Opinion
NO. 2018-CA-001634-ME
05-31-2019
SAMANTHA N. PAGE APPELLANT v. MATTHEW J. PAGE APPELLEE
BRIEFS FOR APPELLANT: Jacqueline S. Sawyers Fort Mitchell, Kentucky Nicholas A. Carter Tompkinsville, Kentucky BRIEF FOR APPELLEE: Wanda A. White Albany, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CUMBERLAND CIRCUIT COURT
HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 16-CI-00020 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, SPALDING, AND TAYLOR, JUDGES. DIXON, JUDGE: Samantha Page appeals from the Cumberland Circuit Court's orders granting Matthew Page's motions to modify timesharing and to enroll their child in Cumberland County, Kentucky, schools. Finding no error, we affirm.
The Pages' minor child was born in 2013. The parties were later married in 2014, separated in 2015, and entered into a written Separation Agreement, which was incorporated into their final decree of dissolution, in 2016. The Separation Agreement awarded the parties joint physical custody of their child and equal timesharing until the child started school, at which time Matthew was to get the child every weekend and on holidays, pursuant to the standard visitation schedule. Matthew was awarded, and still resides in, the parties' marital home. Samantha moved to Tennessee prior to entry of the final decree of dissolution but has relocated to various residences within Tennessee since that time without prior approval of the court.
In July of 2017, Matthew moved the trial court to modify the parties' timesharing with their child so that he would be designated the primary residential parent and Samantha would exercise standard visitation in accordance with the model timesharing guidelines. He also sought permission to enroll the child in Cumberland County, Kentucky, schools. The bases for Matthew's requests were the stability he offers the child, compared to the frequent changes in Samantha's residence, as well as his assertion that most of the child's family resides in Cumberland County, Kentucky.
Samantha responded, asserting that Matthew failed to file affidavits as required by KRS 403.340(2) to modify a custody decree within two years of its entry. Samantha asserted that it was not in the best interest of the child to "veer away from" the parenting schedule previously agreed upon by the parties. She also contended that many of her—and therefore her child's—family members live in Tennessee rather than in Kentucky as alleged by Matthew in his motion.
Kentucky Revised Statutes.
A hearing was held before a Domestic Relations Commissioner in August of 2017. At the hearing, Samantha admitted that she had moved at least four times in the past two years and had never notified the court of her relocation. Matthew testified that the child spent at least seventy percent of the time with him. Samantha conceded that after the dissolution of the parties' marriage in June of 2016, and until October of 2016, she allowed Matthew to have additional time with the child due to travel required by her employer. While her testimony appeared to indicate that she believed the parties' timesharing had returned to a more equal basis, Samantha testified that she was still allowing Matthew additional time with the child as recently as only a few weeks prior to the hearing.
In January of 2018, the Commissioner filed his recommended findings of fact and order determining that it would be in the child's best interest to reside primarily with Matthew and visit with Samantha pursuant to the model timesharing guidelines. The Commissioner also specifically found "equal timeshare would not be adequate given the distance [Samantha] has moved[.]" Samantha thereafter filed exceptions to the Commissioner's findings.
The trial court conducted its hearing in April of 2018. Its order adopting and approving the Commissioner's recommended findings of fact and granting modification of timesharing was entered in August of 2018. A subsequent order establishing the visitation schedule was entered two days later. Samantha moved the trial court to alter, amend or vacate its order, but her request was initially denied. The trial court thereafter entered an amended order, however, finding that Samantha's request for clarification of the visitation schedule—as it related to exchange times and locations—within her motion had merit and addressed it accordingly. This appeal followed.
Samantha presents four arguments on appeal: (1) the trial court improperly exercised jurisdiction to hear and rule on the motion to modify timesharing in the absence of two affidavits required by KRS 403.340(2); (2) the trial court's orders do not comply with the provisions of KRS 403.270, as amended effective July 14, 2018; (3) the trial court's order incorporating the Domestic Relations Commissioner's recommended order is based upon clear factual and procedural errors and is manifestly contrary to the weight of evidence; and, (4) the trial court's application of KRS 403.320(3) and the model timesharing guidelines to award "standard visitation" to Samantha were unsupported by sufficient factual findings. We will address each argument, in turn.
Samantha's first argument, that the trial court improperly exercised jurisdiction to hear and rule on the motion to modify timesharing in the absence of the two affidavits required by KRS 403.340(2), is easily resolved. The trial court correctly observed that Matthew's motion was to modify the parties' timesharing rather than custody of the child. KRS 403.340 defines "custody" as "sole or joint custody, whether ordered by a court or agreed to by the parties." The parties here agreed to joint custody in their Separation Agreement as incorporated into the final decree of dissolution of their marriage. No subsequent motions nor orders in the record before us have sought to alter this joint custody.
