Opinion
NO. 2016-CA-001643-ME
02-16-2018
CURTIS HALL, JR. APPELLANT v. CLARK MIDDLETON & TERESA MIDDLETON APPELLEES
BRIEFS FOR APPELLANT: William D. Tingley Louisville, Kentucky BRIEF FOR APPELLEES: Kellie D. Wilson Harlan, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 05-CI-00007 OPINION
VACATING & REMANDING
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BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES. JONES, JUDGE: Appellant, Curtis Hall, Jr., brings this appeal challenging an order of the Harlan Circuit Court changing the primary residential custodian of his child, K.L.H., from him to the child's maternal great-aunt and uncle, Clark and Teresa Middleton. Following review of the record, we vacate and remand.
Judge Janet Stumbo concurred in this opinion prior to retiring from the Kentucky Court of Appeals effective December 31, 2017. Release of this opinion was delayed by administrative handling.
I. BACKGROUND
K.L.H. ("Child") was born to Curtis Hall, Jr. ("Father") and Jennifer Smith ("Mother") in December of 2003. Due to Mother's drug addiction and Father's incarceration in the county jail, Mother voluntarily left the child in the care of her aunt and uncle, the Middletons, in May of 2004. Fearful that Mother would come to collect Child and put her in an unsafe environment, the Middletons filed a petition for emergency custody of Child, which was granted in January of 2005. Both Mother and Father expressed their desires to reform their lives and regain custody of Child. Therefore, in February of 2005, an agreed order was entered by which the Middletons were to have temporary custody of Child, and Mother and Father were allowed supervised visitation. Mother and Father were subsequently ordered to submit to weekly drug screenings and told that, if those screenings continually came back negative, their visitation with Child would be increased to a standard visitation schedule. While Mother and Father were initially compliant with their drug screenings, in July of 2006 the Cabinet for Health and Family Services (the "Cabinet") informed the court that it had lost contact with both parents.
Subsequently, Father began to get his life back on track. In November of 2008, the Court allowed him to resume visitation with Child, which was to be supervised by Child's paternal grandmother, who had moved to intervene in the case and had been granted visitation with Child. By agreed order entered May 13, 2009, Father and the Middletons were granted joint custody of Child. In May and June of 2011, Father moved the trial court for an order either granting him sole custody of Child or designating him as Child's primary residential custodian. In his motions, Father indicated that he was soon to be remarried, at which point he would be relocating to Bell County. The Middletons objected to Father's motions, alleging that Father was attempting to alienate them from Child. In July of 2011, the Middletons also filed a motion for change of custody, requesting that they be named Child's primary residential custodians and that Father have visitation with Child pursuant to the standard visitation schedule. A docket entry indicates that these motions were heard on August 16, 2011; however, there is no record of an order being entered until January 18, 2012. Therein, the trial court indicated that Father and the Middletons should continue to share joint custody of Child.
That order further indicated that Mother was to have no visitation with Child. Mother has not appeared in the case since 2005 and she is not a party to this appeal.
Following a review hearing, the trial court entered a new custody order on August 7, 2012. In that order, the court stated that it found that Father was in a stable relationship and that his timesharing with Child had gone well. Therefore, the court found that it was in Child's best interests to live with her natural parent and designated Father as Child's primary residential custodian. The order further stated that the Middletons were to enjoy the same visitation schedule as Father had before the custodial change. The trial court designated the August 7, 2012, order as final and appealable.
While none of the parties appealed the trial court's order designating Father as Child's primary residential custodian, its entry was followed by an extraordinary amount of motion practice on the part of both the Middletons and Father over the following year. The bulk of the motions include the Middletons moving the trial court to hold Father in contempt, Father's motions to reduce the Middletons' visitation with Child, and both parties' motions to amend the custody order. All motions were denied. In September of 2013, upon the Middletons' motion, a guardian ad litem ("GAL") was appointed to represent Child's best interests. The GAL filed a report with the court in November of 2013; however, in that report the GAL stated that he was unable to make a recommendation to the trial court as he felt that Child's best interests would be served by either Father or the Middletons.
Following entry of the GAL report, Father made two CR 60.02 motions to alter, amend, or vacate the trial court's orders of May 13, 2009, which granted Father and the Middletons joint custody of Child, and August 7, 2012, which designated Father as Child's residential custodian and allowed the Middletons to have visitation with Child. Father requested the trial court to terminate the joint-custody arrangement between the Middletons and himself and award Father sole custody of Child. In their response, the Middletons argued that, not only was it not legally permissible for the trial court to strip them of their custodial rights of Child, it was not in Child's best interests to do so. The Middletons additionally moved the trial court to issue CR 11 sanctions against Father.
Kentucky Rules of Civil Procedure.
