resolution of the issue as one of law. Rather, we believe that the issue is one of fact as reflected in the following reasoning employed by the Virginia Court of Appeals when confronted with the issue:
[A]s a general rule a court should not impute to a person income from more than one job. However, this is not a rule to be applied in all cases as a matter of law. Depending upon the circumstances peculiar to each case, particularly where there is a history of a spouse having had two jobs, the trial court may find it appropriate to consider imputing to a spouse income from more than one job. The court should consider the previous history of employment, the occupational qualifications, the extent to which the parent may be under employed in the primary job, the health of the individual, the needs of the family, the rigors of the primary job and the second job, and all other circumstances.7
5 6 7 Cochran, supra concerned the initial setting of child support. In the case sub judice, Donald was seeking a modification based on his voluntary reduction in income. It is incumbent upon the trial court, before addressing the issue in the context of the above factors, to make findings with respect to Donald's entitlement to a modification in the first instance. Stephanie argues that a support obligor who voluntarily reduces his income is not entitled to seek modification. Certainly a parent may not “voluntarily impoverish himself in order to avoid his support obligation.”8 Indeed, even some involuntary changes in circumstances are not sufficient grounds for modification if the change is the result of the obligor's voluntary action. *113 9 However, in the case sub judice, the trial court found that Donald continues to work full-time despite his voluntary reduction in hours. Thus, we are unwilling to hold, as Stephanie suggests, that Donald is not entitled to a reduction in his child support as a matter of law.
8 9The trial court could find from the evidence that Donald quit his second job and reduced his overtime primarily to reduce his child support obligation. A “change in circumstances” contemplated by KRS 403.213(1) does not include voluntary changes made for the primary purpose to reduce the support owed. “Courts should not-and do not-view the freedom to deprive family members of support because of personal animosity or miserliness as one that deserves consideration or protection.”10 Thus, on remand the trial court should make explicit findings concerning the circumstances surrounding Donald's reduction in his income. On remand, the trial court should determine whether Donald is entitled to a modification by using factors similar to those outlined in Cochran, supra. 11
Accordingly, the judgment is vacated and the matter is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
All Citations
32 S.W.3d 109
Footnotes
1
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure 52.01.
KRS 403.213(1) 6 Stewart v. Madera, Ky.App., 744 S.W.2d 437, 439 (1988).
7 Cochran v. Cochran, 14 Va.App. 827, 419 S.E.2d 419, (1992).
Commonwealth, ex. rel. Marshall v. Marshall, Ky.App., 15 S.W.3d 396, 401 (2000). See also Downey v. Rogers, Ky.App., 847 S.W.2d 63, 65 (1993) (support obligor's inability both to meet his own needs and pay child support because of consumer debt is not a basis for a reduction in child support).
Marshall, supra (incarcerated support obligor held to be voluntarily unemployed despite inability to obtain employment).
The test is similar to the one set forth in Barbarine v. Barbarine, Ky.App., 925 S.W.2d 831 (1996), which concerns a motion to reduce maintenance predicated upon the early retirement of the obligor.
266 S.W.3d 759
Supreme Court of Kentucky.
Christopher M. PENNINGTON, Appellant,
v.
Heather M. MARCUM (f/k/a Miles), Appellee.
No. 2006–SC–000642–DG.
Oct. 23, 2008.As Modified Oct. 24, 2008.
Synopsis
Background: Father brought motion to modify custody or in alternative to expand visitation/timesharing, in response to mother's attempt to relocate with child to Virginia. The Circuit Court, Boyd County, Marc I. Rosen, J., overruled motion, and father appealed. The Court of Appeals affirmed.
Holdings: On review, the Supreme Court, Noble, J., held that:
1 father's motion to modify custody in which he sought to prevent mother's relocation with child was governed by best interests of child standard, overruling Fenwick v. Fenwick, 114 S.W.3d 767;
2 trial court had discretion to accept, reject or modify any of domestic relations commissioner's findings of fact and recommendations; and
3 trial court had no obligation to conduct second evidentiary hearing following receipt of domestic relations commissioner's report and recommendation on father's motion.
Affirmed.
Cunningham, J., filed dissenting opinion in which Venters, J., joined.
Venters, J., filed dissenting opinion.
West Headnotes (20) Collapse West Headnotes
Natural parents have the superior right to custody above all others, if they are fit for the charge and have not given up the right.
76DChild Custody
76DIIGrounds and Factors in General
76DII(B)Factors Relating to Parties Seeking Custody
76Dk42Right of biological parent as to third persons in general
Under joint custody, both parents have responsibility for and authority over their children at all times; equal time residing with each parent is not required, but a flexible division of physical custody of the children is necessary.
17 Cases that cite this headnote
76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangements
76DChild Custody
76DIVJoint Custody
76Dk151Control by and Authority of Parties
76Dk152In general
A significant and unique aspect of full joint custody is that both parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and participate equally in the child's upbringing.
16 Cases that cite this headnote
76DChild Custody
76DIVJoint Custody
76Dk127Ability of parents to cooperate
76DChild Custody
76DIVJoint Custody
76Dk151Control by and Authority of Parties
76Dk152In general
Prior to entry of a decree, a court may enter temporary custody orders and may determine timesharing/visitation, which may be modified whenever it is in the child's best interests to do so; any such decisions are “pendente lite,” “interlocutory” or “non-final”. KRS 403.280, 403.320.
16 Cases that cite this headnote
76DChild Custody
76DVIIParticular Status or Relationship
76DVII(D)Termination of Parents' Marriage
76Dk321Pending Proceedings
76Dk323Power and authority of court
76DChild Custody
76DVIIParticular Status or Relationship
76DVII(D)Termination of Parents' Marriage
76Dk321Pending Proceedings
76Dk325Visitation
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk578Particular status or relationship
When the court is making its final and appealable custody decree, it must do so based on the “best interests of the child” standard. KRS 403.270.
7 Cases that cite this headnote
76DChild Custody
76DIIGrounds and Factors in General
76DII(C)Factors Relating to Child
76Dk76Welfare and best interest of child
76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk902Decisions reviewable
When a final custody decree has been entered, and a relocation motion arises within two years of the decree, any post-decree determination made by the court is a modification, either of custody or timesharing/visitation; if a change in custody is sought within two years of the decree, then the court must apply statutory standard requiring either serious endangerment or abandonment to a de facto custodian, but visitation can be modified upon proper showing, at any time, having no two-year restriction, and, after two years from the date of the custody decree, the standard reverts to review of the best interests of the child. KRS 403.340.
29 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
If a parent opposing relocation files a motion to modify custody within two years of the date of the custody decree, then the moving party must establish that the move or other reason seriously endangers the child or that the child has been abandoned to a de facto custodian in order to modify custody; if the standard is met, and custody is changed, then that parent as sole custodian could prevent relocation of the child, but if the only interest of the opposing party is to object to relocating the child, but not to alter joint decision-making, then he is seeking to have the existing visitation/timesharing arrangement changed, and need only establish that it is in the child's best interests not to relocate. KRS 403.320(3).
26 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
As a matter of statutory construction, the more specific statute controls.
361Statutes
361IIIConstruction
361III(G)Other Law, Construction with Reference to
361k1210Other Statutes
361k1217General and specific statutes
(Formerly 361k223.4)
If a motion for change of custody challenging a parent relocation with the child is made more than two years after the date of the custody decree, the court must evaluate custody based on the best interests of the child, and determine whether a change of custody from joint to sole should occur on that basis; if so, relocation of the child will be prevented, but if not, the question converts itself to whether the change in visitation/timesharing, either due to allowing relocation or denying it, is in the best interest of the child. KRS 403.320, 403.340.
39 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk576Joint custody
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
The change of custody motion or modification of visitation/timesharing must be decided in the sound discretion of the trial court. KRS 403.320, 403.340.
46 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(A)In General
76Dk551Discretion
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
Since neither the “serious endangerment” or “best interests” standards with respect to child custody is defined, it is left to the sound discretion of the trial court whether the party opposing relocation has met his burden on either a modification of custody or visitation/timesharing. KRS 403.320, 403.340.
21 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk568Parent or custodian's relocation of home
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. KRS 403.320, 403.340.
18 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify visitation/timesharing, but if that parent believes that the relocation will make a joint custody arrangement unworkable, then the motion should be made for a change of custody from joint to sole custody. KRS 403.320, 403.340.
66 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
When one parent indicates an interest in relocating with the child, the parent opposed need not wait, but could file his own motion to modify custody or for change of visitation/timesharing. KRS 403.320, 403.340.
11 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
If neither party wishes to change the nature of the custody of the child, and the court determines that it is in the best interest of the child to relocate with one parent, the other parent's visitation/timesharing would be modified to an accommodation as reasonable as possible given the distance of the relocation and the means of the parties. KRS 403.320.
22 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
Post-judgment motion to modify custody brought by father in opposition to mother's relocation with child to Virginia, or in alternative to give him extended visitation or timesharing with child, was essentially request for modification of visitation/timesharing, and thus, was governed by best interests of child standard. KRS 403.320.
15 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk577Visitation
The trial court has the right to reevaluate the evidence presented before a domestic relations commissioner in child custody modification proceeding and reach a differing conclusion from the commissioner.
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
The trial commissioner acts only to further judicial economy by assisting the trial court; the commissioner's report is a recommendation and is not binding. Rules Civ.Proc., Rule 53.06(2).
2 Cases that cite this headnote
105Court Commissioners
105k3Powers, functions, and liabilities in general
105Court Commissioners
105k5Procedure
Trial court had discretion to accept, reject or modify any of domestic relations commissioner's findings of fact and recommendations on father's motion to modify custody.
2 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
Trial court had no obligation to conduct second evidentiary hearing following receipt of domestic relations commissioner's report and recommendation on father's motion to modify custody.
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)3Hearing and Determination
76Dk652Reference
Attorneys and Law Firms
*761 Rhonda M. Copley Ashland, KY, Counsel for Appellant.
Martha Alice Rosenberg, Lexington, KY, Counsel for Appellee.
Opinion
Opinion of the Court by Justice NOBLE.
The Appellant, Christopher M. Pennington, appeals the order from the Boyd Circuit Court dated October 31, 2005. The Appellant argues that the trial court abused its discretion by setting forth findings of fact contrary to the recommendation of the domestic relations commissioner without conducting an evidentiary hearing or considering the testimony presented. Additionally, the Appellant argues that the Boyd Circuit Court erred when it overruled a motion to modify custody pursuant to the best interests of the child and submits that relocation with a minor child is sufficient to trigger a modification hearing pursuant to KRS 403.340. After reviewing the record, the applicable statutes, and relevant case law, this Court finds no abuse of discretion by the trial *762 court, there being substantial evidence to support the trial court's findings in favor of the Appellee, Heather M. Marcum. The Court of Appeals is affirmed for the reasons stated herein.
I. Background
On May 17, 1999, Mikayla L. Pennington was born to the Appellant, Christopher M. Pennington, and the Appellee, Heather M. Miles. The couple was never married but resided together for approximately one year after the birth of Mikayla. By Agreed Order entered February 7, 2001, which was the final custody decree, the parties received joint custody of Mikayla with the Appellee designated as having “joint physical custody (residential parent)” and the Appellant receiving “liberal visitation” of at least two days per week.
In 2002, the Appellee married Jeremy Marcum and moved to West Virginia. The Appellant remained in Boyd County where he married and was employed at Kings Daughters Medical Center though he continued to spend his agreed-upon time with Mikayla. Various motions were filed concerning visitation and support from time to time. However, it was not until after the Appellee and her husband subsequently relocated to Appomattox, Virginia (approximately six hours from the Appellant's home), that the Appellant filed a motion asking the court to “award custody of the minor child” to him, on or about July 28, 2004, more than two years after entry of the custody decree. However, in his supporting affidavit he asked that he be granted “primary custody” or in the alternative, that the court “modify visitation” to give him extended contact “of at least every weekend.” No modification motion had been filed when Appellee initially moved to West Virginia.
On referral from Boyd Circuit Court, the domestic relations commissioner held an evidentiary hearing and recommended that the parties continue to have joint custody, but changed “primary physical custody” to Appellant, with Appellee to have “secondary physical custody with liberal visitation.” The commissioner emphasized that the Appellant was actively involved in his daughter's life, he and his wife arranged their work schedules so that one adult would be at home with Mikayla and the couple's other children at all times, that the Appellee provided no advance notice to the Appellant of her move to Appomattox, Virginia, and that the Appellee generally did not consult with the Appellant when making decisions regarding Mikayla.
The Appellee filed exceptions to the report and the circuit judge conducted a hearing on August 22, 2005. On October 31, 2005, the court sustained the Appellee's exception to the award of primary physical custody to the Appellant. The Boyd Circuit Court specifically noted in its October 31, 2005 Order that it was “not inclined to end a 6–year relationship with a parent merely because the parent remarries and moves to a different location.” Additionally, the Boyd Circuit Court found Mikayla to be well-adjusted in her new environment, including school, and involved with several extracurricular activities. Most importantly, the court ruled “that it would be in the best interest of the minor child for the parties to continue to have joint custody, but for the Respondent [mother] to have primary physical custody and the Petitioner [father] to have secondary custody with liberal visitation as the parties have been exercising.”
This appeal followed. The Court of Appeals found there was substantial evidence to support the Boyd Circuit Court's finding in favor of the Appellee and affirmed the custody order. We now affirm, but for the reasons stated herein. Further, because *763 questions regarding relocation and its effect on custody continue to be problematic, the Court will address the nature of child custody, the effects of relocations, and when and how motions relating to relocation after a custody award should be brought, in an effort to establish clear precedent.
