Opinion
NO. 2019-CA-000361-ME
03-13-2020
CHAD L. MITCHELL APPELLANT v. NICOLE L. MITCHELL APPELLEE
BRIEFS FOR APPELLANT: Anna L. Dominick Carl Devine Lexington, Kentucky BRIEF FOR APPELLEE: Elizabeth S. Hughes Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 18-CI-03561 OPINION
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES. JONES, JUDGE: The Appellant, Chad L. Mitchell, appeals the Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage ("Decree") entered by the Fayette Family Court on February 4, 2019. Chad asserts that the family court should not have included child custody and timesharing provisions in its Decree without first conducting a hearing. Chad points out that the matter was submitted to the family court by way of a default motion filed by the Appellee, Nicole L. Mitchell, and that the family court decided the matter the same day Nicole's counsel filed her motion for submission for decision and entry of decree of dissolution by default. Nicole counters that her counsel followed the default procedures established by the Kentucky Family Court Rules of Procedure and Practice ("FCRPP") as well as the Rules of the Fayette Family Court ("RFFC").
Having reviewed the record, in conjunction with all applicable legal authority, we hold that while the FCRPP and the RFFC permit certain matters to be decided by default without a hearing such as dissolution, property division, spousal maintenance, and child support, the same is not true for decisions related to custody and timesharing. Deciding custody and timesharing requires the family court to determine what is in the best interest of the children at issue. "Even in a situation in which a party is in default, no custody [or timesharing] determination can be made absent an evidentiary hearing to determine the child's best interests." S.E.A. v. R.J.G., 470 S.W.3d 739, 743 (Ky. App. 2015). Accordingly, we must vacate and remand the timesharing issue for additional proceedings, which shall include an evidentiary hearing.
While Chad points out that child custody and timesharing require a hearing, he has conceded that the award of joint custody was proper. Given the statutory presumption in favor of joint custody, it would be illogical to remand for a new custody determination where both parties agree the mandate applies in this action.
I. BACKGROUND
The parties were married on July 29, 2000, in Fayette County, Kentucky. (Record (R.) at 2). Two children were born to the parties during their marriage. Id. The parties separated on or about September 12, 2018. Id. Acting with the assistance of counsel, Nicole filed a petition for dissolution of marriage on October 11, 2018. (R. at 1-4). The children were twelve and fourteen years of age at this time. (R. at 3). In addition to an order dissolving their marriage, Nicole requested the family court to "establish child custody, timesharing and support and divide the marital property, debts and obligations of the parties." (R. at 3).
Chad was not formally served with a summons. Instead, Nicole's counsel prepared and requested Chad to sign an "Affidavit and Entry of Appearance" acknowledging receipt of the petition, waiving formal service and submitting to the family court's jurisdiction. (R. at 8-9). Chad obliged, and the document was electronically filed by Nicole's counsel on October 18, 2018. Id. The document, as signed by Chad and notarized, states as follows:
Comes the Affiant, Chad Lee Mitchell, after first being duly sworn, and states that he has been named the Respondent in the above styled action; that Affiant has received a true copy of the Petition for Dissolution of Marriage and accepts service of the same; that Affiant is a citizen and resident of Lexington, Fayette County, Kentucky, and that Affiant does hereby submit himself to the jurisdiction of this Court and waives any and all objections to the venue of this cause, it being the intent of Affiant to enable the action to proceed in Fayette Family
Court to the same extent as if he had been personally served with summons.Id.
The record was dormant for the next four months. On February 4, 2019, Nicole's counsel filed a document styled "Motion for Submission for Decision and Entry of Decree of Dissolution by Default." The motion stated that Chad accepted service of the petition on October 17, 2018, but had not filed an answer or any other pleadings. Nicole's counsel also averred that she had not received any communication from Chad or any attorney purporting to act on his behalf. Nicole's counsel served a copy of the motion for default on Chad at his last known address, the parties' marital residence.
