Opinion
NO. 2016-CA-000714-ME
01-20-2017
CANDICE GILLEY APPELLANT v. JAMES GILLEY APPELLEE
BRIEF FOR APPELLANT: Michael de Bourbon Pikeville, Kentucky BRIEF FOR APPELLEE: William Sidney Trivette Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE LARRY E. THOMPSON, JUDGE
ACTION NO. 14-CI-00388 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Candice Gilley appeals from the Pike Circuit Court order amending the custodial arrangement between her and her ex-spouse, James Gilley. We vacate and remand for further factual findings.
Candice and James were married in 2001. They are the parents of twin sons born in 2009. The parties separated in September 2012, and Candice filed a petition for dissolution of marriage in November of that year. James did not contest the petition nor did he employ separate counsel. The parties were able to reach agreements on all matters pertaining to the dissolution of their union. Specific to this appeal is the agreement concerning custody of the twins, namely: Candice and James were to be joint custodians with Candice as the primary residential custodian. She and James agreed to share equal time with the children. And Candice was permitted to claim both children for tax filing purposes. The final decree was entered in February 2013.
Candice and James adopted the twins when the boys were eighteen months old; prior to that the Gilleys had fostered the children.
Although there were a few minor adjustments to the visitation schedule, the custody arrangement worked for the next year and a half. However, in early 2015 Candice lost her job with AIG Insurance Company. Because of the termination's non-compete clause, she was forced to work a fairly good distance away. Unable to find closer opportunities, she accepted employment in Franklin, Tennessee, and began to split her time between there and Pike County, Kentucky.
On July 1, 2015, Candice filed a "Notice of Relocation" accompanied by various motions relating to child custody, visitation, and support. The purpose of Candice's Notice was to make the trial court aware of her employment situation and that she wished to revise the visitation schedule to where she and James would each have the children for alternating weeks at a time. Candice felt that such an arrangement would be more stable for the boys and also ease her schedule and her expenses. (The travel time to and from Franklin was twelve hours, round trip.) Candice clarified that she had no intention of relocating the twins, only herself.
James countered with motions of his own: He sought a modification of custody, moved to claim the children on his tax returns, and also requested that he be given the children's $1,500.00 per month state stipend the couple received as adoptive parents. Several hearings were held on the motions, the final one being on March 16, 2016. The trial court made oral findings and conclusions from the bench and requested that James's attorney reduce them to writing.
On March 18, 2016, the trial court entered an order which changed primary residential custody of the boys to James, granted Candice standard (rather than equal) visitation, and awarded James the $1,500.00 monthly allotment. The ruling did not indicate which parent would be permitted to claim the children on income tax returns. Candice moved to alter, amend, or vacate, requesting that the trial court make findings of fact pursuant to Kentucky Rules of Civil Procedure (CR) 52.01. The trial court entered its amended order on April 20, 2016, from which Candice appeals. The appeal was ordered expedited by this Court on June 20, 2016.
Following the trial court proceedings, Judge Thompson disqualified himself on the grounds that Candice's father is his neighbor. Judge Dwight Stacy Marshall was named as Special Judge for any further proceedings. --------
Candice first argues that the trial court's findings were clearly erroneous. She states that the trial court's ruling regarding the visitation schedule was based on a single incident (namely, that she posted on social media a nearly nude photograph of the two boys shortly after they had exited a swimming pool), and the ruling is thus not supported by substantial evidence. She cites CR 52.01 as well as several appellate court cases in support of this argument.
We have examined the record, including the videotaped hearings, in its entirety. While we do not agree with Candice that the trial court used an inappropriate and isolated incident upon which to base its ruling, we do hold that additional findings of fact should have been made. There were several hearings, including separate interviews with each child, over a six-month period; at its final hearing, the trial court verbalized multiple reasons for its decision to change the custodial parent but afterward left it up to James's counsel to draft the order. Although we recognize that this is accepted practice among many trial courts, in this instance the order and amended order fall far short of an appropriate family court ruling. The trial court did emphasize its disapproval of the mother's inappropriate posting of the nearly nude photo, but stated other reasons for the ruling, none of which are included in either the initial order or the amended order. "CR 52.01 requires that the judge engage in at least a good faith effort at fact-finding and that the found facts be included in a written order." Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). For this reason we vacate and remand for further findings based upon the testimony and evidence elicited in the hearings and included in the record. Boone v. Boone, 463 S.W.3d 767 (Ky. App. 20015).
Candice secondly argues that the trial court erred in failing to consider the factors enunciated in Kentucky Revised Statute (KRS) 403.270(2) and (3) in its decision to modify the terms of the custody and visitation agreement. We direct the trial court to consider these factors in its expanded findings of fact upon remand.
Candice lastly argues that the trial court abused its discretion in the joinder of both parties' motions. The joinder, she claims, resulted in "uncharacteristic chaos" including prejudicial time constraints regarding testimony and the consideration of inadmissible evidence. We fail to see how addressing each of the parties' motions in separate proceedings would have resulted any differently other than to take up even more of the court's limited resources. We find no abuse of discretion in this regard.
We vacate the orders on appeal and remand this matter to the Pike Circuit Court for entry of written findings.
ALL CONCUR. BRIEF FOR APPELLANT: Michael de Bourbon
Pikeville, Kentucky BRIEF FOR APPELLEE: William Sidney Trivette
Pikeville, Kentucky