II. Analysis
A. General Discussion
1At the heart of all relationships between parents and children is the legal concept of custody. Custody of children is traditionally described as the care, control and maintenance of the children, Black's Law Dictionary 725 (8th ed.2004), with natural parents having the superior right to custody above all others, if they are fit for the charge and have not given up the right. Welsh v. Young, 240 S.W.2d 584, 586 (Ky.1951). Historically, the guardian by nature of the child was the father, and on his death, the mother. For children born out-of-wedlock, the guardian was the mother. Black's Law Dictionary 725 (8th ed.2004). Today, both parents are recognized as having the right to custody, KRS 403.270; putative fathers may seek and obtain custody, KRS 405.051; and de facto custodians have the same right to seek custody as the father and mother, KRS 403.270. While there are a larger number of children born out-of-wedlock today than ever before, the majority of children are still born to a married couple, consisting of a mother and a father, with custody questions arising in relation to a divorce.1
As a consequence of the fault-based divorce scheme, sole custody was the rule for most of the 20th century. As a marital couple, both parents enjoyed full parenting rights and responsibilities; however, the dissolution of the marital bond not only altered the relationship of the parties but also altered the relationship between the parties and any children they might share. The “innocent” spouse who obtained divorce on appropriate grounds (adultery, insanity, indignities, imprisonment, bigamy, cruel treatment, or desertion) was generally deemed the fit parent. The sole custodian possessed full control and singular decision-making responsibility for his or her children to the exclusion of the other parent who received a limited period of access to the children through visitation, a term which denoted the right to see the children, but not to control them legally. During this time, custodial preference under the law evolved from father first, then to the mother first under the tender years presumption, and finally to equal consideration of both parents seeking sole custody. See generally Mary Kate Kearney, The New Paradigm in Custody Law: Looking at the Parents with a Loving Eye, 28 Ariz. State L.J. 543, 546–50 (1996).
In 1972, the Kentucky General Assembly enacted KRS 403.110 et seq. following a national trend to permit no-fault divorces. With the passage of the no-fault divorce statutes, the Commonwealth's role changed from restricting access to divorce to permitting either spouse to unilaterally sever the marital bond. Still, the goal of the Commonwealth remained unchanged—to preserve family relationships. An explicitly stated purpose of the chapter is to promote the integrity of marriage and safeguard family relationships. KRS 403.110(1). At its inception, the no-fault *764 divorce scheme showcased the state's emerging role as maintaining the indissolubility of parenthood after the dissolution of the marital relationship by permitting joint custody of the couple's children.
During the 1970s and 1980s, American society was making rapid changes. Women of child-bearing and -rearing age were increasingly joining the civilian labor force, so that by 1980, over half of that group were working outside the home.2 In part because the “stay-at-home Mom” was an increasingly less conventional parenting role, fathers began taking more active roles in the day-to-day lives of their children. Consequently, at the dissolution of the marriage both parties began seeking a custody arrangement that allowed them to pursue livelihoods to maintain households and provide for their families, but also permitted them to function as available, responsible decision-makers for their children.
In 1992, the Kentucky Court of Appeals decided Chalupa v. Chalupa, 830 S.W.2d 391 (Ky.App.1992), which included an open endorsement of joint custody over sole custody. The Court of Appeals concluded that it was in the best interests of children for both their parents to be regularly involved in their lives. The court recognized the dynamic nature of family law and stated:
Joint custody is also a natural progression of our no fault divorce concept, recognizing that both parties may be fit parents but not compatible to be married to each other. A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.
Id. at 393 (citation omitted). Though the Kentucky Supreme Court declined to adopt the Chalupa preference for joint custody over sole custody in Squires v. Squires, 854 S.W.2d 765, 769 (Ky.1993), and KRS 403.270 mandates that custodial determinations are to be made individually in light of the child's best interests, joint custody has emerged as the most prevalent custodial arrangement.
2 3Joint custody as a legal concept has several defining characteristics. Both parents have responsibility for and authority over their children at all times. Equal time residing with each parent is not required, but a flexible division of physical custody of the children is necessary. A significant and unique aspect of full joint custody is that both parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and participate equally in the child's upbringing.
However, since Kentucky became a no-fault divorce state and joint custody was deemed an arrangement on equal footing with sole custody, custodial arrangements have become increasingly amorphous. Though it is often stated that there are two categories of custody, sole custody and joint custody, there is in practice a subset of joint custody that combines the concept of joint custody with some of the patterns of sole custody—often called “shared custody.” In shared custody, both parents have legal custody that is subject to some limitations delineated by agreement or court order. Unlike full joint custody, time sharing is not necessarily flexible and frequently mirrors a typical sole custody *765 pattern where the child may live with one parent during the week and reside with the other on alternate weekends. The weekend parent does not have “visitation,” a sole-custody term which is frequently misused in this context, but rather has “time-sharing,” as he or she is also a legal custodian. However, in practice, the terms visitation and timesharing are used interchangeably. Additionally, one parent may be designated the “primary residential parent,” a term that is commonly used to denote that the child primarily lives in one parent's home and identifies it as his home versus “Dad's/Mom's house.” This concept is frequently misnamed “primary residential custody.”
A less frequently seen category found in practice is a subset of sole custody—split custody. In this arrangement, each parent has sole custody and decision-making authority while the child is in residence with him or her, and only visitation when the child is in residence with the other parent. The term “primary residential custody” may be more appropriate here, depending on how much time the child spends in residence with each parent.
Shared and split custody have developed as common-sense approaches to the realities of modern day life, even though they are not explicitly expressed in our statutes. Better technical ability to communicate, employment mobility, a given parent's ability to meet certain obligations and other such factors lead to a need for an approach to parenting after divorce that is flexible and can be customized to the needs of each family involved with the children. These broad approaches recognize that every family is unique, and that it is generally in the best interests of the child and parents to maximize contact with both parents. The “designer” approach of these concepts asks the question, “What is best for this family? ” This diversity, however, makes it difficult to apply standardized provisions of the law, especially when the existing statutes do not fully address all the permutations that can occur.
B. Modification of Custody or Visitation on Parental Relocation
4 5At the outset, it should be noted that the effect of relocation by a parent with the child on custody and visitation must be viewed as either pre-or post-decree. KRS 403.340, the modification of custody statute, speaks to modification of a custody decree. By definition, a decree is a final judgment, Black's Law Dictionary 440 (8th ed.2004), denoted in Kentucky law as being “final or appealable.” CR 54.01. Prior to entry of a decree, a court may enter temporary custody orders pursuant to KRS 403.280, and may determine timesharing/visitation pursuant to KRS 403.320, which may be modified whenever it is in the child's best interests to do so. Any such decisions are “pendente lite,” “interlocutory” or “non-final.” As we have determined in a case that was argued with this one and is being rendered at the same time, Frances v. Frances, 266 S.W.3d 754, (Ky.2008), when the court is making its final and appealable custody decree, it must do so based on KRS 403.270, the best interests standard.
6However, when a final custody decree has been entered, as in this case, and a relocation motion arises, any post-decree determination made by the court is a modification, either of custody or timesharing/visitation. If a change in custody is sought, KRS 403.340governs. If it is only timesharing/visitation for which modification is sought, then KRS 403.320 either applies directly or may be construed to do so.
This pre- or post-decree designation is important when modification of custody is *766 sought, because of the standard the trial court must apply when a change is sought within two years of issuance of the custody decree, the serious endangerment or abandonment to a de facto custodian standard.
Prior to 1972, trial courts in Kentucky could modify custody decrees upon proof that the conditions under which the original decree was entered were changed. See Skidmore v. Skidmore, 261 Ky. 327, 87 S.W.2d 631, 634 (1935); Williams v. Williams, 290 S.W.2d 788, 789 (Ky.1956); Hatfield v. Derossett, 339 S.W.2d 631, 632–33 (Ky.1960); Ward v. Ward, 407 S.W.2d 709, 710 (Ky.1966). Though the “change of conditions” standard still plays a role in the consideration of custody modifications, modification must now be evaluated under the terms of KRS 403.340, originally enacted in 1972, which contains a two-year limitation period on modification of custody from the date of the custody decree.3 In 1973, this Court applied the statute when it first held that a custody decree cannot be modified within the two-year limit unless one of the two that a custody decree cannot be modified within the two-year limit unless one of the two statutory exceptions, serious endangerment or abandonment to a de facto custodian, is established. *767 Day v. Day, 490 S.W.2d 483 (Ky. 1973). This was reaffirmed in 1976 when the Court held that a trial court's sua sponte review and modification of a custody order within the two year period was in error. Chandler v. Chandler, 535 S.W.2d 71 (Ky. 1976). Visitation, on the other hand, can be modified upon proper showing, at any time, having no two-year restriction pursuant to KRS 403.320.4 And, after two years from the date of the custody decree, the standard reverts to review of the best interests of the child, either under KRS 403.270 or KRS 403.30(3).
Since Kentucky accepted joint custody as a custodial arrangement equally tenable and commensurate with sole custody, and given that very individualized time-sharing arrangements have developed under shared joint custody or split sole custody, whether a custodian's relocation with the minor child changes the inherent nature of the custody the parties have or merely affects timesharing/visitation has become a frequent and pertinent question. This issue has been commonly approached in two ways. Litigants have characterized the motion as one to modify visitation pursuant to KRS 403.320 or one to modify custody pursuant to KRS 403.340.
The obvious problem is that parties often ask for one thing when they are actually seeking the other, due to the unique nature of their shared (joint) custody or split (sole) custody. Courts have struggled ever since the concept of joint custody emerged with what part physical or residential possession of the child plays in each type of custody.5 However, a modification of custody means more than who has physical possession of the child. Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree. This is true whether the parent has sole or joint custody: decision-making is either vested in one parent or in both, and how often the child's physical residence changes or the amount of time spent with each parent does not change this.
This is perhaps too legalistic in a reality-based world. To most people, having custody means having possession of the child. Parties have addressed this understanding by applying terms such as “primary residence” or “residential parent,” in their agreements. This type of thinking is often inconsistent with the legal meaning of joint custody, wherein both parents are equal legal custodians, but is nonetheless prevalent.
*768 In 2003, this Court did an extensive review of custody and relocation issues in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), a case that arose when the mother and father, who had temporary joint custody and nearly equal timesharing, disputed whether the mother could relocate with their two daughters a distance of some thirty-five miles to Jefferson County, Kentucky. The mother filed a motion requesting the court's approval to relocate with the children. The father objected, claiming that the move was contrary to the children's best interests, and asked that if the mother did move, he be named “primary residential custodian.” In a pendente lite order, the court found that it was not in the children's best interests to relocate, continued temporary joint custody, and left the mother designated “primary caregiver,” with the option of relinquishing that designation if she decided to relocate. This order was later made the final custody decree on December 8, 1997.
Fenwick has an extensive, learned discussion on the confusion that surrounds relocation, custody and timesharing/visitation. However, much of what this Court discussed in Fenwick must henceforth be disregarded, because this Court applied the wrong statute. Like the Frances case also rendered today, the relocation in Fenwick was raised prior to entry of the final custody decree, and consequently KRS 403.270, with its best interests standard should have been applied by this Court as it was by the trial court. Instead, the Fenwick Court focused its relocation determination on who was the primary residential parent, which alone is not the proper basis for a modification of custody.
Rather, had the relocation motion been made post-decree, as it was in this case, the focus should have been on whether an actual change in custody was being sought. Fenwick directs the parent opposing relocation of the children to file a motion for change of custody pursuant to KRS 403.340, yet subsequently acknowledges that “the essence of joint custody is shared decision-making,” and that “the joint custody itself will remain unaffected by [the mother's] relocation because [the father] will still be able to continue sharing substantial time with his children through personal contact and other means....” 114 S.W.3d at 789. If the latter is correct, and it is, then clearly a parent opposed to relocation, but not seeking a change in joint custody, does not need to make a motion for a change of custody, but rather a motion for modification of timesharing.
In a sole custody arrangement, KRS 403.320 speaks clearly to visitation granted to a “parent not granted custody” and modification of that visitation based on the best interests of the child. Modification of the visitation schedule does not alter the sole nature of the custody. While there is no statute that specifically addresses modification of timesharing in a joint custody setting, it is reasonable to infer that modifying it does not alter the nature of joint custody. Also, since the nature of the custody does not change, the trial court is not bound by the statutory requirements that must be met for a change of custody, but can modify timesharing based on the best interests of the child as is done in modifying visitation.
Thus, the first question on a custody modification or relocation motion is, “Is the motion actually seeking modification of custody or visitation/timesharing?” In Fenwick, the mother's motion to relocate ended up resulting in a modification of timesharing due to relocation. To oppose it, the father, who did not want the child to relocate, was directed by this Court to ask for a modification of custody. However, this would necessitate that he ask for a change from joint custody to sole custody, *769 vested in him. What the father in Fenwick really wanted was to become the primary residential parent, which would be a modification of timesharing under joint custody. He was asking the court to consider what is in the best interests of the child as to where and to what extent the child spends time, not that he become the sole decision-maker.
However, when the party opposing relocation is truly seeking a change in custody, from joint to sole (or vice-versa), the second pertinent question regarding modification of custody is, “When was the custody decree issued?” This will determine the standard of review for modification.
7 8If a parent opposing relocation files a motion to modify custody within two years of the date of the custody decree, then the moving party must establish that the move or other reason seriously endangers the child or that the child has been abandoned to a de facto custodian in order to modify custody. If the standard is met, and custody is changed, then that parent as sole custodian could prevent relocation of the child. But, if the only interest of the opposing party is to object to relocating the child, but not to alter joint decision-making, then he is seeking to have the existing visitation/timesharing arrangement changed, and need only establish that it is in the child's best interests not to relocate, which would thereby change the existing visitation/timesharing situation. While this may appear to undercut the purpose of the two-year limitation in KRS 403.340 on modification of the custody decree, when only visitation/timesharing modification is sought, the specific language of KRS 403.320(3) controls, which allows modification of visitation/timesharing “whenever modification would serve the best interests of the child,” and specifically directs that a court “shall not restrict a parent's visitation rights” unless allowing visitation would seriously endanger the child. As a matter of statutory construction, the more specific statute controls.