The trial court entered an order concerning all motions on January 3, 2014. In that order, the trial court discussed the Middletons' standing to pursue custody under the analysis set out in Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). In Moore, the Supreme Court of Kentucky held that custody disputes between a parent and a nonparent, who has not been adjudged a de facto custodian, "are determined under a standard requiring the nonparent to prove that the case falls within one of two exceptions to parental entitlement to custody." Id. at 359. Those exceptions can arise if either: (1) the parent is "shown to be 'unfit' by clear and convincing evidence" or (2) "the parent has waived his or her superior right to custody." Id. The trial court determined that the Middletons had made the showing that Father was unfit when the initial emergency custody order was granted in 2005 and that Father had waived his superior custodial rights to Child when he entered into the agreed orders with the Middletons allowing for joint custody. Therefore, the trial court found that the Middletons were legally entitled to joint custody of Child and denied all pending motions. Father moved to alter, amend, or vacate the trial court's order on January 13, 2014, arguing that he had not waived his superior parenting rights of Child. That motion was denied.
Following several motions by both parties that were either continued, passed, or remanded to the Domestic Relations Commissioner ("DRC"), Father moved the court on August 11, 2016, to enter a standard or semi-standard visitation order for the Middletons. By that motion, Father alleged that the current visitation order had been subject to conflicting interpretations by the parties, and argued that setting a standard visitation order would be in Child's best interests as it would eliminate the continuous confusion and conflict between the Middletons and himself. On September 16, 2016, the Middletons responded in objection to Father's motion to change visitation and filed a separate motion for change of custody. In their response to Father's motion to alter the visitation schedule, the Middletons argued that Father was again trying to alienate them from Child and that, as they had joint custody of Child, they should be allowed to continue with the current visitation schedule. In their motion to change custody, the Middletons requested the court to continue the joint-custody arrangement, but to designate them as Child's primary residential custodian with Father having standard visitation. The Middletons expressed their belief that such arrangement would be in Child's best interests, as they had enjoyed a relationship with Child since her infancy and had been Child's primary caregivers for majority of her life. The Middletons did not attach any affidavits to their motion.
On July 21, 2015, the trial court entered an order indicating that it was remanding all visitation matters to the DRC. The order further indicated that the trial court had interviewed Child prior to entering this order. There is no transcript, video record, or order pertaining to the trial court's interview with Child. There is no record of any motions or other papers filed with the DRC or of any recommendation of the DRC.
The trial court entered its Findings of Facts, Conclusions of Law, and Judgment ("FFCLJ") on September 21, 2016. While the preamble indicated that Father and the Middletons had been present, that all parties had been represented by counsel, and that the trial court heard testimony of the parties, there is nothing in the record indicating that the trial court conducted a hearing on either party's motion. Additionally, the FFCLJ did not include any findings of fact. The first paragraph of the FFCLJ indicates that the trial court is denying Father's and the Middletons' respective motions for change of custody. The paragraphs that follow, however, indicate that the trial court is designating the Middletons as Child's primary residential custodian, that Father shall have standard visitation in compliance with local rules, and that Father is ordered to pay child support to the Middletons pursuant to the Kentucky Child Support Chart.
Father moved to alter, amend, or vacate the FFCLJ on September 23, 2016. In his motion, Father noted his confusion in the timing of the trial court's FFCLJ, as the only pending motions before the court at that time were not scheduled to be heard until September 26, 2016. Further, Father noted that Child had been attending school in Bell County for the past four years - the new arrangement would require her to transfer to schools in Harlan County; that the trial court's visitation order for him gave Father less visitation with Child than the Middletons had been allowed; that the Middletons had never filed a motion for Father to pay child support; that the Middletons had not attached affidavits to their motion for change of custody; and that there had been no testimony by any party in the case since 2015.
On October 3, 2016, the trial court entered Amended Findings of Fact, Conclusions of Law, and Judgment. Therein, the trial court amended the first paragraph of the FFCLJ to indicate that it was denying the Middletons' motion to modify custody and granting Father's motion to enter standard visitation, but in all other respects denying Father's motion to alter, amend, or vacate. Father filed a motion to vacate both the amended and original FFCLJ on October 13, 2016. In his motion, Father argued that, as the FFCLJ entirely lacked any findings of fact, it must be set aside as a matter of law. Additionally, Father acknowledged that the Middletons had filed the affidavits required by KRS 403.350 on September 22, 2016; however, as the FFCLJ was entered on September 21, 2017, Father contended that those affidavits could not have been used to support the trial court's order. Before the motion had been ruled on, on November 1, 2016, Father filed his notice of appeal with this Court. On December 28, 2016, the trial court denied all post-judgment motions.
This is somewhat confusing, as the remaining paragraphs of the FFCLJ indicate that the trial court did, in fact, grant the Middletons' motion to modify custody in that it changed Child's primary residential custodian from Father to the Middletons.
