Opinion
NO. 2019-CA-000970-ME
01-31-2020
TAWANA ELKINS APPELLANT v. SCHYLER ELKINS APPELLEE
BRIEFS FOR APPELLANT: R. Stephen McGinnis Greenup, Kentucky BRIEF FOR APPELLEE: Jeremy L. Clark Catlettsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 15-CI-00377 OPINION
REVERSING AND REMANDING
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BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. KRAMER, JUDGE: Tawana Elkins ("Mother") appeals from an order of the Greenup Family Court that permitted her ex-husband, Schyler Elkins ("Father"), to relocate to Florida with the parties' two minor children without holding a hearing to address her visitation schedule. Upon careful review, we reverse and remand for proceedings not inconsistent with this opinion.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
The parties were married in 2011, and two minor children were born of the marriage. Father filed for divorce in August 2015. In the year prior to the entry of the decree of dissolution of marriage, the parties were before the family court on numerous occasions regarding custody and visitation of the children. The Cabinet for Health and Family Services became involved due to Mother's substance abuse issues and thereafter developed a prevention plan which required supervision of Mother's visitation with the children. Although the parties agreed to joint custody, Mother's visitation with the children was still supervised when the decree of dissolution was entered on August 9, 2016.
Just over two weeks after the entry of the decree, Father filed a motion for emergency custody of the children, citing Mother's recent arrest, substance abuse issues, and other allegedly troubling behavior by Mother. The family court denied the emergency motion. The Cabinet continued its involvement and eventually filed dependency, neglect, and abuse ("DNA") petitions in the family court. The record before us indicates that Father was awarded sole custody of the children in the DNA action in October 2016. A docket sheet in the divorce/custody proceedings dated November 21, 2016, signed by the family court stated, in relevant part, that Mother's attorney at the time indicated Mother had "no problem with custody to Father."
The records from the DNA proceedings are not part of the record before this Court; however, the proceedings are frequently referred to in the pleadings contained in the record before us.
The parties continued to file various contentious motions. The record before us shows that Mother was in at least two drug rehabilitation facilities and that the court issued a no-contact order with the children. By August 2017, Mother was incarcerated on various felony convictions. The family court appointed a guardian ad litem and ordered counseling for the children in response to Mother's motion requesting that the children be allowed to visit her at the Greenup County Detention Center. The family court held a hearing on November 7, 2017, and subsequently entered an order denying Mother's request to lift the no-contact order.
The record also shows that numerous motions were also filed by the paternal grandfather and maternal grandmother regarding their respective contact with the children.
Although the record before us is not entirely clear, it appears that Mother attended a rehabilitation program in December 2016. (See Mother's motion filed December 21, 2016 which states, in relevant part, that Mother had "completed her rehabilitation and is going through routine drug testing and counseling as well[.]") In another motion filed by Mother on March 31, 2017, she requested that the children be allowed to visit her at another rehabilitation facility.
Mother was granted shock probation in December 2017. In February 2018, Mother filed a motion again requesting that the family court lift the no-contact order and allow the children to visit her at the Hope Center in Lexington, Kentucky. The family court denied the motion. In May 2018, Mother again motioned the family court to lift the no-contact order. The parties submitted an agreed order prior to the scheduled hearing date that allowed Mother one hour of supervised visitation per week upon proof of a clean hair follicle and urine drug screen. In November 2018, the parties again submitted an agreed order expanding Mother's visitation with the children to four hours each Monday after school. Mother's visitation remained supervised. In January 2019, Mother filed a motion seeking unsupervised visitation with the children.
A hearing was held on March 18, 2019. In an order entered on March 20, 2019, the family court removed the supervision requirement and expanded Mother's visitation to include every Monday for four hours after school and every other Saturday from noon until 6:00 p.m. In making its ruling, the family court found that Mother had not had any probation violations and had passed all drug screens since December 2017. The family court further found that Mother was working at AIM Behavioral Health and attending group therapy with other addicts through her employment. The children had attended therapy and were released approximately one month prior to the hearing. Finally, the family court found that it was in the best interest of the children to increase Mother's visitation.
The family court also ordered that the maternal grandmother and Mother's fiancé have no contact with the children.
Less than two months after the family court expanded Mother's visitation, Father filed a motion to relocate. Father sought permission from the family court to move the children to Lake Mary, Florida, because he had accepted new employment. Mother filed an objection and requested a hearing and enough time to conduct discovery. The family court entered an order denying Mother's motion. Mother filed a motion to alter, amend, or vacate the family court's order and requested a hearing regarding her visitation with the children pursuant to FCRPP 7. Mother's motion was denied by the family court. This appeal followed.