As the motion which is the subject of this appeal sought only to modify the parties' timesharing, the trial court correctly conducted its analysis under KRS 403.320, which provides, in part, that the "court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]" Therefore, Samantha's argument on this issue is without merit.
Moreover, Samantha's attempt to distinguish this case from Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), as modified (Oct. 24, 2008), must also fail. Samantha's quibbles concerning the terms "primary residential parent" and "visitation" were addressed by our highest court in Pennington. While it is true there are some factual differences between these two cases, the logic and analysis of Pennington are nonetheless applicable. The Pennington Court observed:
[t]he 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."
. . . .
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. 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.
. . . .
Thus, the first question on a custody modification or relocation motion is, "Is the motion actually seeking modification of custody or visitation/timesharing?"
. . . .Id., at 765, 767, 768, 769 (internal footnotes omitted).
Every 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.
Thus, in view of the foregoing, Samantha's contention that the trial court abused its discretion must likewise fail. Upon review, it is clear the trial court followed Pennington's guidance, and, therefore, it was within the trial court's discretion to modify the parties' timesharing. "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles." Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013) (citation omitted). Our review of the record reveals no abuse of discretion; therefore, we must affirm.
Second, Samantha contends that the trial court's orders do not comport with the provisions of KRS 403.270, as amended effective July 2018. In its amended order following Samantha's motion to alter, amend or vacate, the trial court found:
[t]he intervening change in the provisions of K.R.S. 403.270, which became effective with House Bill 528 on July 14, 2018, do not apply to this case and that the law in effect at the time of the hearing in this case before the
Domestic Relations Commissioner on August 30, 2017, is the law applicable to the issue before the Court. The Court further finds that it made specific findings of fact as required by the provisions of K.R.S. 403.270.
It is well-settled, "[n]o statute shall be construed to be retroactive, unless expressly so declared." KRS 446.080(3). Retroactive application of statutes will be approved only where we can be certain the General Assembly intended the statute to operate retroactively. See Commonwealth Dep't of Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000). No specific language or magic words are necessary to make a statute retroactive. "What is required is that the enactment make it apparent that retroactivity was the intended result." Baker v. Fletcher, 204 S.W.3d 589, 597 (Ky. 2006). "[T]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source." Commonwealth v. Ford, 543 S.W.3d 579, 581 (Ky. App. 2018) (quoting Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005)). Consequently, as the statute does not include language requiring retroactive application, it is apparent that the General Assembly did not intend its amendment of KRS 403.270 to apply retroactively.
However, we also recognize:
[a]s a general rule, a court must "apply the law in effect at the time it renders its decision." [Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 1486, 128 L.Ed.2d
229 (1994)] (quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)) (quotation marks omitted). Because "[r]etroactivity is not favored in the law," however, courts should not construe "congressional enactments and administrative rules . . . to have retroactive effect unless their language requires this result." Id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)) (quotation marks omitted).BellSouth Telecommunications, Inc. v. Southeast Telephone, Inc., 462 F.3d 650, 657 (6th Cir. 2006).
Samantha cites to Carpenter-Moore v. Carpenter, 323 S.W.3d 11 (Ky. App. 2010) to support her position that the amended statute should be applied. However, this case differs significantly. In the instant case, a final hearing was held prior to the amendment of the statute at issue. In Carpenter-Moore, no final hearing had been held when the intervening change in law involving new judicial precedent (Pennington) was decided.
We further note that the amendment to KRS 403.270 here merely provides a presumption that equally shared parenting time is in the best interest of the child. In this case, the trial court specifically found equal timeshare would not be adequate due to the distance between the parties' residences. Thus, even if the trial court did err in its refusal to apply the amended provisions of KRS 403.270 to this case, such error was harmless.
Third, Samantha contends that the trial court's order incorporating the Domestic Relations Commissioner's recommended order is based on clear factual and procedural error and is manifestly contrary to the weight of evidence. However, the trial court has complete discretion regarding the use of a Commissioner's report. Haley v. Haley, 573 S.W.2d 354, 356 (Ky. App. 1978). The Supreme Court of Kentucky has conclusively stated that the trial court has broad discretion in actions relying upon Commissioner's reports, constrained only by the pertinent Rules of Civil Procedure. Eiland v. Ferrell, 937 S.W.2d 713 (Ky. 1997). Pursuant to CR 53.05(2), "[t]he court after hearing may adopt the report, or may modify it, or may reject it in whole or in part, or may receive further evidence, or may recommit it with instructions." The Commissioner acts only to further judicial economy by assisting the trial court; the Commissioner's report is a recommendation and is not binding. The trial court itself makes findings of fact and has the authority to adopt, modify, or reject the recommendations of the Commissioner. 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.