Kentucky Revised Statutes.
II. STANDARD OF REVIEW
Family courts have broad discretion in ascertaining the reliability of the evidence presented. Jones v. Hammond, 329 S.W.3d 331, 334-35 (Ky. App. 2010). In reviewing the family court's decision, "the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or . . . he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citing Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974)). "Findings of fact are not clearly erroneous if supported by substantial evidence." Glodo v. Evans, 474 S.W.3d 550, 552 (Ky. App. 2015) (citing Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002)). "[W]e conduct a de novo review of the trial court's application of the law to the established facts to determine whether the ruling was correct as a matter of law." Id. (citing Laterza v. Commonwealth, 244 S.W.3d 754, 756 (Ky. App. 2008)).
III. ANALYSIS
On appeal, Father contends that the trial court erred as a matter of law by modifying the custody arrangement between the Middletons and himself without first conducting an evidentiary hearing. Additionally, Father contends that the trial court's FFCLJ must be set aside, as it lacks the requisite findings of facts. The Middletons contend that there was no need for the trial court to conduct an evidentiary hearing before modifying custody, as the court had interviewed Child in 2015 and that, because of the many motions that had been filed with the trial court over the past decade, the court was already aware of all relevant facts. The Middletons assert that there was no need for the trial court to include findings of facts in the FFCLJ because all parties were sufficiently made aware of the trial court's reasoning in modifying custody, which they contend is the main purpose of a court including its findings in a written order. Alternatively, the Middletons contend that, should we find that the trial court's findings of fact are insufficient, that alone is not grounds to vacate the trial court's order.
The FFCLJ, as amended, stated that it was granting Father's motion to modify visitation by changing the previous visitation schedule to a standard visitation schedule. In effect, however, the FFCLJ not only modified the visitation schedule, but modified the previous custody arrangement by making the Middletons Child's primary residential custodians. Changes in custody are governed by KRS 403.340; modification of timesharing/visitation is governed by KRS 403.320. Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). KRS 403.340(3), in pertinent part, reads as follows:
[T]he court shall not modify a prior custody decree unless after [a] hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child.(Emphasis added). KRS 403.320(3) simply indicates that "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child . . . ." While there is no mention of a hearing in the text of the statute, the Supreme Court of Kentucky has explained that a motion for modification "asks for adjudication on the merits presented at a required hearing." Anderson v. Johnson, 350 S.W.3d 453, 456-57 (Ky. 2011) (emphasis added); see also McNeeley v. McNeeley, 45 S.W.3d 876, 878 (Ky. App. 2001) ("We infer from [KRS 403.320] that a hearing is required for the purpose of determining the best interests of these children." (Emphasis added)). Thus, under the applicable statutes and case law interpreting those statutes, it is quite clear that a hearing is, in fact, required before a trial court may modify a custody or timesharing/visitation order. "We do not see how the court can determine [Child's] best interests without a hearing on these issues." McNeeley, 45 S.W.3d at 878. In the instant case, the record indicates that the trial court last conducted a "partial hearing (wherein the [trial court] interviewed [Child])" on a motion to modify visitation and motion to hold Father in contempt in the summer of 2015 - more than a year before the trial court entered the FFCLJ. R. 859. The last evidentiary hearing of record took place in 2012.
As noted previously, that hearing is not included in the video record on appeal. The order referencing the "partial hearing" is dated July 21, 2015. That order does not indicate on what date this "partial hearing" occurred, nor does it include any findings of fact from that hearing. R. 859. --------
Further, the trial court's FFCLJ, despite its title, was completely devoid of any findings of fact. "In all actions tried upon the facts without a jury . . . the court shall find the facts specifically and state separately its conclusions of law . . . ." CR 52.01. "In domestic relations cases, post-decree motions concerning visitation and timesharing modifications are 'actions tried upon the facts without a jury' under CR 52.01 . . . ." Keifer v. Keifer, 354 S.W.3d 123, 125 (Ky. 2011) (citing Anderson, 350 S.W.3d at 454). Therefore, it is "imperative that the trial courts make the requisite findings of fact and conclusions of law to support their orders." Id. at 126. As the trial court did not conduct an evidentiary hearing and failed to set forth any findings of fact upon which it might have based its decision that modifying custody was in Child's best interests, we cannot affirm the FFCLJ.
IV. CONCLUSION
Based on the foregoing, we VACATE the FFCLJ of the Harlan Circuit Court and REMAND. On remand, the trial court shall conduct an evidentiary hearing on the Middletons' motion to modify custody and on Father's motion to modify visitation before entering an order, which shall include its findings of fact, on the respective motions.
ALL CONCUR. BRIEFS FOR APPELLANT: William D. Tingley
Louisville, Kentucky BRIEF FOR APPELLEES: Kellie D. Wilson
Harlan, Kentucky