Kentucky Family Court Rule of Procedure and Practice.
Mother argues that she is entitled to a hearing to adjust the amount and frequency of her visitation and that she is entitled to full unsupervised visitation. Father argues that the family court did not err in failing to grant a hearing regarding visitation because the family court had just conducted a hearing less than two months prior. We agree with Mother that she is entitled to a hearing regarding her visitation with the children.
The case of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) is controlling in this matter. The Kentucky Supreme Court stated therein that "[t]he first question on a . . . relocation motion is, 'Is the motion actually seeking modification of custody or visitation/timesharing?'" Id. at 768. Father has sole custody of the children. Therefore, by requesting permission to relocate, he was actually seeking modification of Mother's visitation. Obviously, Mother's limited visitation of Mondays after school and every other Saturday for six hours would be impacted by moving the children from Kentucky to Florida. However, the family court did not treat Father's motion as a motion to modify Mother's visitation and simply allowed Father to relocate the children without addressing visitation.
Pennington further instructs that
[i]n 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. . . . 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 [visitation] based on the best interests of the child[.]Id.
Kentucky Revised Statute.
For further clarification, we look to KRS 403.320(1), which states:
A parent not granted custody of the child and not awarded shared parenting time under the presumption specified in KRS 403.270(2), 403.280(2), or 403.340(6) 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.
Per the order entered on March 20, 2019, the family court clearly reasoned that visitation would not "endanger seriously the [children's] physical, mental, moral, or emotional health" because it found that increasing Mother's visitation would be in the best interest of the children. However, less than two months later, without additional evidence and without additional findings of fact, the family court entered an order stating, in relevant part,
IT IS HEREBY ORDERED AND ADJUDGED that the Motion to Relocate is SUSTAINED. The Court has had numerous hearings in regard to custody and visitation of [Mother] with the children. [Mother] only recently was allowed unsupervised visits with the children. [Father] was allowed to relocate previously because of employment with no objection. [Father] has sole custody of the children and [Mother] has had limited contact with them.(Emphasis in original.)
The COURT FINDS that it is in the best interest of the children to allow [Father] to relocate with the children. The Court has taken the entire Court file and the previous hearings into consideration in arriving at this decision.
The record before us shows that Father had successfully motioned the family court to move to Scott County for employment during the proceedings. However, at the time the motion to relocate was filed in May 2019, Father was working in Huntington, West Virginia. In his testimony before the family court on March 18, 2019, Father was again living in Greenup County, Kentucky. --------
Mother does not argue that the relocation was not in the best interest of the children. Nor is Mother seeking a change of custody. However, the family court expanded Mother's visitation in March 2019, then effectively ended it in May 2019, when it permitted Father to relocate the children to Florida without conducting a hearing regarding Mother's visitation. Pennington and KRS 403.320 are clear: Mother is entitled to reasonable visitation unless the family court makes a finding that it is not in the best interest of the children. The family court did not make such a finding. Indeed, the family court could not have made such a finding in May 2019, because it had no additional evidence before it that would have produced a result opposite of its March 2019 ruling.
Father argues that
[Mother] has visitation in this matter. She need only get herself to Florida in order to exercise it. If she wants to have the visitation frequently, there is nothing stopping her from moving to Florida and exercising it as set forth in the court's order. This, however, it appears she is unwilling to do and would rather continue to flail about in the custody proceeding in Greenup Family Court.
Father's assertion that Mother should travel a minimum of twelve hours to Florida to visit the children for four hours each Monday and six hours every other Saturday is absurd. Not only is the distance too great for anyone to exercise visitation on a weekly basis, Mother is currently on probation for felony offenses which would likely affect her ability to travel out of Kentucky at all to visit the children.
This Court is not making light of Mother's past behavior nor the effect it has had on the children. However, Pennington dictates that the family court treat Father's motion to relocate as a motion to modify Mother's visitation. This Court will only reverse a trial court's determinations as to visitation if they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case. Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). The family court abused its discretion when it expanded Mother's visitation in March 2019, then effectively ended it in May 2019, when it permitted Father to relocate to Florida without conducting a hearing to address Mother's visitation or making additional findings of fact that visitation with Mother is not in the best interest of the children.
Accordingly, we reverse the order of the family court denying Mother's motion for a hearing regarding her visitation and remand for further proceedings not inconsistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: R. Stephen McGinnis
Greenup, Kentucky BRIEF FOR APPELLEE: Jeremy L. Clark
Catlettsburg, Kentucky