9If a motion for change of custody is made more than two years after the date of the custody decree, the court must then evaluate custody based on the best interests of the child, and determine whether a change of custody from joint to sole should occur on that basis. If so, relocation of the child will be prevented. If not, the question converts itself to whether the change in visitation/timesharing, either due to allowing relocation or denying it, is in the best interest of the child. Obviously, if a parent who has been the primary residential parent relocates and the child does not, the primary residential parent will change.
10 11Every case will present its own unique facts, and the change of custody motion or modification of visitation/timesharing must be decided in the sound discretion of the trial court. This is true whether the child lives with one parent in an arrangement like a sole custody arrangement or whether there is equal timesharing or something in between. Since “serious endangerment” or “best interests” is not defined, it is left to the sound discretion of the trial court whether the party opposing relocation has met his burden on either a modification of custody or visitation/timesharing.
12 13The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify visitation/timesharing under KRS 403.320. If that parent believes that the relocation will make a joint custody arrangement unworkable, then the motion *770 should be made for a change of custody from joint to sole under KRS 403.340.
14Likewise, when one parent indicates an interest in relocating with the child, the parent opposed need not wait, but could file his own motion. A parent who has equal or nearly equal visitation/timesharing and who wants to prevent a child's relocation with the other parent, but does not want to change custody from joint to sole, could bring a motion for a change of visitation/timesharing under KRS 403.320. This could result in a designation of that parent as primary residential parent if the child is not allowed to relocate because it is not in his best interests to do so. If that same parent wants to change custody from joint to sole custody to him, he must bring the motion for a change of custody and proceed under KRS 403.340.
15Both parents may need to bring motions if their wishes differ. For example, if the residential mother makes a motion to modify visitation/timesharing to allow her to relocate with the child, the father may need to make a motion for modification of visitation/timesharing to name him as the residential parent, which would prevent relocation of the child. Or, the father could make a motion to be named sole custodian, and if he could meet his statutory burden, there would be a change of custody which would also defeat the relocation. If neither party wishes to change the nature of the custody, and the court determines that it is in the best interest of the child to relocate with the mother, the father's visitation/timesharing would be modified to an accommodation as reasonable as possible given the distance of the relocation and the means of the parties.
To the extent that this Court's prior decision in Fenwick and its progeny is inconsistent with this Opinion, it is overruled.
C. Application to this Case
16In this case, the Appellant brought his motion for “custody of the minor child” or, in the alternative, to modify visitation to give him extended visitation/timesharing of “at least every weekend,” on or about July 28, 2004, more than two years after the Order granting joint custody on February 7, 2001. If Appellant was actually seeking a change of custody from joint to sole, KRS 403.340(2) which imposes a two-year limitation, does not apply, and the court was free to look at a custody modification based on the best interests of the child. Likewise, if the Appellant was actually seeking only a modification of visitation/timesharing, the standard the court had to apply is what is in the best interests of the child. The trial court specifically stated that its findings were based on “the best interests” of Mikayla, specifically citing her relationship with her mother's new family, a new sibling she had been with for some time, her adjustment to her present home and school, the fact that Appellee was acknowledged to be a good mother, and that the parties had been able to work out visitation/timesharing for a significant period of time. The court determined that the best interest of the child required retaining the current custody status. This effectively denied Appellant's motion for a change of custody. Despite mixing terminology of sole and joint custody, and awarding an unknown status of “secondary custody” to Appellant, the trial court actually modified visitation/timesharing by allowing the relocation which inevitably altered the when and how of Appellant's time with his child, but did not alter the nature of the parents' joint custody. This effectively denied Appellant's alternative motion for “visitation” every weekend. It *771 is clear that the trial court had an ample factual basis for its decision and did not abuse its discretion.
It was appropriate for the Appellant to file the alternative motions, as he objected to the changes relocation would bring to his current visitation/timesharing arrangement with his child, and presumably he also wished to be named sole custodian. However, Appellee could have also brought a motion to modify the current visitation/timesharing arrangement due to the changes brought about by her new relocation with the child. Both parties have an interest, and it is appropriate for either to seek a modification of visitation/timesharing or custody. Nonetheless, the issues could be resolved on the Appellant's motion alone, and the trial court appropriately did so.
17As to whether the trial court erred in relying on the hearing conducted by the domestic relations commissioner and the argument of counsel, the circuit court has complete discretion regarding the use of a commissioner's report. Haley v. Haley, 573 S.W.2d 354, 356 (Ky.App.1978). Further, the trial court has the right to reevaluate the evidence and reach a differing conclusion from the commissioner. Basham v. Wilkins, 851 S.W.2d 491 (Ky.App.1993). In Eiland v. Ferrell, 937 S.W.2d 713 (Ky.1997), this Court conclusively stated that the trial court has broad discretion in actions relying on commissioner's reports, constrained only by the pertinent Rules of Civil Procedure.
18Additionally, pursuant to CR 53.06(2), “[t]he court after hearing may adopt the report, may modify it, or may reject it in whole or in part, or may receive further evidence, or may recommit it with instructions.” The trial commissioner acts only to further judicial economy by assisting the trial court; the commissioner's report is a recommendation and is not binding. It is the trial court itself that makes findings of fact, either by adopting those recommended by the commissioner or by acting anew. When actions are tried upon facts without a jury, the trial court's findings will not be set aside unless they are clearly erroneous and, therefore, require the support of sufficient evidence. CR 52.01.
19 20The Appellant asserts that the findings of the trial court included in the October 31, 2005 order are in direct contradiction to the commissioner's findings. That is clearly within the trial court's discretion. The distinctions between the findings of the commissioner and the Boyd Circuit Court are more appropriately characterized as varying constructions of the same testimony. The commissioner and the Boyd Circuit Court came to similar, yet dissimilarly worded factual findings agreeing that Mikayla was born to the parties out-of-wedlock, the Appellant was an active participant in Mikayla's life but she primarily resided with the Appellee, and that Mikayla was well-adjusted in her new home in Appomattox, Virginia. It is the court's legal conclusions that are dramatically different from those of the commissioner, which is certainly within the court's authority. As to the claim that the court was required to conduct a second evidentiary hearing, it is clear that it was not required to do so. The Boyd Circuit Court appropriately reviewed the report of the Domestic Relations Commissioner, allowed arguments by counsel and gave thoughtful consideration to both. There is no clear factual error and no abuse of discretion.
III. Conclusion
The trial court did not make clearly erroneous findings of fact, nor did it abuse its sound discretion in relying on the Domestic *772 Relations Commissioner's report and the arguments of counsel. Further, the trial court correctly determined the best interests of the child on the alternative modification motion made more than two years after the date of the custody order. The Court of Appeals is affirmed.
ABRAMSON, SCHRODER and SCOTT, JJ., concur.
CUNNINGHAM, J., dissents by separate opinion in which VENTERS, J., joins.
VENTERS, J., dissents by separate opinion.
MINTON, C.J., not sitting.
Dissenting Opinion by Justice CUNNINGHAM.
I respectfully dissent from the result of the majority while at the same time applaud much of what Justice Noble says in her opinion. Her narrative history is much needed in bringing to light a growing concern in child custody and visitation issues in our ever increasingly mobile society. I also agree with her analysis of the proper standard of proof in these kinds of cases.
However, I part ways with the majority because of the lack of analysis given by the trial court to the issue of relocating a child who has long had a close relationship with both her mother and her father. This deficiency is in large part caused by our own failure to provide guidance to trial judges in addressing this daunting problem. Therefore, I would vacate and remand for further proceedings consistent with this dissenting opinion.
We can no longer afford the simplistic approach to arbitrarily allow parents to relocate to distant places simply because the child is doing fine in the primary physical custody of that parent. There is a tremendous amount of evidence which connects frequent residential moves of children of separated parents to major problems in child adjustment. The effects upon children being frequently relocated include lower academic performance and higher rates of problems with depression, conduct, and peer relationships.1 We are not talking about moves by intact families where children usually cope and sometimes even thrive. Relocation by a divorced parent where the child is torn away from the mother or father is uniquely different.
In 1998, the prestigious American Academy of Matrimonial Lawyers took on the difficult problem of parental relocation and proposed a Model Relocation Act. The Act itself lists several factors that the trial court should consider before allowing the relocation of a child.2 While many states have dealt with the relocation issue through legislation, others have given—as we should do here—guideposts to trial courts through their highest courts.3
Of course, each jurisdiction is unique, but there are common factors running through all. The following are but a few of these common factors: (1) the age of the child; (2) the purpose of the move; (3) *773 the distance of the move; (4) the worthiness of the move for the child when balanced with any negative effects; (5) the improvement of the child's standard of living; (6) the physical hardship of travel for the child on visitation with the non-custodial parent; (7) the presence or absence of extended family for the child at the new location versus the existing location; (8) the motivation of the noncustodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?); (9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child; (10) the possibility and plausibility of the non-custodial parent following the child; and (11) the number of times the custodial parent has moved.4
I search in vain to find attention given by the trial court to any of these key elements in its custody determination.
It is significant that this is a “joint custody” case and Justice Noble ably describes how that arrangement places more responsibility for child rearing on both parents than in a “sole custody” situation. Here, the non-custodial parent is legally entitled to be involved in all aspects of the child's life, which is independent of the time actually spent in the child's presence. The letter and spirit of Chalupa, a landmark case referred to by the majority, hovers over these relocation cases. Indeed, “a divorce from a spouse is not a divorce from their children,” especially in joint custody cases.5 However, when the custodial parent moves far away with a child, an effectual “divorce” occurs between the child and the non-custodial parent.
The trial court in this case gave no treatment whatsoever to the contributing role of the father in making this child happy and a good student. There was no consideration of what would happen when this dual parenthood was cut asunder. The trial judge stated: “The court is not inclined to end a six year relationship of a child with a parent merely because that parent remarries and moves to a different location.” The essence of the trial court's findings dealt only with uncontroverted issues; the parties never contested that both were good parents, or that the child had been with the mother for a very long time and was doing well. The trial court dealt solely with the relocation and its effects on the child. Yet the findings totally ignore the issue of the case.
The importance of having both parents engaged in the upbringing of children cannot be overemphasized. Reams of research material are available addressing the negative impact parental relocation has upon children.6 If we are truly dedicated to placing the child's best interest as paramount, then we must seriously rethink our current notions of adult freedoms and prerogatives. When a custodial parent decides to move a great distance, the non-custodial parent may no longer be deeply involved in the child's life. The custodial parent has a choice—the choice not to move. The non custodial parent has no *774 choice and is not only helpless, but essentially stripped of his or her child. The child is also at the mercy of the custodial parent's choice.
The majority refers to another relocation case that this Court decides today, which works in tandem with this one. Frances v. Frances, 266 S.W.3d 754 (Ky.2008). Not only are these two cases distinguishable, but the distinction between them is instructive. First of all, in Frances this Court affirms the Court of Appeals' decision which relied heavily upon Brumleve v. Brumleve, 416 S.W.2d 345 (Ky.1967). That case provides the underpinning for this dissent: “[Custodial parents] should be given considerable latitude in choosing where they will live. But when this right is challenged by the former [spouse and parent] of the children, [the custodial parent] should offer some plausible reason for taking minor children out of the jurisdiction of the court to the prejudice of the visitation rights of the [non-custodial parent]. Mere whim is not enough.” Id. at 346. In Frances, the trial court considered the issue of relocation as critical to its decision-making. The majority declared: “Though the trial court stated the relocation of the Appellant was a substantial factor in the custodial determination ... the record also indicates that the trial court placed significant weight on Haley's strong relationship with her father, frequent interaction with the father's extended family, and adjustment within the community.” Id. at 758.
In my writing here, I do not opine that the trial court necessarily got it wrong in this case. However, I think there was insufficient consideration of the core issue—the impact of the relocation upon the child. Or at best, there were insufficient findings and lack of a much needed analysis.
I am concerned that our Court passes up a golden opportunity today to lend much needed guidance to our trial judges, who continue to confront the problem before us without assistance from this Court or the legislature.
Therefore, I very respectfully dissent.
VENTERS, J., joins.
Dissenting Opinion by Justice VENTERS.
I join Justice Cunningham's dissent in this case simply because I agree with his point, and the Appellant's argument, that the trial court took the unilateral relocation of the child as a fait accompli without adequate consideration of impact of the relocation on the child and on the child's other family relationships. Doing so, I believe, encourages such unannounced relocations when we should adopt, or at least promote, a policy that requires the joint-custodians to discuss the relocation before it occurs. The Appellee's pre-emptive move to Virginia was the ultimate usurpation of the status of “sole custodian” despite the joint custody decree then in effect. Except in the case of very young infants, a pre-emptive move can only rarely be accomplished without involving the child in the secrecy, to the detriment of its relationship with the non-residential parent.
Otherwise, I agree fully with Justice Noble's analysis in the majority opinion, and note that I concurred with the majority in the companion case of Frances v. Frances, 266 S.W.3d 754 (Ky.2008).
I distinguish this case from Frances because, in Frances, no child custody determination had been made by any court prior to the child's relocation.
All Citations
266 S.W.3d 759
Footnotes
See National Center for Health Statistics, U.S. Dep't of Health & Human Services, Pub'n No.2008–1120, Births: Final Data for 2005, National Vital Statistics Reports at 2 (Dec. 5.2007), available at http:// www. cdc.gov/nchs/data/nvsr/nvsr56/nvsr56_06.pdf (noting that while the number of births to nonmarried women was increasing, they accounted only for approximately one third of all U.S. births).