Kentucky Rules of Civil Procedure.
The standard of an appellate court's review of a trial court's findings of fact is also well-settled.
The trial court heard the evidence and saw the witnesses. It is in a better position than the appellate court to evaluate the situation. Gates v. Gates, [412 S.W.2d 223 (Ky. 1967)]; McCormick v. Lewis, [328 S.W.2d 415, (Ky. 1959)]. The court below made findings of fact which may be set aside only if clearly erroneous. Hall v. Hall, [386 S.W.2d 448 (Ky. 1964)]; CR 52.01, 7 Kentucky Practice, Clay 103. We do not find that they are. They are not "manifestly against the weight of evidence." Ingram v. Ingram, [385 S.W.2d 69 (Ky. 1964)]; Craddock v. Kaiser, [280 Ky. 577, 133 S.W.2d 916 (Ky. 1939)]. A reversal may not be predicated on mere doubt as to the correctness of the decision. Buckner v. Buckner, [295 Ky. 410, 174 S.W.2d 695 (Ky. 1943)]. When the evidence is conflicting, as here, we cannot and will not substitute our decision for the judgment of the chancellor. Gates v. Gates, supra; Renfro v. Renfro, [291 S.W.2d 46. (Ky. 1956)].Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967) (emphases added).
[T]he dispositive question that we must answer, therefore, is whether the trial court's findings of fact are clearly erroneous, i.e., whether or not those findings are supported by substantial evidence. "[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). (internal footnotes omitted). Accordingly, the crux of Samantha's third argument is whether the trial court's findings of fact are supported by substantial evidence. On careful review, we hold that the trial court's findings are indeed supported by substantial evidence. Therefore, we must affirm.
The first factual finding with which Samantha takes issue is the reference to her "unauthorized" relocation. At the time Samantha filed her petition for dissolution of marriage in March of 2016, she resided in Burkesville, Kentucky. By the time she filed her deposition on written questions in May of 2016, she had relocated to Byrdstown, Tennessee. This was the same residence noted in the decree of dissolution of the parties' marriage. The distance from the marital residence was approximately 40 miles. Samantha neither provided notice to Matthew nor requested approval from the court for her relocations—she admitted relocating four times between her filing of the petition and the August 2017 hearing. The distance from the marital residence and her residence in Cookeville, Tennessee, at the time of the hearing was over 60 miles. Samantha asserts that she did not seek permission to relocate her residence "to Tennessee" because she had "always resided there" since prior to the decree of dissolution, stating it was "inconceivable" for the trial court to find an "unauthorized" relocation. We disagree.
Despite Samantha's argument to the contrary, she does not dispute that controlling family court rules clearly require the necessary notification of intent to relocate to the court and opposing party. In pertinent part, FCRPP 7 provides that "[b]efore a joint custodian seeks to relocate, written notice shall be filed with the court and served on the non-relocating joint custodian." Samantha does not claim compliance with this rule. Moreover, while Samantha asserts the increase in distance has caused no inconvenience to Matthew, it was proper for the court to consider the distance between the parties' residences in modifying their timeshare. If the courts were to adopt Samantha's logic, parents could move great distances without consequence, rendering FCRPP meaningless. Consequently, we cannot say this finding was erroneous.
Family Court Rules of Practice and Procedure. --------
The second factual finding with which Samantha takes issue is that both parties admitted that Matthew had the child 75 percent of the time since entry of the decree of dissolution. Matthew testified that he had the child at least 70 percent of the time since the decree of dissolution. While Samantha implicitly denied Matthew's testimony on this point, Matthew's testimony nevertheless constitutes substantial evidence; therefore, we cannot say this finding was erroneous. It was not an abuse of discretion for the trial court to round this percentage up from "at least seventy percent" to 75 percent. Moreover, any error on this point was harmless. Samantha also conceded that Matthew had the child during Samantha's time, both initially after the decree was entered and even a few weeks prior to the hearing. As previously noted, while Samantha's testimony could be construed to indicate that she believed timesharing had returned to an equal or nearly equal amount, her testimony on this point was vague and contradictory.
The third factual finding with which Samantha takes issue is that Matthew testified that "most of his immediate family has a great relationship with the minor child and they all live in Cumberland County[.]" This is consistent with Matthew's testimony and constitutes substantial evidence; consequently, we cannot say this finding was erroneous. Also included in the findings was the fact that Samantha testified that her family is in Cookeville, Tennessee, and their relationship with the minor is growing. This is consistent with her testimony. The trial court did not ignore Samantha's testimony, which was accurately reflected in its findings.