The family court signed an order of submission on the same day the motion requesting submission was filed by Nicole's counsel, February 4, 2019. The order provides:
This matter is before the Court upon Petitioner's Motion for Submission for Decision and Entry of Decree of Dissolution by Default. The Court finds that this matter was instituted upon filing of a Petition of Dissolution of Marriage on October 11, 2018. Respondent Chad Lee Mitchell executed an Affidavit and Entry of Appearance on October 17, 2018, which was filed by record by petitioner's counsel on October 18, 2018. More than 20 days have elapsed since Respondent acknowledged receipt and a copy of the Petition for Dissolution of Marriage and accepted service of same, submitting himself to the jurisdiction of this Court.
No answer or pleadings have been received by Petitioner or her counsel.(R. at 22-23). The Clerk of the Fayette Circuit Court served a copy of the order of submission on Chad at his last known address.
Neither party is currently in the military service.
A copy of Petitioner's Motion was served upon Respondent at his last known address (the martial residence).
WHEREFORE, the Court being duly advised, this matter stands submitted to the Court for entry of a Decree of Dissolution by default.
In support of her motion for default, Nicole also filed answers to deposition by written questions, which she verified on February 1, 2019. Relative to child custody and timesharing, Nicole's answers state:
There is no indication in the record that Chad was served with the questions or that he was given a copy of the answers prior to their being filed with the Court.
Q. What custody arrangement do you believe is in your children's best interest?
A. I believe it is in the best interest of our sons that my spouse and I share joint custody of them.
Q. What timesharing arrangement do you believe is in your children's best interest, taking into account the fact that there exists a presumption that timesharing should be equal.
A. Equal timesharing would definitely not be in the boys' best interest in this case, and I propose that the children reside primarily with me, as they do currently.
My spouse left the marriage for a paramour who is a married mother of one of our sons' peers. . . . Thus, the boys are well aware of their father's extramarital affair, which has negatively affected their relationship with their father. Even though my spouse is living in the marital residence, he has made no effort to have overnight visitation with our boys or to repair his relationship with them, and they have shown no interest in spending time with him. My spouse has not asked for any regular schedule for timesharing but seems content for the boys to live primarily with me.(R. at 30-31).
Q: What do you propose the timesharing schedule should be?
A: I believe that my spouse and I will be able to agree upon a timesharing schedule that takes into account the wishes of our sons, who are ages 15 and 12. I propose that if we cannot agree on a timesharing schedule, then we will engage the service of a parenting coordinator and/or professional mediator prior to seeking an adjudication by the Court. I propose that under no circumstances shall my spouse allow his paramour, Erin Brown Johnson, to participate in the timesharing or otherwise be exposed to the children unless and until both parties and the children agree otherwise. I believe this condition is necessary due to the negative impact the relationship with Ms. Johnson has had on the children. For this same reason, I ask that timesharing not occur at Ms. Johnson's home and that she not be permitted to visit our marital residence pending its sale. Inasmuch as the children still maintain their rooms at the residence and should be encouraged to visit their father there, I believe it would be detrimental to the children's relationship with their father to risk their discovery of his paramour's presence in the home at any time.
The family court entered its final Decree on February 4, 2019, the same day that Nicole filed her motion for default and the family court entered its order taking the matter under submission. Relative to child custody and timesharing, the Decree largely parrots Nicole's written answers to deposition questions. It states:
The parties are the parents of two children [ages 15 and 12]. The children reside primarily with Nicole. Nicole is currently residing at her parents' residence with the children and Chad is living in the marital residence. Notwithstanding this arrangement, the children have not been interested in regularly scheduled timesharing with Chad, apparently as a result of the extramarital affair their father had (and continues to have) with the married mother of one of their peers. Chad has not made any effort to repair his relationship with his sons or to establish regular timesharing. Chad's paramour's name is Erin Brown Johnson and she is currently a party to a dissolution proceeding also pending before the Fayette Circuit Court, Civil Action No. 18-CI-3305. By Agreed Order entered on January 15, 2019, in the Johnson matter, Chad is prohibited from entering the Johnson residence and from being in the presence of the Johnson child.