Howard N. Fullerson Jr., Labor force participants: 75 years of change, 1950–98 and 1998–2025, Monthly Labor Review, Dec. 1999, at 3, 4, available at http://www.bls.gov/opub/mlr/1999/12/art1full.pdf.
The current version of KRS 403.340 reads in relevant part:
(1) As used in this section, “custody” means sole or joint custody, whether ordered by a court or agreed to by the parties.
(2) No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:
(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the child with a de facto custodian.
(3) If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, the court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following:
(a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family of the petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child;
(d) Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health;
(e) Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and
(f) Whether the custodian has placed the child with a de facto custodian.
(4) In determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to:
(a) The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child's best interests;
(b) The mental and physical health of all individuals involved;
(c) Repeated or substantial failure, without good cause as specified in KRS 403.240, of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support;
(d) If domestic violence and abuse, as defined in KRS 403.720, is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents.
The current version of KRS 403.320 reads in relevant part:
(1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.
(2) If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health.
(3) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.
An excellent discussion of this is set forth in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), and will not be elaborated upon here.
See “Social Science and Children's Best Interests in Relocation Cases: Burgess Revisited,” by Richard A. Warshak, Ph.D., 34 Fam. L.Q. 96 (2000–2001)
See “Inertia and Inequality: Reconceptualizing Disputes Over Parental Relocation,” by Merle H. Weiner, 40 U.C. Davis L.Rev. 1776 (2006–2007).
Mize v. Mize, 621 So.2d 417 (Fla.1993); In re Marriage of Francis, 919 P.2d 776 (Colo.1996); Pollock v. Pollock, 181 Ariz. 275, 889 P.2d 633 (Ariz.App. Div. 1, 1995); In re Marriage of Eaton, 269 III.App.3d 507, 207 Ill.Dec. 69, 646 N.E.2d 635 (1995).
Here, the custodial parent, Heather, has moved five times since she moved from Ashland, Kentucky to Charleston, West Virginia in February of 2002, and apparently eight times since the entry of the Agreed Order in 2001.
See Chalupa v. Chalupa, 830 S.W.2d 391, 393 (Ky.App.1992).
For a rundown on the statutory or case law treatment of parental relocation divorce cases, see an article entitled, Relocation of the Custodial Parent: A State–By–State Survey, by David M. Cotter, Assistant Editor, Divorce Litigation, Volume 18, Number 6, June 2006.
524 S.W.3d 30
Court of Appeals of Kentucky.
Jamie Lynn BAIZE, Appellant
v.
Jeffrey Alan PEAK, Appellee
NO. 2016-CA-001462-ME
JUNE 30, 2017; 10:00 A.M.
Synopsis
Background: Unwed father filed a petition for joint custody of the child, with the father as primary custodian. The Daviess Circuit Court, Jay A. Wethington, J., granted primary physical custody of the parties' child to father, and mother appealed.
Holding: The Court of Appeals, Lambert, J., held that evidence was sufficient to support trial court's finding that it was in the best interests of the child for father to be primary custodian.
Affirmed.
West Headnotes (1) Collapse West Headnotes
Evidence was sufficient to support trial court's finding that it was in the best interests of the child for unwed father to be primary custodian; mother’s itinerant lifestyle after the parties' separation was not healthy for child, father lived with the child until the parents' separation when the child was six years' old, mother left child with a friend for a short time, and mother suffered from anxiety for which she had two prescription medications. Ky. Rev. Stat. Ann. § 403.270.
76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangements
APPEAL FROM DAVIESS CIRCUIT COURT, HONORABLE JAY A. WETHINGTON, JUDGE, ACTION NO. 16-CI-00455
Attorneys and Law Firms
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.
*31 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 shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) 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;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved[.]
....
(3) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.
....
The Mother insists that the circuit court and the commissioner improperly considered her personal life (KRS 403.270(3)) in the decision to grant the Father primary custodianship. She further contends that there were no factual findings regarding the factors enunciated in KRS 403.270(2)(a)–(e).
We disagree with the Mother. Kentucky Rule of Civil Procedure (CR) 52.01 provides:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of *32 law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review except as provided in Rule 52.04. Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02.
(Emphasis added.) The Father correctly points out that the Mother failed to request specific findings pursuant to CR 52.04 (“A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.”). See also Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011) (“[T]he litigant must assist the court in its good faith efforts to comply with the rule by requesting that specific finding.”).
Moreover, the findings that were made by the Commissioner and adopted by the circuit court were sufficient to support the decision to make the Father primary custodian. The Mother’s itinerant lifestyle (she was never in any one residence longer than four months) after the parties' separation could not be healthy for a child of any age. Not only did the Child attend four different schools during his second grade year, but the schools were in four different counties (including one move to another state). It defies credibility for the Mother to argue that this type of instability did not adversely affect the Child. Also, the Father testified that the Child had exhibited behavioral problems.
Furthermore, the Mother’s assertion that the Child has always lived with her (“this Child has never lived anywhere other than with his Mother”), while factually accurate, neglects to inform this Court that the Father also lived with the Child until the parents' separation when the Child was six years' old. The Mother does not mention the testimony about her leaving the Child with a friend for a short time, or that, when she claimed that the Father was often absent (sometimes for “months at a time”), it was his response that “the breaks” were caused by the Mother’s infidelity. There was also a finding that the Mother suffers from anxiety for which she has two prescription medications.
There was more than sufficient evidence to support the finding that it was in the best interests of the Child for the Father to be primary custodian. The Mother was granted “liberal and frequent visitation.” The circuit court’s decision comports with Kentucky statutory and case law. KRS 403.270; Burton v. Burton, 355 S.W.3d 489, 493–94 (Ky. App. 2011).
The Order of the Daviess Circuit Court is affirmed.
ALL CONCUR.
All Citations
524 S.W.3d 30
513 S.W.3d 912
Supreme Court of Kentucky.
Jude WEBER, Appellant
v.
Thomas Francis LAMBE, Appellee
2015-SC-000173-DG
MARCH 23, 2017
Synopsis
Background: Father filed petition for dissolution of marriage. The Jefferson Circuit Court, No. 11-CI-503339, entered decree of dissolution after a bench trial, including a division of marital assets and an award to mother of child support and nine years of maintenance. Both parties appealed, and the Court of Appeals, 2014 WL 6092239, affirmed in part and reversed in part. Both parties appealed.
Holdings: The Supreme Court, Keller, J., held that:
1 family court could include mother's share of the living expenses for the parties' two children in its calculation of mother's monthly living expenses;
2 family court made sufficient findings to support its award of nine years of maintenance;
3 family court's findings as to father's projected income were not clearly erroneous; and
4 family court did not abuse its discretion by ordering father to pay only $15,000 of the $75,000 that mother requested for attorney fees.
Affirmed in part and reversed in part.
West Headnotes (12) Collapse West Headnotes
If the trial judge’s findings of fact in the underlying action are not clearly erroneous, that is, are supported by substantial evidence, then the appellate court’s role is confined to determining whether those facts support the trial judge’s legal conclusion.
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)9Verdict and Findings in General
30k3425Clear Error; "Clearly Erroneous" Standard
30k3428Judge as factfinder below
(Formerly 30k1008.1(5))
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3460In general
(Formerly 30k842(2))
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3459Substantial Evidence
30k3462Judge as factfinder below
(Formerly 30k1010.1(6))
Where the trial court exercises its discretion, its decision is reviewed for an abuse of discretion.
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)1In General
30k3139Discretion of Lower Court
30k3141Abuse of discretion
(Formerly 30k946)
The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)1In General
30k3139Discretion of Lower Court
30k3141Abuse of discretion
(Formerly 30k946)
The trial court’s conclusions of law are reviewed de novo.
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)2Particular Subjects of Review in General
30k3162Conclusions of Law in General
30k3166De novo review
(Formerly 30k893(1))
Family court could include, in its calculation of mother's monthly living expenses for purposes of determining father's maintenance obligation in dissolution of marriage action, mother's share of the living expenses for the parties' two children; mother was acting as caretaker for the children, one of whom had diabetes and required a significant amount of care, including frequent trips to physicians, assistance with the administration of insulin, and monitoring after meals, and family court apparently determined that mother would have additional living expenses as a result of her role as custodian and caretaker. Ky. Rev. Stat. Ann. § 403.200(2)(a).
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k567Grounds and Defenses in Determining Existence and Amount of Obligation
134k580Child custody and support
A maintenance award’s amount and duration are within the sound discretion of the trial court.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k565Authority and Discretion of Trial Court
134k565(2)Discretion as to amount
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k605Extent of Time of Payments
134k606In general
Family court made sufficient findings in dissolution of marriage action to support its award to mother of maintenance for nine years; family court noted that it considered the 19-year length of the marriage, mother's age of 48 years, mother's financial resources and physical and emotional condition, and father's ability to meet his own and mother's needs, and family court found that mother could not maintain full-time employment until the medical condition of one of the parties' children, who had diabetes, stabilized, and it made the award specifically modifiable upon a change in such child's condition or when other child completed 8th grade. Ky. Rev. Stat. Ann. § 403.200.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k597Determination and Findings
134k597(1)In general
Family court was not required to make findings in dissolution of marriage action as to mother's future ability to meet her own needs and father's continued ability to pay maintenance in order to support its award to mother of nine years of maintenance; trial court was not required to predict the future financial situation of parties, since it could not possibly know that information, and maintenance decree could be modified in the future upon a showing of changed circumstances. Ky. Rev. Stat. Ann. §§ 403.200, 403.250.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k597Determination and Findings
134k597(2)Needs
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k597Determination and Findings
134k597(3)Ability to pay in general
Family court's findings as to father's projected income were not clearly erroneous in dissolution of marriage case in which mother was awarded maintenance; family court heard testimony from parties' jointly retained accountant and considered all of the evidence concerning father's income, including the fact that his executive position had been eliminated and that he would no longer be eligible to receive bonus pay that he had received in the past.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(C)Spousal Support
134k587Actions and Proceedings in General
134k594Evidence
134k594(3)Weight and Sufficiency
134k594(7)Income and assets
Family court did not abuse its discretion in dissolution of marriage action by ordering father to pay only $15,000 of the $75,000 that mother requested for attorney fees; family court heard extensive testimony regarding father's annual income and mother's liquidation of a jointly held bank account without permission from father or the court. Ky. Rev. Stat. Ann. § 403.220.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(H)Counsel Fees, Costs, and Expenses
134k1170Applications and Proceedings Between Parties
134k1170(6)Evidence in general
Under statute governing payment of attorney fees in dissolution of marriage actions, it is within the trial court’s discretion to order one party to pay the other party’s attorney fees. Ky. Rev. Stat. Ann. § 403.220.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(H)Counsel Fees, Costs, and Expenses
134k1131Authority and discretion of court
The trial court in a dissolution of marriage action is in the best position to observe conduct and tactics that waste the court’s and attorneys' time and must be given wide latitude to sanction or discourage such conduct through an award of attorney fees. Ky. Rev. Stat. Ann. § 403.220.
134Divorce
134VSpousal Support, Allowances, and Disposition of Property
134V(H)Counsel Fees, Costs, and Expenses
134k1137Grounds and Considerations for Award or Amount in General
134k1141Conduct of litigation; misconduct in general
*913 ON APPEAL FROM COURT OF APPEALS, CASE NOS. 2013-CA-000891, 2013-CA-000930, 2013-CA-001642, JEFFERSON CIRCUIT COURT NO. 11-CI-503339
Attorneys and Law Firms
COUNSEL FOR APPELLANT: Allen McKee Dodd, Louisville, Jacob Wayne Crouse, Dodd & Dodd Attorneys, PLLC.
COUNSEL FOR APPELLEE: Eugene L. Mosley, Louisville, Michael Thomas Underwood, Mosley, Sauer, Townes & Watkins, PLLC.
Opinion
OPINION OF THE COURT BY JUSTICE KELLER
Jude Weber and Thomas Francis Lambe cross-appeal the decision of the Court of Appeals to reverse in part and affirm in part the Jefferson Family Court. This Court granted discretionary review, and for the reasons stated herein, we affirm in part and reverse in part the opinion of the Court of Appeals.
*914 I. BACKGROUND.
Weber and Lambe were married on October 10, 1992. They remained together for nineteen years before separating. Two children were born during the marriage: Margaret, born in December 1996, and Kevin, born in September 1999. Margaret was diagnosed with juvenile diabetes at the age of two and was diagnosed with an eating disorder approximately two to three months before trial. Margaret’s health issues require frequent trips to various physicians, assistance with administration of insulin, and monitoring after meals. Weber is a stay-at-home mother, who has not worked outside the home since Margaret was born. Lambe has been employed by General Electric for more than twenty-five years preceding this action.
In September 2011, Lambe filed a petition for dissolution. Following a two-day bench trial, the Jefferson Family Court entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution on February 26, 2013. The family court’s decree restored each party’s non-marital assets and then divided their marital assets, which included significant real property and numerous investment and brokerage accounts.
The family court awarded the parties joint custody of the two children and determined that their monthly living expenses (excluding education costs) were $3,697. The court then ordered Lambe to pay child support in the amount of $2,150.09 per month in addition to the $108 per month that he paid in health insurance for the children. The family court also determined that because of Margaret’s health issues, Weber was unable to obtain full-time employment. The family court estimated that Weber’s reasonable monthly living expenses were $5,800 (including 39%, or $1,440, of the children’s living expenses), which required taxable income of about $7,300 per month. Accordingly, Lambe was ordered to pay maintenance in the amount of $7,300 per month for a period of nine years.
Finally, the family court found that Weber used $50,000 in marital assets to pay her attorney’s fees, and credited Lambe with having contributed $25,000 of that amount. Due to the disparity in the parties' financial resources, Lambe was ordered to pay an additional $15,000 of Weber’s attorney’s fees.
