Opinion
NO. 2019-CA-001085-ME
04-10-2020
JAMES ADAMS APPELLANT v. CARRIE GREGORY APPELLEE
BRIEF FOR APPELLANT: Mary-Ann Smyth Corbin, Kentucky BRIEF FOR APPELLEE: Jennifer Caudill Bundy London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT FAMILY DIVISION
HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 15-CI-00710 OPINION
VACATING, IN PART, AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. GOODWINE, JUDGE: James Adams (Father) appeals the June 20, 2019 order of the Laurel Family Court denying his motion to alter, amend, or vacate its April 22, 2019 order. After careful review, we vacate, in part, and remand to the family court for specific findings of fact and conclusions of law regarding Father's motion to modify timesharing.
Although Adams lists only the June 20, 2019 order in his notice of appeal, both orders are attached to his brief.
The April 22, 2019 order contained rulings on motions other than custody and timesharing that are not subject to this appeal.
BACKGROUND
Father and Carrie Jones Gregory (Mother) are the parents of one minor child, M.A., age 8 (Child). The parties were never married. Father lives in Indiana, and Mother lives in Kentucky. In 2015, Father filed a verified petition for joint custody and visitation. Approximately one year later, prior to the final hearing, the parties agreed to joint custody with Mother as the primary residential custodian and Father receiving alternating weekends and parenting time on some holidays and breaks.
The procedural history following entry of the agreed order is lengthy and complex. The parties were before the family court almost monthly on various motions, including for sole custody or to modify timesharing. In early 2017, Father became the primary residential custodian following a dependency, neglect, and abuse complaint filed by the Cabinet for Health and Family Services, Department for Community Based Services. Mother stipulated to neglect based on her substance abuse. Following Mother's successful completion of substance abuse treatment and working her case plan, the family court returned Child to her, despite Father's objection and request to remain the primary residential custodian.
On September 17, 2018, Father filed a motion to modify timesharing. The family court held the hearing on December 4, 2018. The family court held Mother in contempt for failing to appear at the hearing, suspended her timesharing, imposed jail time of 179 days, and awarded Father "sole custody [sic] of [Child]." Record (R.) at 142. Interestingly, that order was mailed to Mother at her correct address.
The family court scheduled a hearing for October 16, 2018, but neither party appeared. Mother's copy of the motion was returned "undeliverable" and "unable to forward." Her counsel withdrew, and the family court rescheduled the hearing for December 4, 2018. A copy of that order was again mailed to Mother at an incorrect address and, again, returned, marked "undeliverable" and "unable to forward."
Prior to receiving the December 18, 2018 order, Mother received a phone call from Child's school informing her that Father was there with a court order to pick up Child. Immediately upon receiving the order, Mother filed a motion for an ex parte emergency hearing, requesting a stay of the December 18, 2018 order. She also filed a motion to alter, amend, or vacate the December 18, 2018 order, arguing she never received notice of the hearing.
Father filed a response with multiple pages of exhibits including text messages, Mother's prior criminal citations, and Child's medical records. Mother renewed her previously filed motions and filed an additional motion to strike Father's response to her motion to alter, amend, or vacate. Father timely responded.
The family court heard the motions on February 19, 2019. Both parties were present and represented by counsel. Mother had several motions to be heard, including motions: (1) to alter, amend, or vacate; (2) for return of the child; (3) to modify visits; (4) to suspend the contempt; (5) to slash sentence; and (6) to strike. Father had a motion to modify timesharing.
The parties were the only two witnesses. After the parties testified, the following colloquy occurred:
THE COURT: What is the current schedule?
MOTHER'S COUNSEL: Current schedule is you had given [Father] sole custody and [Mother's] visitation is suspended. You found her in contempt and sentenced her to 179 days. Prior to that, Judge, in October 2016, was joint custody. [Father] had every other weekend, Friday at 6:00 until Sunday at 6:00 or 7:00 and they rotated holidays.
FATHER'S COUNSEL: I would agree with that. It's all in that October 2016 order.
THE COURT: Is there a bench warrant?
MOTHER'S COUNSEL: I don't think it actually got issued.
THE COURT: Withdraw any bench warrant if there is one. So, on the motion to alter, amend, or vacate, grant in part and overrule in part. Clear up the bench warrant. I think the two months that [Mother] has been without the child will cover any sentence for the contempt. So, we'll call the contempt credit for time served, or however you want to word it. I'm not going to make a finding today on the big issue. Grant motion on the contempt sentence. Overrule the motion for immediate return of the child. Grant in part the motion to modify visitation from now until the final order comes out, grant [Mother] parenting
time every other weekend, exchange child in Dry Ridge. Then on the big issue of whether or not to return to the original October 2016 order, both attorneys tender proposed orders within 14 days.
. . . .
THE COURT: Okay. Alternating weekends start this Friday at Dry Ridge.
MOTHER'S COUNSEL: Friday at 6:00 to Sunday at 6:00?
