Opinion
NO. 2013-CA-001995-ME
06-06-2014
JUDY CARBALLO (NOW LOPEZ) APPELLANT v. CESAR CARBALLO APPELLEE
BRIEF FOR APPELLANT: Dace Alexandria Lubans-Otto Florence, Kentucky BRIEF FOR APPELLEE: Rene B. Heinrich Newport, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT
HONORABLE A. BAILEY TAYLOR, JUDGE
ACTION NO. 05-CI-01706
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Judy Carballo (now Lopez) appeals from the Kenton Family Court's October 31, 2013 order granting Cesar Carballo's motion to modify custody, thereby awarding Cesar sole custody of the parties' minor child. Because we find the family court failed to make certain essential factual findings, we reverse and remand with directions.
Cesar and Judy married on October 12, 2002. One child, Annastasia Marie Carballo, was born of the marriage in 2003. Two years later, Judy petitioned to dissolve the marriage. The parties entered into a separation agreement by which the parties agreed Judy would have sole custody of Annastasia with Cesar having weekly visitation.
Until at least this point in time, both parties resided in Kentucky.
On September 15, 2009, the family court entered a decree dissolving the marriage. The decree of dissolution incorporated the parties' separation agreement, modified to reflect the parties' revised agreement that Cesar was to have visitation on alternate weekends and designating a specific exchange point in Florence, Kentucky. The decree's certificate of service reflects that Cesar had relocated to Harrison, Ohio.
Judy asserts Cesar subsequently moved from Ohio to Lawrenceburg, Indiana. Cesar's brief does not indicate his residence at any time, then or now.
On January 12, 2012, Cesar filed a motion for a change of custody in Kenton Family Court. The motion sat dormant; no action was ever taken by Cesar, Judy, or the family court regarding the motion.
More than a year later, in late September 2013, Judy relocated with Annastasia to Texas. Cesar claims Judy did so without notifying him and without regard to his visitation rights and relationship with Annastasia. In response, Cesar filed an ex-parte motion for contempt and emergency custody on October 8, 2013. Because Judy's Texas address was not known to Cesar, he purportedly mailed a copy of the motion to Judy at her last known Kentucky address.
The next day, October 9, 2013, the family court entered an ex-parte order granting Cesar temporary custody of Annastasia. In that same order, the family court scheduled a full custody hearing for October 22, 2013. The order's certificate of service indicates it was sent to Judy, but does not indicate to what address it was mailed.
At the custody hearing, the family court stated on the record that the court had jurisdiction and that it was awarding Cesar permanent sole custody of Annastasia. No testimony was taken or evidence received. Judy did not appear. However, a few days later, on October 29, 2013, Judy filed, pro se, notice of her new address and a motion requesting that the family court schedule a hearing date that, to the extent practicable, corresponded with Annastasia's upcoming school breaks. It is unclear to which of Cesar's motions, if any, Judy was responding.
The family court entered an order on October 31, 2013 memorializing its October 22, 2013 oral ruling from the custody hearing, thereby granting Cesar sole permanent custody of Annastasia. From this order, Judy appeals.
Judy presents two arguments to this Court. First, she argues the family court lacked jurisdiction to entertain Cesar's motion to modify custody. Second, she claims she was deprived of a meaningful opportunity to be heard, that no evidence related to Annastasia's best interests was presented to the family court, and that the family court failed to consider the statutory factors and make adequate findings of fact. Judy's arguments have merit.
In 2004, Kentucky adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Coffey v. Wethington, 421 S.W.3d 394, 397 (Ky. 2014); Kentucky Revised Statutes (KRS) 403.800, et seq. KRS 403.824 "governs a court's exclusive, continuing jurisdiction to modify a child custody determination." Wahlke v. Pierce, 392 S.W.3d 426, 429 (Ky. App. 2013). Pursuant to that statute, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction until:
(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; orKRS 403.824(1).