Following entry of the decree, both parties filed motions to alter, amend, or vacate pursuant to Kentucky Rule of Civil Procedure (CR) 59.05. On April 30, 2013, the family court ruled on the motions, making minor changes to its original judgment but otherwise denying the parties' requests. Both parties appealed the family court’s decree.
In an Order rendered November 14, 2014, the Court of Appeals determined that the family court erred by including a portion of the children’s living expenses in its calculation of Weber’s maintenance award. The Court of Appeals also found that the family court erred by failing to make findings that justified its award of maintenance for a period of nine years. We set forth additional background information as necessary below.
II. STANDARD OF REVIEW.
1 2 3 4A trial court is required to make specific findings of fact and set forth the conclusions of law it relied upon in rendering its judgement. CR 52.01. Because this matter was tried without a jury, the trial court’s findings of fact “shall not be set aside unless clearly erroneous....” Id. “If the trial judge’s findings of fact in the underlying action are not clearly erroneous, i.e., are supported by substantial evidence, then the appellate court’s role is confined to determining whether those *915 facts support the trial judge’s legal conclusion.” Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky. 2000). However, where the trial court exercises its discretion, its decision is reviewed for an abuse of discretion. “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). The trial court’s conclusions of law are reviewed de novo. Sawyers v. Beller, 384 S.W.3d 107, 110 (Ky. 2012).
III. ANALYSIS.
A. The family court’s decision to include the children’s living expenses in its calculation of Weber’s reasonable living expenses was neither clearly erroneous nor an abuse of discretion.
The family court ordered Lambe to pay 61% of the children’s living expenses, which totaled $3,697 per month. After deducting Lambe’s monthly payment for the children’s health insurance, Lambe’s child support contribution was $2,150.09 per month. The court then found that Weber could not maintain full-time employment until Margaret’s medical condition stabilized. The family court found that Weber’s reasonable monthly living expenses were $4,400. In addition, she was allocated about 39%,1 or $1,440 of the children’s living expenses. As such, her monthly living expenses totaling $5,800 included 39% of the children’s living expenses. The court found that Weber’s monthly living expenses would require taxable income of $7,300 per month, and the court ordered Lambe to pay maintenance in that amount.
At the Court of Appeals, Lambe argued that the family court erred by including 39% of the children’s living expenses within Weber’s living expenses. Lambe contended that, because he was ordered to pay in child support 61% of the children’s living expenses, he will, in fact, pay 100% of Weber’s and the children’s living expenses for nine years.
The Court of Appeals agreed with Lambe, holding that, “in calculating the amount and duration of maintenance, the family court is not to consider any amount expended by the party seeking maintenance for the care and support of a dependent child.” In doing so, the Court of Appeals noted that while “maintenance is for the needs of the recipient spouse[,] ... the purpose of the statutes and the guidelines relating to child support ... is to secure the support needed by the children commensurate with the ability of the parents to meet those needs.” Thus, the Court of Appeals remanded the issue to the family court to determine the amount of maintenance awarded to Weber without taking into account the children’s living expenses.
5 Weber now challenges the Court of Appeals’s decision. Specifically, she argues that, pursuant to Kentucky Revised Statute (KRS) 403.200, the family court was within its discretion to consider her child care burden when calculating her maintenance award. In response, Lambe argues that the Court of Appeals was correct in requiring the family court to calculate the *916 children’s living expenses separate and apart from Weber’s living expenses.
6In reaching its maintenance determination, the family court noted that it has the discretion to award maintenance to either spouse if it finds the spouse seeking maintenance “lacks sufficient property” and “[i]s unable to support [her]self ... or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.” KRS 403.200(1). A maintenance award’s amount and duration are within the sound discretion of the trial court. Id. (“The maintenance order shall be in such amounts and for such periods of time as the court deems just....” Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990)) (“[T]he award of maintenance is left to the trial court’s sound discretion.”). In determining the amount and duration of the maintenance award, the family court is to consider all relevant factors, including: “[t]he financial resources of the party seeking maintenance”; and her ability to meet her needs independently, “including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian[.]” KRS 403.200(2)(a).
In this case, Weber was acting as caretaker of Kevin and Margaret, the latter of whom required a significant amount of care, including frequent trips to various physicians, assistance with administration of insulin, and monitoring after meals. It appears the family court believed that Weber would have additional living expenses because of her role as Margaret’s custodian and caretaker. In calculating those additional living expenses, the court took a percentage of the children’s living expenses and added that amount to Weber’s living expenses. As noted above, when determining maintenance, KRS 403.200(2)(a) permits the court to consider “the extent to which a provision for support of a child living with the party includes a sum for that party as custodian.” Here, the court determined that a percentage of the children’s living expenses, i.e., the amount of child support due, included a sum for Weber as custodian, which the court appropriately attributed to her living expenses. In other words, the court determined that, because she was custodian of the parties' children and caretaker of Margaret, Weber’s living expenses were greater than they would otherwise have been. As farther support for the court’s decision to assign a percentage of the children’s living expenses to Weber, in addition to KRS 403.250’s requirement for modification, the court made the maintenance award specifically modifiable “in June of 2014, when Kevin completes 8th grade, or upon a change in Margaret’s medical condition.”
Finally, we note that Weber presented evidence that her living expenses, independent of any consideration of her role as custodian, were between $9,932 and $10,887. Therefore, the court could have simply awarded Weber maintenance in the amount of $7,300 without including any amount in her living expenses for her role as the children’s custodian.
The parties' discrepancy in income, paired with Margaret’s medical condition, presented a somewhat rare dilemma for the family court, forcing it to reconcile Kentucky’s maintenance and child support statutes. We believe the family court acted appropriately and within the express provisions of both statutes in doing so. For the preceding reasons, we hold that the court’s calculation of maintenance was not clearly erroneous as a matter of law, nor was it an abuse of discretion.
*917 B. The family court was within its discretion to award Weber maintenance for nine years.
The family court ordered Lambe to pay maintenance to Weber for nine years. In rendering its decision, the family court found that Lambewas unable to provide for her reasonable monthly living expenses through adequate employment or property awarded to her, and that she could not maintain full-time employment until Margaret’s medical condition stabilized.
At the Court of Appeals, Weber argued that she was entitled to permanent maintenance, given the length of the parties' marriage and her inability to find future employment, citing Gripshover v. Gripshover, 246 S.W.3d 460 (Ky. 2008). Lambe, on the other hand, argued that the award of maintenance, for a nine-year duration was excessive and an abuse of the family court’s discretion. We note that this issue was properly before the Court of Appeals pursuant to Lambe’s motion to alter, amend or vacate portions of the family court’s findings of fact, conclusions of law, and judgment.
The Court of Appeals held that Weber was not entitled to permanent maintenance. In doing so, the court noted that Weber’s reliance on Gripshover was misplaced. In Gripshover , our Court held that maintenance for longer periods and in greater amounts is warranted where “the marriage was long term, the dependent spouse is near retirement age, the discrepancy in incomes is great, or the prospects for self-sufficiency appear dismal.” Id. at 470. The Court of Appeals noted that Weber was only forty-eight years old at the time and possesses a bachelor’s degree in communications. Additionally, the Court of Appeals noted that one of the circumstances the family court used to justify its maintenance award—Margaret’s precarious health—would not continue indefinitely; therefore, Weber was not entitled to an award of permanent maintenance. However, the Court of Appeals made no determination regarding the appropriateness of the maintenance award’s nine-year duration. Rather, it remanded the issue of duration to the family court with instructions for the court to make specific findings supporting its choice to award maintenance for nine years.
7Having reviewed the record, we hold that the family court made sufficient findings of fact to justify the nine-year maintenance award.
The family court noted that it considered the factors contained in KRS 403.200: the length of the parties' marriage; Weber’s age, financial resources, and physical and emotional condition; and Lambe’s ability to meet his needs and Weber’s needs. Additionally, the family court found that Weber could not maintain full-time employment until Margaret’s medical condition had stabilized, and it made the award specifically modifiable “in June of 2014, when Kevin completes 8th grade, or upon a change in Margaret’s medical condition.”
The duration of a maintenance award falls within the trial court’s discretion. Gentry, 798 S.W.2d at 937 (Ky. 1990). The trial court was provided with sufficient evidence and it gave sufficient consideration to KRS 403.200’s relevant factors in awarding Weber maintenance. As such, we discern that the family court’s decision to award maintenance to Weber for nine years was within the court’s discretion and was not error. For the preceding reasons, we reverse the Court of Appeals’s decision to remand to the family court for further findings of fact.
8The Court of Appeals, in dicta, stated: “The family court neither found that [Weber’s] need for maintenance will terminate in nine years because of an increased *918 ability to meet her needs through property or employment income, nor found that [Lambe] will retain his ability to pay maintenance for nine years.” If the Court of Appeals meant to direct the family court to make findings of Weber’s ability to meet her own needs during the maintenance’s nine-year duration, as well as Lambe’s ability to pay during that time, that direction was in error. The trial court is not required to predict with certainty what the future financial situation of the parties will be for three reasons. First, the family court cannot possibly know what that parties' financial situation will be nine years into the future. Second, the family court is not required by statute to speculate as to the parties' future finances. Rather, the court must look at the parties' financial positions as they are at the time the parties appear before the court, and make reasonable determinations for that point in time and going forward. Finally, KRS 403.250 provides for modifying a maintenance decree upon “a showing of changed circumstances.” As such, any change in the parties' financial situation is envisioned in the maintenance modification statute.
The family court should neither speculate as to whether Weber’s need for maintenance will end because of an increased ability to meet her needs nor whether Lambe will receive the same level of income nine years from now as he is presently receiving. Accordingly, the Court of Appeals should not have directed the trial court to so speculate.
C. The Court of Appeals did not err in affirming the family court’s calculation of Lambe’s income.
9 Weber argues that the Court of Appeals erred in affirming the family court’s calculation of Lambe’s income. She asserts that the family court erred by not considering Lambe’s projected income for 2012, which reflected the fact that he historically received a bonus of approximately $30,000 and a grant of stock options for every year since 2004.
In its ruling, the family court found the following:
At the inception of this case, Mr. Lambe held an executive position with G.E. Supply Chain Solutions, where he earned a base salary of $194,376 per year, plus an annual incentive bonus. His 2012 bonus was $30,700, bringing his total income to $225,076. The Court notes that Mr. Lambe’s year-to-date income, as reflected on his November 11, 2012 pay statement is $256,615.32. However, that number is artificially inflated because it includes significant taxable income from his exercise of stock options....
In the fall of 2012, G.E. underwent a management restructure that resulted in the elimination of Mr. Lambe’s position. Mr. Lambe wished to remain with the company, so he considered several internal options. He ultimately accepted a position as Business Leader for G.E.’s Dishwasher Plastics Operations, which had no effect on his base salary. However, his new job is not an executive-level positon, so he is no longer eligible for an incentive bonus. Mr. Lambe will receive a bonus in February of 2013 for work performed in 2012. He may receive an additional bonus in 2014 as a type of severance, but that payment is not guaranteed.
Based on the foregoing, the Court finds that Mr. Lambe’s current income is $225,076, which yields a gross monthly income of $18,756. The Court understands that Mr. Lambe’s income may substantially decrease after 2013 or 2014, when his incentive pay has definitively ended.
*919 We agree with the Court of Appeals that the family court “thoroughly considered all of the evidence concerning [Lambe’s] income.” The family court made detailed findings regarding Lambe’s income after hearing testimony from the parties' jointly-retained accountant, Helen Cohen. The trial court’s findings of fact were not clearly erroneous; therefore, the Court of Appeals did not err by affirming the trial court’s ruling.
D. The Court of Appeals properly found no abuse of discretion in the family court’s denial of Weber’s request that Lambe pay the entirety of her attorney's fees.
10Finally, Weber challenges the family court’s decision to order Lambe to pay Weber only $15,000 of the $75,000 she requested in attorney’s fees. Weber asserts that this decision was an abuse of the court’s discretion. Prior to the family court rendering its decision, Weber, without permission from Lambe or the family court, liquidated more than $35,000 in mutual funds from the parties' joint account. Weber then paid this sum to her lawyer, despite the existence of a status quo order, which the family court noted in its judgment:
After her recent liquidation of the parties' Vanguard Account, [Weber] has used $50,000 in marital assets to pay her attorney fees. Therefore, [Lambe] will be credited with having contributed $25,000. The Court orders him to pay an additional $15,000 in light of the disparity in the parties' financial resources.
11 KRS 403.220 states that, “after considering the financial resources of both parties, [the court] may order a party to pay a reasonable amount for the cost to the other party ... for attorney’s fees.” (Emphasis added). Thus, it is within the trial court’s discretion to order one party to pay the other party’s attorney’s fees. See Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001) (“But even if a disparity exists, whether to make such an assignment and, if so, the amount to be assigned is within the discretion of the trial judge.”) and Wilhoit v. Wilhoit, 521 S.W.2d 512, 514 (Ky. 1975) (“[A]n allocation of court costs and an award of an attorney’s fees are entirely within the discretion of the court.”).
12The family court heard extensive testimony regarding Lambe’s annual income and Weber’s liquidation of the parties' jointly-held bank account. “[The] court is in the best position to observe conduct and tactics which waste the court’s and attorneys' time and must be given wide latitude to sanction or discourage such conduct.” Gentry, 798 S.W.2d at 938. We hold that the family court did not abuse its discretion in ordering Lambe to pay an additional $15,000 of Weber’s attorney’s fees. Therefore, the decision by the Court of Appeals is affirmed.
IV. CONCLUSION.
For the reasons stated above, we affirm in part and reverse in part the opinion of the Court of Appeals.
All sitting. All concur.