FATHER'S COUNSEL: Judge, how about 5:00?
THE COURT: What time -
FATHER: He gets to my house at 2:35.
THE COURT: So, 5:00 is okay? Friday to Sunday at 5:00? That way you can get him home and settled on Sunday night before school starts Monday morning.
FATHER: That's fine.
FATHER'S COUNSEL: Can we include in here that Mr. Kendrick is to have no contact with this child?
. . . .
THE COURT: No unsupervised.
MOTHER'S COUNSEL: Judge, the proposed order will cover the remainder of the motion to alter, amend, or vacate and whether to restore custody to go back to the other order, correct?
THE COURT: Yes. I mean, obviously we are going to get back to joint custody but I'm not sure where [Child] is going to primarily reside. I haven't decided that. He seems -- Tender orders.
MOTHER'S COUNSEL: Is the Court not comfortable with making a ruling on whether she knew about it?See Video Record (VR): 02/19/19, 11:41:21-11:48:00.
FATHER'S COUNSEL: Judge, I don't know what that's going to add. I don't -
THE COURT: I've basically ruled on that. She's purged.
The "it" Mother's counsel referred to is the December 4, 2018 hearing for which Mother never received notice. Father testified that he knew Mother no longer resided at the address where the motion was mailed but believed the circuit clerk was responsible for mailing out the notices. The Court simply stated "she's purged" referring to the contempt.
Following the February 19, 2019 hearing, the family court took the matter under submission and requested both parties to submit detailed findings of fact and conclusions of law. Both parties did so. The Court entered detailed findings of fact and conclusions of law prepared by Father's counsel and entered an order prepared by Mother's counsel ruling on their respective motions. Both were entered on March 22, 2019. In Mother's order, the Court granted, in part, and denied in part, her motion to alter, amend, or vacate. The family court withdrew the bench warrant and jail sentence. It found Mother had gone almost two months without her child and found that time sufficient to cover the sentence previously ordered. It also lifted her suspended visitation. R. at 444. However, both the findings of fact and conclusions of law, as well as Mother's separate order, were both vacated without explanation by order entered March 27, 2019. The order vacating required the parties to tender new proposed orders.
Mother's counsel tendered a new order on her motions. The family court entered the order on April 22, 2019. R. at 448. In addition to the oral rulings set forth above, the family court also modified its December 18, 2018 order "wherein the parties shall have joint custody of [Child]." Id. The family court also stated:
After considering all testimony and exhibits, the Court finds it is in the best interest of the minor child for the parties' visitation times to revert as set forth in the Court's order entered on October 5, 2016 to become effective the Sunday prior to the week in which the child shall begin school for the 2019-2020 school year.R. at 449. The family court's October 5, 2016 order granted the parties equal timesharing.
On May 2, 2019, Father filed a motion to alter, amend, or vacate the family court's April 22, 2019 order, arguing that the family court completely ignored the plethora of evidence he presented at the hearing. R. at 451-54. The family court scheduled a hearing on May 13, 2019. The May 13th handwritten docket entry indicates "under submission" "both parties to tender proposed orders" "A/O." R. at 456.
An agreed order was entered on May 23, 2019, allowing Child to remain in Indiana with Father to attend the Indianapolis 500 race on Sunday, May 26, 2019, and Mother to pick him up on Monday, May 27, 2019. The agreed order also stated: "the parties shall follow the visitation schedule set forth in the April 22, 2019 order." R. at 457. On June 5, 2019, the family court entered an order granting the parties an additional 14 days to tender proposed orders. R. at 459.
Father's counsel tendered detailed proposed findings of fact and conclusions of law to replace the March 22, 2019 findings. The family court entered said findings on June 13, 2019. However, on June 20, 2019, the family court vacated said order without explanation. That same day, the family court denied Father's motion to alter, amend, or vacate the April 22, 2019 order. R. at 471. This appeal followed.
STANDARD OF REVIEW
The standards for modifying timesharing are succinctly stated in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). "Visitation, [or timesharing] . . . can be modified upon proper showing, at any time . . . pursuant to KRS 403.320" based on the best interest of the child. Id. at 767 (footnote omitted). Family courts have broad discretion to decide custody and timesharing. Jones v. Livesay, 551 S.W.3d 47, 51 (Ky. App. 2018).
Kentucky Revised Statutes.
The family court is in the best position to resolve the conflicting evidence and make the determination that is in the child's best interest. Frances v. Frances, 266 S.W.3d 754, 758-59 (Ky. 2008). "If the factual findings underlying the court's determination are supported by substantial evidence, we may not interfere with the family court's exercise of its discretion." Hempel v. Hempel, 380 S.W.3d 549, 551 (Ky. App. 2012).
"[W]hen . . . 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." Pennington, 266 S.W.3d at 769.