. . .
The provisions for child custody, timesharing, child support and division of property and debts proposed by Nicole and set forth below is not unconscionable.
. . .
Pending sale of the marital residence, Chad shall not permit his paramour, Erin Brown Johnson, to visit the marital residence.
. . .
The parties shall share joint custody of their two minor children, who shall reside primarily with Nicole. The presumption of equal timesharing has been overcome by proof in Nicole's Deposition Upon Written Questions that Chad's relationship with the children has been negatively affected by his relationship with his paramour and Chad has made little or no effort to repair his relationship with them. Thus, it is in the children's best interest to reside primarily with Nicole.(R. at 35-44).
Chad shall not be denied timesharing, however. The parties shall agree upon a timesharing schedule that takes into account the wishes of the children. If the parties cannot agree upon a timesharing agreement, they shall engage the services of a parenting coordinator and/or professional mediator prior to seeking an adjudication by the Court. The expenses of the parenting coordinator and/or mediator shall be paid by Chad. Under no circumstances shall Chad allow his paramour, Erin Brown Johnson, to participate in his timesharing or otherwise be exposed to the children, unless and until both parties and the children agree otherwise. Timesharing shall not occur at Ms. Johnson's home. Furthermore, as set forth above, pending the sale of the marital residence, Chad shall not permit his paramour to visit the marital residence. Inasmuch as the children still maintain their rooms at the residence and should be encouraged to visit with Chad there, the Court concludes it would be detrimental to Chad's relationship with the children to risk their discovery of his paramour's presence in the home at any time.
Ten days after entry of the Decree, acting with the assistance of counsel, Chad filed a motion to set aside or modify the Decree. Chad asserted that he had entered an appearance in this matter as evidenced by the "Affidavit and Entry of Appearance" he signed on October 17, 2018, and Nicole's counsel filed on October 18, 2018. As a result, he claimed that he was entitled to notice and an opportunity to be heard prior to default being granted to Nicole.
Factually, Chad's motion took issue with Nicole's characterization of his relationship with the children. He argued that Nicole's answers to the written deposition questions were one-sided, self-serving, and not truly indicative of the children's feelings about his relationship with Ms. Johnson.
Chad also took issue with Nicole's characterization of the parties' marital debts and assets. As Chad's appeal relates only to timesharing, we have omitted a summary of those arguments.
Nicole's representations regarding Chad having "made little or no effort to repair his relationship with [the children]" are simply untrue. Nicole failed to advise the Court that Chad is actively involved with the children and sees them practically every day with him taking the parties' youngest minor child to school each day and him seeing the parties' oldest child practically every day after school. He has been and continues to be involved in the children's extracurricular activities. There has been no reaction from the children about what Chad did or did not do involving the marital breakdown. While Chad is confident that Nicole has been talking to the children about Chad's actions, that is not something that Chad has discussed with the children and the children should not be involved in such a process. The fact is that Chad has a great relationship with the children and it is in the children's best interest for the parties to exercise equal timesharing.(R. at 52).
Nicole objected to Chad's motion to set aside or modify the Decree. She argued that Chad had not entered an appearance as contemplated by Kentucky Rule of Civil Procedure ("CR") 55.01 because he did not contest any of the allegations in Nicole's petition or file a formal pleading in response thereto. With respect to her failure to notice the default motion for a hearing, Nicole cited the FCRPP and argued that her motion complied exactly with FCRPP 3(2), the rule governing "default cases." Nicole also pointed out that she followed the RFFCs for seeking default judgment. Following a hearing, the family court denied Chad's motion.
The family court initially ruled from the bench; a written order of denial was entered sometime thereafter.