All Citations
513 S.W.3d 912
Footnotes
The family court stated that $1,440 amounted to 30% of the children’s living expenses. However, given that Lambe was responsible for 61% of the children’s living expenses, and that $1,440 is approximately 39% of the children’s total monthly living expenses ($3,697), the trial court’s “30%” appears to have been a typographical error. We recognize that 39% of $3,697 is actually $1,441.83, nonetheless, the family court rounded that amount to $1,440, and we do not question its decision to do so. Furthermore, we assume that the court followed this same procedure in rounding Weber’s total monthly living expenses from $5,840 to $5,800.
211 S.W.3d 63
Court of Appeals of Kentucky.
Eugenia Sue Wynn ROBINSON, Appellant,
v.
Robert Dale ROBINSON, Appellee.
No. 2006–CA–001095–ME.
Dec. 1, 2006.
Synopsis
Background: Father filed motion to set aside child custody decree that awarded parties joint custody of children, with mother being children's primary residential custodian. The Circuit Court, Rockcastle County, Debra Hembree Lambert, J., denied motion, but ordered that deposition testimony be taken if mother chose to relocate more than 120 miles from her current residence, and, after mother relocated, modified custody decree by naming father as children's primary residential custodian. Mother appealed.
Holding: The Court of Appeals, Acree, J., held that trial court lacked jurisdiction to modify custody decree.
Reversed and remanded.
West Headnotes (5) Collapse West Headnotes
A motion to modify a child custody decree where the modification is sought earlier than two years after entry of decree must be accompanied by at least two affidavits; if the applicable requirement is not met, the trial court is without authority to entertain motion, and, thus, the filing of affidavits is a jurisdictional requirement. KRS 403.340(2), 403.350.
7 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
Under proper circumstances, relief from a court's final decree of divorce, including an award of child custody, is available by means of a motion to set aside a judgment based on mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. Rules Civ.Proc., Rule 60.02.
76DChild Custody
76DVIIIProceedings
76DVIII(D)Judgment
76Dk526Amendment, clarification, opening, or vacating
Trial court lacked jurisdiction to modify custody decree that awarded parties joint custody of children, with mother being children's primary residential custodian, as father's pursuit of custody modification occurred within two years of award of custody in decree, such that father was required to file motion under statute governing motions for custody modification made within two years of entry of custody decree, which statute required that he attach to motion a minimum of two affidavits setting forth proper showing, which father failed to do. KRS 403.340(2).
7 Cases that cite this headnote
76DChild Custody
76DIXModification
76DIX(C)Proceedings
76DIX(C)1In General
76Dk608Pleading
76Dk609In general
Child custody modification falls exclusively within the purview of statutes governing custody modification, and any other judicially-created “gateways” to custody modification are inapplicable. KRS 403.340, 403.350.
1 Case that cites this headnote
76DChild Custody
76DIXModification
76DIX(A)In General
76Dk550In general
Mere fact that mother's relocation with children might affect frequency of father's time-sharing with children and children's contact with other persons did not, standing alone, support finding that mother's relocation created likelihood of serious harm to children, so as to warrant modification of joint custody to change primary residential custodian from mother to father. KRS 403.340(2).
1 Case that cites this headnote
76DChild Custody
76DIXModification
76DIX(B)Grounds and Factors
76Dk576Joint custody
Attorneys and Law Firms
*64 Scott M. Webster, London, KY, for appellant.
No Brief for Appellee.
Before ACREE, BARBER, and TAYLOR, Judges.
OPINION
ACREE, Judge.
When the Rockcastle Circuit Court entered a judgment dissolving the marriage of Eugenia “Gina” Sue Wynn Robinson (Gina) and Robert Dale Robinson (Dale) on June 23, 2005, it awarded the couple joint custody of their three (3) minor children *65 with Gina as the “primary custodian.”1 On March 15, 2006, the circuit court modified the joint custody order by making Dale the “primary custodian.” Gina appeals that order modifying custody. For the reasons stated, we reverse.
On March 11, 2004, Gina filed her petition for the dissolution of her fourteen-year marriage to Dale. Dale had previously removed himself from the marital residence and resided for the pendency of this action with his parents. Both parties in their initial pleadings expressed a desire for sole custody of their three (3) minor children.
Dale was first to move the court for an order of temporary custody. Prior to the hearing on that motion, the parties were able to agree on certain issues. On June 4, 2004, the court made an entry on its docket sheet2 noting among other things that mediation had resulted in the parties' agreement that Gina was to have possession of the marital residence until the divorce was final. Though not specifically stated in the record, the parties apparently agreed that the children would reside primarily in the marital residence with Gina. Notably, the court entered no temporary custody order nor did the court order either parent to pay child support.
On July 17, 2004, Gina found it necessary to move the court for temporary child support. Dale responded on July 28, 2004, by moving the court for his own order that he “be designated primary custodian” and that he also be awarded exclusive use of the marital residence. The court, still without entering a custodial order, directed the parties to “maintain status quo.”
Six months later, on January 14, 2005, still with no custody or support order in place, Gina re-noticed her motion for temporary child support. At the hearing on the motion ten days later, as reflected only on the docket sheet, the court “set c/s [child support to be paid by Dale] as $575.00 which is a $50.00 reduction for extra time.” The “extra time” referenced was one additional day beyond the standard visitation schedule that the parties agreed would be Dale's visitation. Still, no custody order was entered.
According to the Mandatory Case Disclosures filed by Dale and Gina one week before the court's entry of its Findings of Fact, Conclusions of Law and Decree of Dissolution (Decree), custody continued to remain an issue. The first custodial ruling by the trial court appears in the Decree entered June 23, 2005. It stated:
The court finds that the best interest of the children will be served by awarding the parties joint custody with the mother being the primary custodian, and the father having standard visitation....
*66 The Decree went on to divide the marital and non-marital assets and debts between the parties. Finally, the Decree contains the following relevant provision:
If either party should relocate their residence more than 150 miles from Rockcastle County, the time-sharing arrangement from herein shall be subject to de nova [sic] review and modification.
Shortly after entry of the Decree, Dale stopped paying certain debts assigned to him. Because the parties' creditors were not bound by the trial court's distribution of the parties' liabilities, the creditors pursued both Gina and Dale for payment; that is, until Dale filed a petition in bankruptcy on October 16, 2005. Thereafter, those creditors pursued only Gina. This added $17,501.78 to her liabilities. She soon was compelled to list the marital property for sale.
It was about this time that Gina received and had been contemplating an offer of employment and managerial training from a Chili's restaurant chain. This employment would provide her and her family with a substantially greater income. However, if she accepted, she would be required to relocate to the Memphis, Tennessee area.
On October 17, 2005, Gina brought a motion to modify Dale's mid-week visitation before the court because she believed that the relocation provision of the Decree required it. The motion was initially heard on October 21, 2005. The court, however, did not rule on Gina's motion then or at any time.
Instead, Dale's counsel requested additional time to respond to the motion and indicated he would be moving to set aside the Decree as to custody on the basis of the newly discovered evidence that Gina desired to move out of state. He further informed the court that he realized Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) would normally put the burden on his client to show the contemplated move would endanger the children. He believed, however, that setting aside the Decree would allow a de novo review of the permanent custody determination without the need to show endangerment but, instead, only the best interests of the children.
After hearing from both counsel, the court indicated Dale's need to take discovery to determine “whether or not it's in the children's best interest or what the harm might be to move to Memphis.” TAPE No. 089; 10/21/05; 9:14:45. The court then gave Dale “ten (10) days to file motion for modification.”
Dale's counsel stuck with his strategy and filed a “Motion to Set Aside Custody Decree” pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. He further requested a subsequent “de nova [sic] custody hearing pursuant to the standard of Kentucky Revised Statute (KRS) 403.270, rather than KRS 403.340....” ( [Appellee's] Motion to Set Aside Custody Decree, R.118).
The basis of Dale's CR 60.02 motion was fraud and newly discovered evidence. He claimed he only agreed to allow Gina to serve as their children's primary residential custodian because “during the pendency of this action, [Gina] repeatedly assured [Dale], the Court, and her own attorney that she had no plans to leave the state of Kentucky with the children.” ( [Appellee's] Motion to Set Aside Custody Decree, R.118).
Dale's motion was heard on November 4, 2005. During the hearing, Dale's counsel represented to the trial court that there was a “clause in their joint decree that if Mrs. Robinson relocated more than *67 1203 miles, that we would revisit the issue of custody de novo.” (TAPE No. 092; 11/4/05; 9:21:35). The trial court accepted this representation at face value:
Court: I guess we could have a de novo hearing as to custody but the, if the agreement [sic], and I wasn't aware of that, but if the separation agreement [sic] does have the 120 mile distance provision in it, then there would be a de novo hearing I would imagine.
(TAPE No. 092; 11/4/05; 9:24:26).
The court then denied Dale's CR 60.02 motion. Without stating a basis for continuing to consider modification, the court ordered “de nova[sic] testimony to be taken by deposition if Petitioner in fact moves 120 miles from Mt. Vernon per separation agreement....”
Faced with mounting expenses, Gina did make the decision to pursue the significantly more lucrative managerial-track employment with the restaurant chain in Memphis. On December 2, 2005, after being informed of Gina's decision, the circuit court ordered testimony to be taken by deposition and submitted to the court. On March 15, 2006, the trial court, in pertinent part, ruled as follows:
... The parties, by agreement, acknowledge that should either party relocate more than 150 miles from Rockcastle County, the custody and visitation issues would be subject to review and modification. Petitioner has relocated to the Memphis, Tennessee area, thus subjecting the decree to de novo review on these issues.
....
IT IS ORDERED that the custody award, child support and visitation order be modified [such] that the parties shall have joint custody of the minor children.... The father, Robert Dale Robinson, shall be the primary custodian, and the mother, Eugenia [sic] Sue Wynn Robinson, shall have standard visitation ... except there shall be no midweek visitation.... The mother testified ... that her income would be $35,000 per year. IT IS THEREFORE ORDERED that the mother shall pay child support to the father in the amount of $710.84....
It is this order that Gina appeals. Because the trial court erred in its interpretation of the June 23, 2005, Decree and in its application of law, we must reverse and order enforcement of the original permanent custody award contained in the Decree.
Child custody relocation litigation is not a new phenomenon in Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549 (1943)( “[S]ole question presented ... is whether the chancellor erred in modifying the judgment so as to permit [the custodial parent] to move to Pennsylvania and take the children with her.”). The arrival of the 21st century, however, heralded an accelerated evolution in this area of the law. This is true nationally4 as well as in Kentucky where our courts continue to address increasing numbers of such cases.5 Unfortunately, *68 despite Kentucky's recent legislative efforts,6 Chapter 403 of the Kentucky Revised Statutes (Dissolution of Marriage Child Custody) fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce.
The vast majority of state legislatures has passed a wide variety of laws directly addressing the relocation issue; nearly half require a relocating custodial parent to give advance notice of the move to the other parent, the court, or both.7 Kentucky is among the minority of states that have no specific statute. Therefore, until our legislature aligns with the majority of states, we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.
KRS 403.340(2) states:
No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:
(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
*69 (b) The custodian appointed under the prior decree has placed the child with a de facto custodian.
KRS 403.340(2).8 The companion statute, KRS 403.350, states, in pertinent part:
A party seeking ... modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested ... modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits.... The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.
1Taken together, these statutes establish certain clear prerequisites to the modification of a prior custody decree where the modification is sought earlier than two years after its entry. Specifically, the motion to modify “must be accompanied by at least two affidavits. [Citation omitted]. If the applicable requirement is not met, the circuit court is without authority to entertain the motion.” Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999). The filing of affidavits, therefore, is a jurisdictional requirement. Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006)(“[T]rial court had no jurisdiction to modify the [permanent custody] order unless a motion to modify, along with a supporting affidavit, was filed in the case.”).
However, before we find that the trial court had no jurisdiction to modify the Decree regarding custody, we will first examine the alternative means by which Dale attempted to obtain custody modification.
As indicated by the comments of Dale's attorney at the October 21, 2005, hearing, Dale was aware of the requirement of KRS 403.340(2) that he show Gina's contemplated move would endanger the children. He sought to avoid both the jurisdictional and substantive requirements of the statute by filing a CR 60.02 motion, thereby obviating the need for affidavits or proof of endangerment. Dull v. George,982 S.W.2d 227, 229 (Ky.App.1998)(When CR 60.02 relief is sought, requirements of KRS 403.340 do not apply), cited with approval in Gullion v. Gullion, 163 S.W.3d 888, 892 (Ky.2005).
2Under proper circumstances, relief from a court's final decree of divorce, including an award of custody, is available by means of a CR 60.02 motion. Crouch v. Crouch, 201 S.W.3d 463, 465 fn. 2 (Ky.2006). Had the trial court granted the extraordinary relief requested in Dale's CR 60.02 motion, the custody determination in the Decree would have been a nullity. The standard for determining custody then would not have been a modification under KRS 403.340, but an original determination of permanent custody under KRS 403.270. Dull, 982 S.W.2d at 229.
Unfortunately for Dale, the trial court denied his CR 60.02 motion. Dale did not appeal the trial court's denial and for good reason. Dale's deposition testimony made it clear that he knew Gina had developed ties to the Memphis area long before entry of the Decree. The fact that relocation was addressed in the Decree itself is further indication of a contemplated potential move whether to Memphis or some other destination in excess of 150 miles away.
*70 3Dale's effort to revisit the custody issue should have ended with denial of the CR 60.02 motion, but the trial court continued toward modification and, in doing so, committed reversible error. In reviewing the record on appeal, including the depositions and videotapes of the many hearings, it is clear the trial court did not follow KRS 403.340 in reaching its decision to modify custody.
The trial court appears to have relied on Dale's counsel's representation9 and did not examine the Decree. If the court had, the error in interpretation would have been immediately apparent. The provision in question permits review only of the “time-sharing arrangement”—not of the custody award. The error mistaking a provision authorizing modification of “time-sharing” for one authorizing modification of custody is a decisive, and in this case reversible, error.