Our Supreme Court recently held that the rebuttable presumption found in KRS 403.315 providing that joint custody and equal timesharing is in the best interest of the child does not apply to modification of timesharing under KRS 403.320. See Layman v. Bohanon, -- S.W.3d --, No. 2019-SC-000364-DGE (Ky. Mar. 26, 2020). Thus, specific findings of fact and conclusions of law are required. Id.
This opinion is not yet final.
ANALYSIS
At the outset, we must address a deficiency of Father's brief. CR 76.12(4)(c)(v) requires "at the beginning of [each] argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Father failed to include a preservation statement for his sole argument.
Kentucky Rules of Civil Procedure.
"Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted). Because the family court failed to make specific findings of fact and conclusions of law, we elect to ignore the deficiency and proceed with our review.
In his motion to alter, amend, or vacate, as well as his sole argument on appeal, Father argues that the family court erred when it denied his motion to modify his timesharing with Child, as it did not consider the "plethora" of evidence he presented at the hearing. The family court stated: "After considering all testimony and exhibits, the Court finds it is in the best interest of the minor child for the parties' visitation times to revert as set forth in the Court's order entered on October 5, 2016 . . . ." R. at 449. The family court's October 5, 2016 order granted equal timesharing as reasonably close to 50/50 as it can be.
Father requested a modification of timesharing and argued that Mother should have less than equal timesharing. We are unable to determine what evidence the family court relied on to determine that it was "in the best interest of the minor child for the parties' visitation times to revert as set forth in the Court's order entered on October 5, 2016 . . . ." Id. That bare-bones, conclusory statement begs the question: Why is the timesharing arrangement set forth in the Court's order entered on October 5, 2016 in the best interest of Child?
CR 52.01 provides in part: "In all actions tried upon the facts without a jury . . . the court shall find the facts specifically and state separately its conclusions of law thereon[.]" CR 52.04 provides:
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.In Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011), the Supreme Court recognized the tension between the language in CR 52.04 that requires a party to object to the lack of a finding of fact, and the language in the first subsection of the rule, CR 52.01, which mandates that a trial court make findings of fact and conclusions of law. Id. at 458.
The Court observed that in domestic relations cases, post-decree motions concerning visitation and timesharing are "actions tried upon the facts without a jury" as contemplated in CR 52.01. Id. at 455. It concluded CR 52.01 places a duty upon the trial judge to engage "in at least a good faith effort at fact-finding and that the found facts be included in a written order" and, therefore, CR 52.04 applies only when the trial court has made findings but not addressed an essential issue. Id. at 458. The Court placed the broader burden on the trial court, emphasizing its express duty to render necessary findings of fact and conclusions of law. Id. Additionally, as a matter of policy, the Court pointed out:
[W]hen a court fails to make any kind of factual findings as required, the litigant should not be prohibited from asking an appellate court to require the lower court to make such findings. A trial court should be well aware of the requirements of CR 52.01, and failing in that duty places a litigant in the difficult position of signaling to the court that an appeal is imminent. It is not in the best interests of enforcing the intent of the rules, orderly review, or justice to require written requests in such circumstances.Id. The Court held a denial of a modification of timesharing based solely on the conclusion of law that it "would not be in the child's best interest" violated the command of CR 52.01. The Court reasoned: "Saying only that it is not in a child's best interest . . . and nothing further, raises the question 'Why?'" Id. at 459. The reverse is equally true.
In this case, the family court's order is fatally flawed. It only recites "it is in the best interest of the minor child for the parties' visitation to revert as set forth in the Court's order entered on October 5, 2016." Because the order does not contain the required findings of fact and separate conclusions of law, that portion of the April 22, 2019 order must be vacated. The case is remanded with directions for the family court to enter specific written findings of fact and conclusions of law containing a best-interest analysis.
The family court denied Mother's motion for immediate return of Child but failed to find Mother had sufficient legal notice of the December 4, 2018 proceedings. Absent notice, the validity of the family court's decision to modify the then-existing joint custody and timesharing order and award Father sole custody is questioned. Because Mother was not provided notice of Father's motion to modify, it follows she did not have any opportunity to present evidence to rebut Father's allegations. See Lynch v. Commonwealth, 610 S.W.2d 902, 907 (Ky. App. 1980) ("Without service there can be no notice; without notice there can be no compliance with one's constitutional rights of due process."). Thus, the family court's finding of contempt was constitutionally deficient. Simply purging a constitutionally deficient finding of contempt is insufficient. Unfortunately, Mother neither objected to nor appealed the family court's ruling denying her motion for immediate return of Child. Thus, we are constrained to let that ruling stand.
CONCLUSION
Based on the foregoing, we vacate, in part, the April 22, 2019 order of the Laurel Family Court and remand with instructions as set forth above.
ALL CONCUR. BRIEF FOR APPELLANT: Mary-Ann Smyth
Corbin, Kentucky BRIEF FOR APPELLEE: Jennifer Caudill Bundy
London, Kentucky