This appeal followed.
II. ANALYSIS
Chad first argues that entry of a default judgment against him without providing him notice constitutes a "fatal defect" and, therefore, the judgment should be vacated in its entirety. Chad asserts that, pursuant to CR 55.01, he was entitled to notice at least three days prior to a hearing for default judgment. While we understand Chad's confusion in light of his having signed a document styled "Affidavit and Entry of Appearance," we cannot agree that this document satisfies CR 55.01.
CR 55.01 provides, in pertinent part:
[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he, or if appearing by representative, his representative shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.Id.
In Smith v. Gadd, 280 S.W.2d 495, 497 (Ky. 1955), the Court held the phrase "appeared in the action" as used in CR 55.01 requires some level of participation by the defendant that would enable the movant and the court to determine that the defendant intended to defend the action. "There must be some act which would signify that the defendant is contesting liability rather than admitting it, and therefore would be likely to contest the motion for judgment if given notice." Id. at 498. An entry of appearance wherein the defendant merely assents to the court's exercise of jurisdiction is not sufficient to establish an intent to defend.
It may be noted that most of the cases considering the question of 'appearance' are those in which the jurisdiction of the court over the person of the defendant is dependent upon some act of his that would bring him into the lawsuit when he has not been served with summons. Under CR 55.01 the word 'appeared' has a more particularized meaning because it must be assumed that the defendant has been properly served with
summons and is before the court. Otherwise, of course, no default judgment could be rendered against him.Id. at 497-98.
Through his "Affidavit and Entry of Appearance," Chad submitted to the jurisdiction of the family court, giving it personal jurisdiction over him. However, as used in CR 55.01 Chad did not make an appearance for the purpose of answering or otherwise participating in the action. He merely waived formal service and agreed to submit himself to the family court's jurisdiction.
To this end, we note that RFFC 203(C) provides for use of a waiver of service of summons/entry of appearance form like the one prepared by Nicole's counsel and sent to Chad. It specifically provides that once signed and filed, the form "shall have the same effect as is [sic] if process had been served." Thus, our interpretation is consistent with "effect" as set forth in the Local Rule. Nicole's counsel complied with the requirements. However, going forward we urge counsel preparing such notices for use by unrepresented parties to include a warning that the failure to take further action could result in default judgment being entered without prior notice.
This leads us to Chad's second argument regarding the family court's failure to hold a hearing before deciding child custody and timesharing. The fact that Chad was not entitled to notice does not automatically permit the family court to summarily decide all issues in the action. In fact, CR 55.01 specifically provides that: "if, in order to enable the court to enter judgment or to carry it into effect, it is necessary . . . to establish the truth of any averment by evidence or to make an investigation of any other matter, the court, without a jury, shall conduct such hearings or order such references as it deems necessary and proper[.]" (Emphasis added).
Some family law issues can be decided by default without a hearing such as the dissolution of the marriage, property division, child support, and spousal maintenance. Our case law is clear, however, that matters that require the family court to assess a child's best interest require a hearing. "Even in a situation in which a party is in default, no custody determination can be made absent an evidentiary hearing to determine the child's best interests." S.E.A, 470 S.W.3d at 743 (emphasis added). A formal evidentiary hearing is an absolute prerequisite to determining the child's best interest in accordance with the factors of Kentucky Revised Statute ("KRS") 403.270. Crews v. Shofner, 425 S.W.3d 906, 911 (Ky. App. 2014). "Under such an approach, the child is afforded the full right to have his or her best interest fairly and fully determined, the mandatory 'shall' language promulgated by the Legislature in KRS Chapter 403 is given effect, and the matter is resolved in an efficient and timely manner despite the intransigence of the nonparticipating party." Id.