The difference is significant since a motion to modify custody made within two years after the date of the custody decree must be made on the basis of affidavits that the child's or children's present environment may endanger seriously his physical, mental, moral, or emotional health, or that the custodian under the prior decree has placed the child with a de facto custodian. KRS 403.340(2). Where the modification is one of visitation only, however, the court may grant an order modifying visitation rights if it would serve the best interests of the child. KRS 403.320(3).
Crossfield v. Crossfield, 155 S.W.3d 743, 745 (Ky.App.2005).
Just as KRS 403.320(3) authorizes the court to modify a visitation order whenever it would serve the best interests of the child, the parties' “time-sharing arrangement” can be similarly modified.10 This is certainly true where the court anticipated such a need and identified in the decree events that would trigger reconsideration.
Clearly, Gina was mindful of the correct purpose and interpretation of the provision when she filed her “Motion to Modify Mid–Week Visitation.” The trial court was apparently confused by the combination of Dale's response in the form of his own motion to modify custody and his attorney's representation that the Decree permitted such modification.
4Our case law clearly holds that custody modification falls exclusively within the purview of KRS 403.340 and 403.350, and any other judicially-created “gateways” to custody modification are inapplicable. Fenwick v. Fenwick, 114 S.W.3d 767, 784 (Ky.2003). Consequently, even if the Decree had contained a provision setting up a standard for modification of permanent custody, it would be invalid unless it was in complete harmony with KRS 403.340. This, however, was not the case.
Because Dale's pursuit of custody modification occurred within two years of the award of custody in the Decree, Dale was required to file a motion pursuant to KRS 403.340(2) and attach to his motion a minimum of two affidavits with the proper *71 showing. He failed to do so and the trial court had no authority to modify custody.
Despite our statement in Fowler v. Sowers, 151 S.W.3d 357 (Ky.App.2004) that “ Fenwick carries quite limited precedential weight[,]” id. at 359, the Supreme Court's holding in that case remains sound law under KRS 403.340(2) where the modification is sought within two (2) years of the original award of permanent custody. The following passage from Fenwick applies in this case:
[W]hen a primary residential custodian gives notice of his or her intent to relocate with the parties' child, the burden is then upon any party objecting to file a custody modification motion within a reasonable time and after that, to satisfy the modification standard of KRS 403.340 in order to change the designation of primary residential custodian. If no motion is filed within a reasonable time, the primary residential custodian may relocate with the parties' child.
Fenwick, 114 S.W.3d at 786. Dale never pursued modification pursuant to KRS 403.340. In fact, he avoided it. Custody should not have been modified and Gina should have been permitted to relocate with her children.
5Furthermore, we have thoroughly examined the record and see no substantive basis for preventing Gina from relocating with her children to the Memphis area.
Although the “interaction and interrelationship” of the children with their father and other persons where they now live is a relevant factor in determining the likelihood of harm by the proposed relocation, [footnote omitted] the mere fact that relocation may affect the frequency of [Dale's] time-sharing with his children and the children's contact with other persons does not, standing alone, support a finding that the proposed relocation creates a likelihood of serious harm to the children.
For the foregoing reasons, the order of the Rockcastle Circuit Court modifying the joint custody award by designating Robert Dale Robinson as “primary [residential] custodian” is REVERSED and the custody order pursuant to which Eugenia Sue Wynn Robinson is to have primary residential custody of the children is ordered to be reinstated. The case is remanded for an order consistent with this opinion.
ALL CONCUR.
All Citations
211 S.W.3d 63
Footnotes
As in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003),
[t]he trial court employed the term “primary custodian.” This is undoubtedly a misnomer because the trial court awarded joint custody. Aton v. Aton, Ky.App., 911 S.W.2d 612, 615 (1995)(“There can be no ‘primary custodian’ in the joint custody context. Joint custody prohibits a court from selecting a primary custodian from two joint custodians. Such an act annihilates shared decision-making, a fundamental principle of joint custody. Although the statement quoted above is a distortion of the law, the Chalupa [v. Chalupa, Ky., 830 S.W.2d 391 (1992)] opinion reiterates that although one parent may have primary physical possession, the major decision-making is shared.”). Accordingly, it is apparent that the trial court intended to designate [Gina] as the primary residential custodian.
Fenwick, 114 S.W.3d at 773 fn. 8. Where the trial court or parties are quoted in this opinion, the error is retained. Otherwise, the proper term is used.
Referred to by the circuit clerk as “Ct. Cal.” or Court Calendar.
The Decree actually said “150 miles,” but this error is irrelevant since the contemplated move was greater than 400 miles. This irrelevant error was corrected in the order from which the appeal is taken.
Linda D. Elrod, Feature, States Differ on Relocation, 28 FAM. ADVOC. 8, 8 (Spring 2006)(“Lawyers and judges have noticed the increase in the number of custody disputes in which relocation is an issue. The reasons are many: the steady high-divorce rate; the number of joint-custody and shared-residency arrangements; the shifting job market; remarriages; and the mobility of today's society.”).
Despite the Supreme Court's comment in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) that “the relocation issue, at least in the context of sole custody, has been addressed and settled in Kentucky for more than a decade,” Id. at 784, Kentucky law in this area continues to evolve at a fast pace. Since 2000, the Kentucky appellate courts have addressed relocation/custody issues in some form in the following cases: Crouch v. Crouch, 201 S.W.3d 463 (Ky.2006); Brockman v. Craig, 205 S.W.3d 2444 (Ky.App.2006), mot. for disc. rev. filed, (Ky. Aug. 15, 2006) (No. 2006–SC–587–D); Bowman v. Bowman, ––– S.W.3d ––––, 2006 WL 658938 (Ky.App.2006)(Opinion Final, May 5, 2006); Allen v. Devine, 178 S.W.3d 517 (Ky.App.2005); Cox v. Cox, 170 S.W.3d 389 (Ky.2005); Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004); Fenwick v. Fenwick, 114 S.W.3d 767, 779 (Ky.2003); Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App.2000). We could add to that list a fair number of unpublished opinions.
In 2001, child custody litigation in Kentucky was significantly affected when the state legislature amended KRS 403.340. The effect of the amendment was to soften custody modification requirements when a motion for modification is filed more than two years after the decree is entered. Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004). For modification within two (2) years of the award of permanent custody, the standard remains as strict now as prior to the amendment.
The following states require 30 days' notice prior to relocation: Florida (FLA. STAT. § 61.13001(3)(2006)), Georgia (GA.CODE ANN. § 19–9–1 (2006)), Kansas (KAN. STAT. ANN.. § 60–1620 (2006)), Maine (ME.REV.STAT.ANN. tit.19–A, §§ 1653(14) & 1657 (2006)), Montana (MONT.CODE ANN. § 40–4–217 (2006)), New Mexico (N.M. STAT. § 40–4–9.1 (2006)), and Virginia (VA.CODE ANN. § 20–124.5 (2006)). These states require 45 days' notice: Alabama (ALA.CODE § 30–3–163 to 167 (2006)), California (CAL. FAM.CODE § 3024 (2006)) and Maryland (MD.CODE ANN., FAM. LAW § 9–106 (2006)). States requiring 60 days' notice are: Arizona (ARIZ.REV.STAT. § 25–408 (2006)), Louisiana (LA.REV.STAT. ANN. § 9:355.4 (2006)), Missouri (MO.REV.STAT. § 452.377 (2006)), New Hampshire (N.H.REV.STAT. ANN. § 458:23–a (2006)), Tennessee (TENN.CODE ANN. § 36–6–108 (2006)), Utah (Utah Code Ann. § 30–3–37 (2006)), Washington (WASH. REV.CODE §§ 26.09.405, et seq.(2006)), West Virginia (W.VA.CODE § 48–9–403 (2006)) and Wisconsin (WIS. STAT. § 767.481 (2006)). The 2006 session of the Indiana legislature recently enacted a 90–day notice requirement (IND.CODE ANN. § 31–17–2.2–3 (2006)). “Reasonable” notice is required in Colorado (COLO.REV.STAT. ANN. § 14–10–129 (2006)) and Oregon (OR.REV.STAT. ANN. § 107.159 (2006)). Finally, the following states specifically address the relocation issue without implementing a notice requirement: Illinois (750 ILL. COMP. STAT. ANN. § 5/609 (2006)), Iowa (Iowa Code Ann. § 598.21D (2006)), Massachusetts (MASS. GEN. LAWS ch. 208, § 30 (2006)), Michigan (MICH. COMP. LAWS § 722.31 (2006)), Minnesota (MINN.STAT. § 518.195, Subd. 7 (2006)), Nevada (NEV.REV.STAT. § 125C.200 (2006)), New Jersey (N.J. STAT. ANN. § 9:2–2 (2006)) and North Dakota (N.D. CENT.CODE § 14–09–07 (2006)).
Formerly KRS 403.340(1).
Having carefully reviewed these representations, they appear more cavalier than intentional or negligent. Matters of this import, however, should not be handled cavalierly either.
Strictly speaking, neither joint custodian derives his or her visitation rights from KRS 403.320. However, we agree with authority that the practice of renaming visitation “shared time,” “time-sharing,” “parenting time,” or any other similar term, even as to joint custodians, will not affect the inherent nature of visitation nor the applicability of KRS 403.320 to modify it. 16 LOUISE E. GRAHAM & JAMES E. KELLER, Kentucky Practice, Domestic Relations Law § 22.1 (2nd ed.1997).
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SELECTED TOPICS
· Modification of Joint Child Custody Decree
· Child Custody
·
· Proceedings
·
· Prior Judgment Incorporating Shared Parenting Plan
· Child Support
·
· Contracts Relating to Support
·
· Provisions of Separation Agreement Concerning Custody, Support, and Visitation of Minor Children
1. Secondary Sources
61 A.L.R.3d 657 (Originally published in 1975)
...This annotation considers the question of the power of a court to modify a decree for child support which was based upon a predivorce agreement of the parties. The type of factual situation presented a...
100 A.L.R.3d 1129 (Originally published in 1980)
...This annotation collects and analyzes the cases determining the validity and effect, as between divorced spouses, agreements between such divorced spouses, made subsequent to the entry of their divorce...
3. Effect of Parent's Military Service Upon Child Custody
21 A.L.R.6th 577 (Originally published in 2007)
...This annotation collects and discusses the state and federal cases specifically considering the effect on the determination of a child custody award or modification, as between the child's parents, of ...
5. Briefs
Appellees' John Hugh Shannon, P.A. and Lauren J. Strickland Opening Brief
1996 WL 33475112 Kenneth I. STRICKLAND, Appellant., v. John Hugh SHANNON, P.A. and Lauren J. Strickland Appellees. United States Court of Appeals, Eleventh Circuit. Mar. 04, 1996
...A threshold issue is whether the District Court's decision appealed by Kenneth I. Strickland constitutes a final decision, thus authorizing appellate review by this Court pursuant to 28 U.S.C. § 158(d)...
6. Brief of The County of Cuyahoga, Ohio as Amicus Curiae in Support of Petitioners
2015 WL 981535 James OBERGEFELL, et al., and Brittani HENRY, et al., Petitioners, v. Richard HODGES, Director, Ohio Department of Health, et al., Respondents. Supreme Court of the United States Feb. 27, 2015
...Cuyahoga County submits this Brief as amicus curiae in support of Petitioners. Home to the city of Cleveland, Cuyahoga County is the most populous county in the State of Ohio - one of the four states s...
2015 WL 881797 James Obergefell, et al., and Brittani Henry, et al., Petitioners, v. Richard Hodges, Director, Ohio Department of Health, et al., Respondents. Valeria Tanco, et al., Petitioners, v. William Edward Bill Haslam, Governor of Tennessee, et al., Respondents. Gregory Bourke, et al., and Timothy Love, et al., Petitioners, v. Steve Beshear, Governor of Kentucky, et al., Respondents. Supreme Court of the United States Feb. 27, 2015
...FN* Counsel of Record FN* Not admitted in D.C.; supervised by Ropes & Gray partners who are members of the D.C. Bar [Filed: 07/19/13] I, James Obergefell, under 28 U.S.C. §1746, declare under the penal...
9. Trial Court Documents
Out of Plan
2000 WL 35621613 UNITED STATES OF AMERICA, v. David Ray LUTHER, Defendant. United States District Court, W.D. North Carolina. July 10, 2000
...(For Offenses Committed On or After November 1, 1987) THE DEFENDANT: X pleaded guilty to count(s) 1 _ pleaded nolo contendere to count(s) _ which was accepted by the court. _ pleaded guilty by alford p...
10. Out of Plan
2005 WL 6073954 USA, v. MAALI, et al. United States District Court, M.D. Florida. Sep. 08, 2005
...The defendant was found guilty on Counts 54, 56, 57, 58, 59-71 of the Third Superseding Indictment. Accordingly, the court has adjudicated that the defendant is guilty of the following offenses: The de...
11. U.S. v. Liverman
2002 WL 34392421 UNITED STATES OF AMERICA, v. James A. LIVERMAN, Jr., Defendant. United States District Court, E.D. Virginia. July 12, 2002
...The defendant, JAMES A. LIVERMAN, JR., was represented by Walter B. Dalton. The defendant pleaded guilty to count(s) 1. Accordingly, the defendant is adjudged guilty of the following count(s), involvin
266 S.W.3d 754
Supreme Court of Kentucky.
Maria Regina FRANCES, Appellant,
v.
Bobby Gene FRANCES, Appellee.
No. 2007–SC–000076–DGE.
Oct. 23, 2008.
Synopsis
Background: In context of divorce proceedings, the Circuit Court, Trigg County, declared husband as child's primary residential custodian. Wife appealed. The Court of Appeals affirmed.