(b) A court of this state or a court of another state determines that the child, child's parents, and any other person acting as a parent do not presently reside in this state.
As applied to this case, the Kenton Family Court, which undoubtedly had original jurisdiction, retains exclusive and continuing jurisdiction until one of two circumstances are determined by the family court to have occurred - "neither [Annastasia] nor a parent of the child [Judy or Cesar] has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child [Annastasia] nor the parents of the child [Judy and Cesar] reside in that state." Wahlke, 392 S.W.3d at 430. "A family court's jurisdiction to modify custody is determined at the time the motion to modify is filed." Id. at 429.
Furthermore, "[a] court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under KRS 403.822." KRS 403.824(2).
The record reveals the possibility that when Cesar filed his ex-parte motion to modify custody on October 8, 2013, neither Annastasia nor Judy, nor Cesar, resided in Kentucky. However, due to the sparse nature of the record, we are unable to make a meaningful jurisdiction determination. The family court is in the superior position to gather the necessary facts to ascertain whether it properly exercised jurisdiction when it granted Cesar's motion. Accordingly, we are compelled to remand this case for the family court to apply KRS 403.824 and to enter additional findings consistent with that statute and with Wahlke. If the family court determines that it lacked jurisdiction, it shall set aside its order modifying custody.
It is without question that the family court was vested with jurisdiction when Cesar filed his original motion to modify custody on January 12, 2012, because, at that time, Annastasia and Judy still resided in Kentucky. However, at no point did Cesar seek a ruling on that motion or resurrect it by re-noticing the motion. Cesar abandoned it.
If the family court determines that it properly exercised jurisdiction on the date Cesar filed his motion, it still has work to do. As noted, the family court took no evidence at the October 22, 2013 hearing. Furthermore, the order entered on October 31, 2013, is inadequate under the statute.
When considering a motion to modify custody filed more than two years after the date of the custody decree, such as the one in this case, the family court must take evidence sufficient to evaluate whether a change of custody is in the child's best interests. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). The best-interests evaluation must include consideration of several statutory factors identified in KRS 403.340(3) and 403.270(2). Further, Kentucky Rule of Civil Procedure (CR) 52.01 requires "the family court to engage in a good faith effort at fact-finding and to include those facts in a written order." Murry v. Murry, 418 S.W.3d 432, 435 (Ky. App. 2014); Hicks v. Halsey, 402 S.W.3d 79, 84 (Ky. App. 2013) ("[I]n custody matters, the findings must be in writing."). Without such there can be no meaningful review by this Court. Additionally, the order will not be affirmed on appeal unless the findings of fact that the family court must include in its order are supported by substantial evidence.
Here, the family court's order makes no mention of the statutory factors, directly or indirectly, contains no factual findings, and does not indicate which legal standard it applied. Recent Kentucky appellate decisions have addressed this situation. Notably, in Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011), the Kentucky Supreme Court unequivocally stated that trial courts have a non-optional duty "to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions" Id. at 125. A trial court that modifies custody without engaging in the mandated statutory analysis and without reducing its required findings to writing has committed clear error. Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008). Simply put, "[a] bare-bone, conclusory order . . . setting forth nothing but the final outcome, is inadequate[.]" Keifer, 354 S.W.3d at 124 ("[T]rial court opinions affecting child custody [must] state the court's findings in support of its decision in writing.").
The family court's order modifying custody in this case contains a one-sentence conclusion - "[s]ole custody of Annastasia Carballo is immediately granted to her Father Cesar Carballo, making all prior orders of this court void." The order is insufficient and cannot stand. Keifer, 354 S.W.3d at 124.
For the foregoing reasons, we reverse the Kenton Family Court's October 31, 2013 order and remand for additional proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Dace Alexandria Lubans-Otto
Florence, Kentucky
BRIEF FOR APPELLEE: Rene B. Heinrich
Newport, Kentucky