With respect to custody and timesharing, KRS 403.270 provides in relevant part:
KRS 403.270 was amended effective July 14, 2018. One of the main revisions was the creation of a presumption of joint custody and equal timesharing. Before a family court can deviate from the presumption, it must determine that a preponderance of evidence supports that the deviation is in the best interest of the child.
(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
Id. (emphasis added).(g) A finding by the court that domestic violence and abuse, as defined in KRS 403.720, has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child's relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program;
. . .
(k) The likelihood a party will allow the child frequent, meaningful, and continuing contact with the other parent or de facto custodian, except that the court shall not consider this likelihood if there is a finding that the other parent or de facto custodian engaged in domestic violence and abuse, as defined in KRS 403.720, against the party or a child and that a continuing relationship with the other parent will endanger the health or safety of either that party or the child.
The prior version of KRS 403.270, like the present version cited above, did not specifically mention the word "hearing" and only mandated the consideration of various factors before best interest could be determined. In Crews, we held that the factors our General Assembly required the family court to consider for best interest "cannot be made absent an evidentiary hearing." Crews, 425 S.W.3d at 911. In other words, the requirement for a hearing inherently derives from and is an intrinsic requirement of the best interest analysis mandated by our General Assembly. In cases, like the present, where best interest must be assessed with respect to deviation from the presumption of joint custody and equal timesharing, a hearing is necessary. In such cases, the statute specifically mandates the family court to consider the best interest factors set out above. The Crews court held that it was impossible to make such a determination without a hearing. The amendment of the statute did not change the logic behind the holding in Crews. Our case law requires a hearing for child custody and timesharing determinations even if the adverse party is in default.
This brings us to Nicole's assertion that the Kentucky Family Court Rules of Procedure and Practice as well as the Local Rules of the Fayette Family Court, as approved by the Supreme Court of Kentucky, abrogate Crews insomuch as they specifically provide for custody and timesharing to be decided without a hearing. We disagree that either the FCRPP or the RFFC explicitly provide for summary disposition of custody and timesharing issues without a hearing.
We begin with FCRPP 6. This section governs matters involving custody, shared parenting, visitation and support. FCRPP 6(1)("The provisions of this section shall apply to all actions in which there are disputes regarding custody, shared parenting, visitation or support."). Nicole's initiating petition sought determinations on child custody, timesharing, and support as well as requesting a dissolution of marriage. Therefore, FCRPP 6 governed the action. FCRPP 7 specifically governs custody disputes. It implicitly indicates that a hearing is required before an order establishing permanent custody or timesharing is entered by establishing a requirement for the exchange of witness and exhibit lists prior to the hearing.
The FCRPP were amended effective February 1, 2020.
[I]n any action in which the permanent custody or time-sharing of the child(ren) is in issue, each party shall, not less than 14 days prior to the day set for hearing, provide the other party(ies) with a list of the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a witness, as well as a list of exhibits to be entered.FCRPP 7(1). Neither FCRPP 6 nor FCRPP 7 mentions default judgment or summary disposition of child custody or timesharing matters.
We note that FCRPP 3 governs obtaining a decree of dissolution. Subsection 2 provides a mechanism for default. However, because this action also involved matters of custody, timesharing and support of children, FCRPP 6 applies. --------
This leads us to the Local Rules of the Fayette Family Court. RFFC 205 provides for default judgment. It specifically references FCRPP 3 and provides that a party "seeking a judgment by default in a dissolution proceeding must in addition comply with RFFC 710." There is no mention of child custody or timesharing issues being decided summarily through default. Additionally, RFFC 709 provides for the use of deposition by written questions in uncontested dissolution proceedings. No mention is made with respect to custody and timesharing being decided based on the submission of answers to written questions. RFFC 710 specifically governs the default submission of dissolution proceedings. It states:
710. Party in Default.
Unless otherwise ordered by the Court, an uncontested dissolution proceeding wherein the other party is in default may be submitted to the Court through the clerk for decision if the following is included:
1. A motion requesting the case proceed for submission on default, said motion being noticed to be heard at the convenience of the court, with FC-2, Affidavit of the Non-Defaulting Party for Submission, attached, and an order submitting the case for decision on written deposition.
