Opinion
NO. 2014-CA-000901-ME
05-08-2015
PATRICIA S. MAXWELL APPELLANT v. EDWARD C. MAXWELL APPELLEE
BRIEF FOR APPELLANT: Louis P. Winner Sarah M. Tate Louisville, Kentucky BRIEF FOR APPELLEE: Melanie Straw-Boone Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 06-CI-00044
OPINION
VACATING AND REMANDING
BEFORE: COMBS, J. LAMBERT, AND STUMBO, JUDGES. COMBS, JUDGE: Patricia Maxwell appeals the order of the Oldham Circuit Court which modified her timesharing arrangement with Edward Maxwell, her former husband. After our review, we vacate and remand.
Patricia and Edward were divorced on August 30, 2006. The decree of dissolution incorporated their agreement that they would equally share time with their minor son. However, the relationship between Patricia and Edward has been contentious, and eventually it required the aid of an outside parenting coordinator and a court-ordered custodial evaluation.
The custodial evaluator submitted his recommendation to the family court on October 17, 2013. On October 28, Edward filed a motion: to adopt the recommendations, to grant sole custody to him, and to adjust the parenting schedule to include two full weekends per month.
The family court held a hearing on the motion on February 5, 2014. At the time of the hearing, the child was with Patricia each week from five o'clock p.m. on Saturdays until seven o'clock p.m. on Tuesdays. Edward's visitations took place from seven p.m. on Tuesdays until five p.m. on Saturdays.
On March 17, 2014, the family court entered its order. It denied Edward's motion for sole custody. However, the court modified the visitation arrangement. It set Patricia's visitation from seven p.m. on Sundays until the beginning of the child's school day on Tuesdays. It granted Edward visitation from after school on Tuesday until seven p.m. on Friday. The court directed them to alternate visitation from seven p.m. on Fridays through seven p.m. on Sundays.
The record does not indicate what time that school day begins and ends.
Patricia filed a motion to alter, amend, or vacate the order and for the family court to provide specific findings of fact. The family court denied her motion on May 12, 2014. This appeal by Patricia follows. She asserts that the family court did not have jurisdiction to decide visitation issues and that it did not make sufficient findings of fact. Therefore, the matters before us are questions of law, and our review is de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).
Patricia's first argues that the family court did not have jurisdiction to address the issue of timesharing. She correctly asserts that a trial court only has jurisdiction to modify timesharing when it is prompted by a properly filed motion. Coffman v. Rankin, 260 S.W.3d 767, 769 (Ky. 2008). She claims that Edward did not raise the issue of timesharing modification in his motion. However, the record reflects otherwise.
In his motion, Edward asked the court "to adopt the recommendations of [the custodial evaluator], to award the sole care, custody and control of [the child] to [Edward] and establish a parenting schedule that provides both parties with two full weekends per month." Although the trial court granted parenting time beyond what Edward sought in his motion, the issue was properly before the court.
Nonetheless, we agree with Patricia's second argument that the family court failed to make sufficient findings to support modification of the timesharing schedule. Kentucky Revised Statute[s] (KRS) 403.320(3) provides that a court may modify visitation arrangements as long as the modification "would serve the best interests of the child[.]" It further admonishes that a parent's existing visitation rights shall not be restricted "unless [the court] finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." See Stewart v. Burton, 108 S.W.3d 647, 650 (Ky. App. 2003).
Critical to our review is Kentucky Rule[s] of Civil Procedure (CR) 52.01. The Supreme Court has strictly applied it to require that in custody and visitation cases, the trial court's findings must be in writing.
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. Failure to do so allows an appellate court to remand the case for findings, even where the complaining party failed to bring the lack of specific findings to the trial court's attention.Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). In a companion opinion, Justice Venters emphatically elaborated on the Court's reasoning:
We again state with emphasis that compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and admonish trial courts that it is their duty to comply with the directive of this Court to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions. Consideration of matters affecting the welfare and future of children are among the most important duties undertaken by the courts of this Commonwealth. In compliance with these duties, it is imperative that the trial courts make the requisite findings of fact and conclusions of law to support their orders.Keifer v. Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011) (Emphasis added).
In this case, the family court made no findings concerning the best interest of the child. Its order duly summarized testimony from the hearing and discussed the role of the child's stepmother and her relationship with the child. Without additional explanation or elaboration, the court then set out the revised visitation schedule. Based on the absence of findings, the strenuous mandate of our Supreme Court compels us to vacate the order and remand for proper findings which weigh and articulate the best interest of the child.
However, because the issue is likely to reoccur on remand, we also address Patricia's claim that the trial court did not have a basis for reducing her visitation time. As we already acknowledged, KRS 403.320(3) forbids restriction of a parent's visitation "unless [the court] finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health."
In this case, Patricia's visitation was restricted by the very fact that it was reduced. See Stewart, supra. The family court stated that it was following the recommendations of the custodial evaluator, who had advised granting equal visitation to Patricia and to Edward. In spite of their previous agreed order for equal timesharing, at the time of the hearing on moderation, Patricia had forty-four percent of the child's time and Edward had fifty-six percent. The new visitation awarded by the court resulted in Patricia's receiving thirty-four percent of the week with sixty-six percent going to Edward. Their timesharing had not been equal at the time of the hearing, and the family court's modification served to enhance the discrepancy.
We are persuaded that this reduction is of the sort contemplated by the statute. Thus, on remand the elements of KRS 403.320 must be addressed with specificity before restricting the existing visitation.
Therefore, we vacate the order and remand for proceedings as directed by this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Louis P. Winner
Sarah M. Tate
Louisville, Kentucky
BRIEF FOR APPELLEE: Melanie Straw-Boone
Louisville, Kentucky