Holdings: On review, the Supreme Court held that:
1 initial custody determination was governed by statute requiring consideration of child's best interest, overruling Fenwick v. Fenwick, 114 S.W.3d 767, and
2 designation of husband as child's primary residential custodian was in best interests of child.
Affirmed.
West Headnotes (5)Collapse West Headnotes
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
50 Cases that cite this headnote
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3452Credibility and Number of Witnesses
30k3455Judge as factfinder below
(Formerly 30k1008.1(4))
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)9Verdict and Findings in General
30k3425Clear Error; “Clearly Erroneous” Standard
30k3426In general
(Formerly 30k1008.1(5))
Findings of fact are clearly erroneous only if they are manifestly against the weight of the evidence.
57 Cases that cite this headnote
30Appeal and Error
30XVIReview
30XVI(D)Scope and Extent of Review
30XVI(D)10Sufficiency of Evidence
30k3465Weight of Evidence
30k3473Manifest weight; manifestly contrary
(Formerly 30k1012.1(5))
When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion.
37 Cases that cite this headnote
76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk913Review
76Dk921Discretion
76Dk921(1)In general
76DChild Custody
76DXIIIAppeal or Judicial Review
76Dk913Review
76Dk922Questions of Fact and Findings of Court
76Dk922(1)In general
Initial custody determination that involved wife's relocation with child to Iowa as factor was governed by statute requiring consideration of child's best interest, and was not governed by statute governing modification of custody; overruling Fenwick v. Fenwick, 114 S.W.3d 767. KRS 403.270, 403.340.
15 Cases that cite this headnote
76DChild Custody
76DVIGeographical Considerations
76Dk260In general
Designation of husband as child's primary residential custodian under joint custody order was in best interests of child; wife had unilaterally relocated to Iowa with child without informing husband, which showed disregard of child's strong relationship with husband, husband's extended family, and child's adjustment in community, and mother's live-in boyfriend had restricted, supervised visitation with his own children due to alcoholism. KRS 403.270.
22 Cases that cite this headnote
76DChild Custody
76DIVJoint Custody
76Dk147Physical custody arrangements
Attorneys and Law Firms
*754 Julia Thigpen Crenshaw, White, White & Crenshaw, Hopkinsville, KY, Counsel for Appellant.
Sands Morris Chewning, Chewning & Chewning, Hopkinsville, KY, Counsel for Appellee.
Opinion
Opinion of the Court by Justice NOBLE.
This case arises from an initial custody determination by the Trigg Circuit Court awarding primary physical custody of the parties' daughter to the Appellee, Bobby Gene Frances. The Appellant, Maria Regina Frances, claims that the trial court's findings of fact were clearly erroneous and that the court improperly considered her relocations as a factor in its decision. After reviewing the record and the applicable statute, KRS 403.270, this Court finds no *755 clear error or abuse of discretion by the trial court and affirms the Court of Appeals, which affirmed the trial court's decision granting joint custody, with the Appellee being designated as the primary residential parent.
I. Background
The parties were married on January 30, 1991, and had a daughter, Haley, on December 2, 1997. In March 2004, the parties separated but continued to live together in Cadiz, Kentucky. The Appellant filed for divorce on May 9, 2004, and in June 2004, the Appellee moved to neighboring Hopkinsville, Kentucky. A decree dissolving the parties' marriage was entered June 8, 2005. The decree, however, did not address custody, visitation, child support, and other matters, and the Trigg Circuit Court retained jurisdiction over those issues.
By agreed order entered September 2, 2004, the Appellee was ordered to pay $212.68 in child support each month. After their separation, the parties operated under an informal shared custody agreement, under which the Appellant functioned as the primary residential parent and the Appellee enjoyed nearly equal time sharing with Haley. This was not formalized in a temporary custody order or agreed order.
Both parties adhered to the informal custody agreement until April 2005, when the Appellant removed Haley from school and relocated to Iowa without notifying the Appellee or the Trigg Circuit Court. The Appellee filed an emergency motion for temporary custody on April 11, 2005, at which time the parties were awarded temporary joint custody. The order provided for nearly equal time sharing and reasonable telephonic communication between the parties and Haley. A hearing was conducted on April 28, 2005, and proof was taken on the issue of custody. On June 21, 2005, a second hearing was conducted, and on June 28, 2005, the Trigg County Circuit Court awarded joint custody with primary physical custody to the Appellee. In support of its ruling, the trial court concluded that the Appellant's unilateral decision to remove Haley from school and relocate to Iowa without notifying the Appellee disregarded the child's best interests. Haley's close relationship with the Appellee, regular and frequent interaction with the Appellee's extended family, and successful adjustment within the community of Trigg County, Kentucky provided the basis for the trial court's decision. The trial court denied a subsequent motion to amend, alter, or vacate.
The Court of Appeals affirmed the Trigg Circuit Court, holding that the trial court was in the best position to make a custody determination and the decision was neither clearly erroneous nor an abuse of discretion.
This Court subsequently granted discretionary review to address custody and relocation issues. This case was heard on the same day as Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008), released herewith and which also addresses relocation and child custody. Much of what is discussed therein applies here as well, though this case involves relocation issues prior to issuance of the custody decree, and Pennington's relocation issues arose subsequent to the custody decree.
Specifically, however, Appellant relies on Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), which is overruled in part in Pennington and must also be addressed in this case because both this case and Fenwick involve relocation issues that arise prior to entry of the custody decree.
II. Analysis
The Appellant argues that the trial court erred in naming the Appellee the primary *756 residential custodian and erred in its findings regarding her abrupt relocation to Iowa. She argues specifically that it was unreasonable and unfair in light of the evidence for the trial court to name the Appellee primary residential custodian when she functioned as Haley's primary caregiver throughout her life. Additionally, she argues that it was erroneous for the trial court to conclude the relocation to Iowa was not motivated by a desire to improve living conditions. Though the Appellant attempts to characterize the trial court's determinations as two distinct errors, the bottom line is that the finding regarding her relocation to Iowa was simply part of the consideration in determining that it was in Haley's best interest for the Appellee to be her primary residential custodian.
1 2 3 Civil Rule 52.01 states in pertinent part, “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Furthermore, findings of fact are clearly erroneous only if they are manifestly against the weight of the evidence. Wells v. Wells, 412 S.W.2d 568, 571 (Ky.1967). These directives are clearly applicable to child custody cases. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986). When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky.1974).
The Appellant primarily notes various items of evidence in the record that support her version of the facts and that cut against the trial court's findings. She also relies on a 2004 unpublished opinion from the Court of Appeals, Jones v. Jones, No.2001–CA–002037–MR, 2004 WL 360901 (Ky.App. Feb.27, 2004), which she cites pursuant to CR 76.28. The Appellant improperly characterizes the trial court's finding that the relocation “was not career motivated but was based on a whim arising out of a romantic relationship” as the deciding factor in the trial court's custodial determination. She cites Jones to support her claim that the trial court's conclusion that she moved for a “romantic relationship” was an improper basis for denying her designation as primary residential custodian.1
4As the trial court in this case properly noted, its custody ruling was not entered in response to a motion to modify a permanent order of custody; rather, it was actually the custody determination. As such, the court properly considered the standard required by KRS 403.270, the custody determination statute, which states that custody shall be determined in accordance with the best interests of the child giving each parent equal consideration. The statutory guidelines of KRS 403.270 do not include a definition of the best interests of the child standard; however, KRS 403.270(2) requires the trial court to consider all relevant factors and provides a list of non-exclusive, demonstrative factors to be considered in custodial determinations.
Citing Fenwick as authority, Appellant argues that as the primary caregiver in Haley's life up until the final custody decree, she was entitled to relocate with her child and that Appellee was required to show that the move seriously endangered the child, and that the harm from change of custody to him would be outweighed by *757 the good. However, this Court in Fenwick did not consider that relocation had been raised prior to entry of the final custody decree, and thus applied KRS 403.340, the modification of custody statute. In so doing, this Court erred because it did not distinguish between a temporary custody order and a custody decree. The Court now recognizes that the effect of relocation by a parent with the child on custody and visitation must be viewed in light of whether relocation occurs pre- or post-decree.
KRS 403.340, the modification of custody statute, speaks to modification of a custody decree, but the child custody statutes include no express definition of a “custody decree.” While the generally preferred dictionary definitions of “decree” contemplate it as an ultimate decision or a “final judgment,” the term having originated as the name of the “judgment” from a court of equity, it is often applied even to interim orders, especially in domestic cases. See Black's Law Dictionary 440–41 (8th ed.2004). Though Kentucky's child custody statutes include no express definition, it is clear that they distinguish between interlocutory child custody orders and decrees, with the latter meaning a final decision that ends the custody proceeding, is immediately appealable, and is subject to modification at a later date. The decree is the “judgment” (as defined in CR 54.01) in a custody case. The distinction is inherent in KRS 403.280, which provides that a court may enter temporary custody orders during a proceeding. This anticipates that custody matters will have to be dealt with in an interim manner before the final decree is entered. KRS 403.350 discusses both temporary custody orders and custody decrees, which further indicates that they are two separate things.
Thus, this Court must conclude that there are both temporary custody orders and custody decrees. Any order entered pursuant to KRS 403.208 is a temporary custody order; such decisions are “pendente lite,” “interlocutory,” or “non-final.” The trial judge's “final” decision about custody is the custody decree. Finality in this context is different than in most others, however, as the decision, while immediately appealable, is subject to modification at a later time under KRS 403.340. For present purposes, the final decision—the decree—is the one that is “final or appealable,” meaning that it is “a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.” CR 54.01. For example, as applied to Fenwick, the pendente lite order discussed in that opinion was a “temporary custody order” and the final decision (entered on December 8, 1997) was a custody decree. To the extent that Fenwick is inconsistent with this understanding, it is overruled.
In making the final custody decree, the trial court must apply KRS 403.270, which has a best interests standard. Consequently, most of the discussion in Fenwick about the standard to be applied to modification of custody must be disregarded in this case, as must any rule that appears to give a preference on relocation to a primary residential parent. Here, the trial court correctly applied the best interests standard, and while Appellant obviously disagrees with its findings, this Court cannot depart from them unless the factual findings are clearly erroneous or the trial court abused its discretion in applying the law.
5The Appellant's brief focuses on providing explanations and justifications for her move to Iowa. She asserts, among other things, that her reasons for relocating were to escape the Appellee's threatening, erratic behavior and to improve her financial situation by sharing household expenses with her live-in boyfriend. She *758 claims these points demonstrate why the trial court made incorrect findings of fact and abused its discretion. However, the trial court conducted “extensive hearings on child custody, visitation and support,” considered these allegations and, based on the evidence, came to the conclusion that the Appellant “disregarded the child's best interest by abruptly pulling her out of school later in the term and removing her to Iowa without notification to the child's father.” Though the trial court stated the relocation of the Appellant was a substantial factor in the custodial determination (not the “deciding factor” as alleged by the Appellant), the record also indicates that the trial court placed significant weight on Haley's strong relationship with her father, frequent interaction with the father's extended family, and adjustment within the community. The Appellant's unilateral decision to disregard these substantial components of Haley's life supports the conclusion that it is in Haley's best interests that the Appellee function as primary residential custodian.
The Appellant also faults the trial court for making a final custody determination without waiting for the results from a court-ordered home study in Iowa entered May 4, 2005. Before the home evaluation report was concluded, the Appellee moved to reopen the proof, claiming that the Appellant had lied under oath concerning her live-in boyfriend's criminal convictions. At a hearing on June 21, 2005, evidence was presented that Appellant's live-in boyfriend, Michael Plank, had a prior DUI conviction. While under house incarceration, Plank had “passed out” in his hotel room while his own children played unattended in a motel pool on his visitation day. As a result, for an extended period thereafter, he was restricted to supervised visitation with his own children. The Appellant had testified that Plank had completed court-ordered alcohol counseling and did not drink around the home. While this was not directly contradictory to the new evidence, it did indicate less than fully candid testimony, and it was proper for the trial court to give that testimony weight.
The trial court was in a position to weigh the new evidence presented at this hearing with that it had heard in the previous hearings, and to make a well-reasoned custody determination without the benefit of a home study. The record clearly demonstrates careful attention and consideration to the best interests of the child.
Strikingly, the Appellant argues that the trial court placed too much emphasis on a single factor—her relocation to Iowa—yet simultaneously requests this Court to reverse the decision of the trial court almost solely based on her status as primary caregiver before the parties separated. While the trial court acknowledged it can be detrimental to remove a young daughter from her mother, it held that the other factors nevertheless supported the change in primary residence.
Although Appellant did relocate with the child, this case is not about the typical relocation questions of whether the relocation warrants a change of custody or of timesharing. Since this was the actual custody determination, the trial court had a clear directive to make its decision based on the best interests standard set forth in KRS 403.270.
After reviewing the record, it is clear the trial court's decision was supported by substantial evidence. While some of the evidence conflicted with the trial court's conclusions, and a different trial court or a reviewing appellate court might disagree with the trial court, the standard on appellate review requires a great deal of deference both to its findings of fact and discretionary decisions. To echo the Court of Appeals, the trial court was in the best *759 position to resolve the conflicting evidence and make the determination that it was in Haley's best interest for the Appellee to have primary physical custody. The trial court's decision adheres to the mandate of KRS 403.270, including giving due consideration to all relevant factors. The Court of Appeals was correct in noting that the trial court's decision was neither clearly erroneous nor an abuse of discretion.
Therefore, the Court of Appeals is affirmed.
MINTON, C.J.; ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ., concur. CUNNINGHAM, J., not sitting.
All Citations
266 S.W.3d 754
Footnotes
Without discussing the propriety of CR 76.28 as applied in this case, the Court has addressed Jones only to the extent Appellant relies on it for the reasoning of her argument as that case is not binding on this Court.