The fourth factual finding with which Samantha takes issue is that Matthew alleged that Samantha moved at least seven times within a year and a half. Review of the trial court record reveals that Matthew testified to such. The factual findings further noted Samantha's admission that she had relocated four times during that period. The trial court was well within its discretion to determine credibility of witnesses. As there was substantial evidence to support the trial court's finding, we cannot say such was erroneous.
The fifth factual finding with which Samantha takes issue is her admission that in at least one of her recent residences, she lived with a boyfriend and had to move due to a breakup. Samantha does not deny the accuracy of the finding but, rather, she queries why it was included when no specific finding was included regarding Matthew's testimony that his girlfriend was residing with him at the time of the hearing. While we are unable to read into the trial court's reasoning, its findings were nevertheless sufficient without the specific addition of this admitted fact. Thus, it was not error for the trial court to omit this information.
The sixth factual finding with which Samantha takes issue is that the child "lived in Cumberland County since its birth and has moved to Tennessee with the mother part time." Samantha counters with the unsupported statement that the child "has always resided with the Appellant/Mother in Tennessee during all periods of the Mother's equal parenting time." However, Samantha's assertion is not borne out by the record. At the time Samantha filed her petition, the parties and their child resided in Cumberland County, Kentucky. In her deposition upon written question submitted in May of 2016, Samantha had relocated to Tennessee. The final decree was entered the following month. It was the testimony of both parties that their child only lived part-time with Samantha following the entry of the decree. Therefore, while Samantha's contention is not supported by the evidence, there is substantial evidence to support the factual findings of the trial court.
Lastly, Samantha contends that the trial court's application of KRS 403.320(3) and the model timeshare guidelines to award "standard visitation" to Samantha was unsupported by sufficient factual findings. The trial court's application of KRS 403.320(3) was previously discussed in the portion of our opinion pertaining to Samantha's first argument; therefore, only the parts of this fourth argument which are not redundant of the first will be addressed in this portion of our opinion.
In support of her argument, Samantha cites KRS 403.320(3), which states, in its entirety: "[t]he 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." As used in this statute, "restrict" means "to provide the non-custodial parent with something less than 'reasonable visitation.'" Kulas v. Kulas, 898 S.W.2d 529, 530 (Ky. App. 1995). The instant case is distinguishable, however. First, the parties herein have joint custody; therefore, there is neither a "custodial parent" nor a "non-custodial parent." Secondly, the trial court specifically found "equal timeshare would not be adequate given the distance [Samantha] has moved[.]" In this case, like Hudson v. Cole, 463 S.W.3d 346 (Ky. App. 2015), it is the parties' living arrangements which restrict visitation, not arbitrary whims of the trial court.
Samantha acknowledges:
"reasonable visitation" is a matter which must be decided based upon the circumstances of each parent and the children, rather than any set formula. When the trial court decides to award joint custody, an individualized determination of reasonable visitation is even more important. A joint custody award envisions shared decision-making and extensive parental involvement in the child's upbringing, and in general serves the child's best interest. Squires v. Squires, [854 S.W.2d 765, 769 (Ky. 1993)]. Thus, both parents are considered to be the "custodial" parent, although the trial court may designate where the child shall usually reside. Aton v. Aton, [911 S.W.2d 612 (Ky. App. 1995)]. The "residential" parent does not have superior authority to determine how the child will be raised, and major decisions concerning the child's upbringing must be made by both parents. Burchell v. Burchell, [684 S.W.2d 296, 299 (Ky. App. 1984)]. A visitation schedule should be crafted to allow both parents as much involvement in their children's lives as is possible under the circumstances.Drury v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000). However, Samantha fails to recognize that a trial court's use of a standardized visitation schedule is not automatic grounds for reversal, even in a case involving an award of joint custody. Id. at 525. We will only reverse a trial court's determination as to visitation if it constitutes a manifest abuse of discretion or is clearly erroneous in light of the facts and circumstances of the case. Wilhelm v. Wilhelm, 504 S.W.2d 699, 700 (Ky. 1973). The evidence of record here supports the findings that the child has always resided in Cumberland County, Kentucky, with part-time visitation with the mother. It was not error for the trial court to find that equal timesharing was not reasonable due to the circumstances presented in this case—primarily the substantial distance between the parties' residences. As in Kulas and Hudson, the trial court was not required to make a specific finding that the child was endangered in order to exercise its discretion in modifying the parties' timeshare.
For the foregoing reasons, the judgment of the Cumberland Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Jacqueline S. Sawyers
Fort Mitchell, Kentucky Nicholas A. Carter
Tompkinsville, Kentucky BRIEF FOR APPELLEE: Wanda A. White
Albany, Kentucky