2. A completed and sworn deposition upon written questions, said deposition to be in compliance with Form FC-3, Deposition Upon Written Questions.
3. Unless otherwise directed by the Court, a proposed Findings of Fact signed by the submitting party.
4. A proposed decree, signed by the submitting party.
5. Form AOC-152 Uniform Child Support Order and/or Wage Benefit/Withholding Order for Kentucky Employers, if applicable, and a completed Child Support Guidelines Worksheet.
6. Affidavit of counsel as required by FCRPP 3(2).
7. Sufficient number of copies of the order of submission and decree together with properly addressed and stamped
envelopes to permit the Court to complete service thereof to the parties.Id.
We believe it is notable that once again there is no mention of custody and/or timesharing. Child support is mentioned. However, child support is set largely by statute. It does not entail a best interest analysis and consideration of the attending factors.
In sum, we do not agree that either the Kentucky or Fayette County Family Court Rules were intended to abrogate Crews or provide for custody and/or timesharing decisions to be made based on the kind of very limited record submitted to the family court in this case. While the family court was certainly able to ascertain Nicole's wishes from the deposition answers, it was not able to judge Nicole's credibility and motivations for wanting to restrict Chad's timesharing with the children, an important factor in the best interest analysis, especially given the statutory presumption in favor of equal timesharing. Likewise, without a hearing the family court was also unable to ascertain the true wishes of the children. At the time the decision was rendered, the children were twelve and fifteen, old enough to express themselves to the family court.
In the absence of an adversary to question Nicole's representations, the family court could have appointed a Friend of the Court ("FOC") to interview the children and other knowledgeable persons regarding their feelings toward Chad and their desire to continue their relationship with him in light of the extramarital affair. KRS 403.090(4) ("In any action for divorce where the parties have minor children, the friend of the court, if requested by the trial judge, shall make such investigation as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children and will enable the court to enter just and proper orders and judgment concerning the care, custody, and maintenance of the children."). This would have been far more desirable than accepting the written deposition answers of one party in a divorce filled with as much acrimony as this one. The family court also had the option to appoint a Guardian ad Litem ("GAL") to represent the children at a hearing if it was discovered that their interests actually diverged from Nicole's interests. See Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014).
Any of these options would have been acceptable. However, the family court decided the matter solely on the basis of Nicole's written deposition answers without the benefit of hearing from any other interested persons, most importantly the children whose lives were at issue. While Chad may very well have sat on his rights, the proceeding was not just for the benefit of the parents. The primary purpose of a child custody proceeding is to ascertain what is in the best interest of the children. We believe this is precisely why our General Assembly chose to mandate the consideration of various factors before a family court is allowed to deviate from the standard of joint custody and joint timesharing. We cannot agree that the family court followed the General Assembly's mandate in this action.
III. CONCLUSION
Therefore, and for the foregoing reasons, we VACATE the decree entered by the Fayette Family Court as related to the issue of timesharing and REMAND this matter for additional proceedings, including a hearing.
ACREE, JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND WRITES SEPARATELY. DIXON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I write separately because, while I agree with the majority's affirmation of the family court's decision as to all but one issue, I do so for somewhat different reasons. However, while I agree that KRS 430.270 creates a presumption of equal timesharing, I believe it is unnecessary to vacate the family court's decision herein as to timesharing.
As an initial matter, the majority has, by footnote, dispensed with the family court's default judgment of all issues except timesharing. Whether Chad has "conceded" to joint custody and that his appeal "relates only to timesharing," I believe there is no basis for vacating the default judgment as to these issues. As the majority has correctly acknowledged, whether Crews v. Shofner, 425 S.W.3d 906 (Ky. App. 2014), and its progeny require a hearing in every custody case to determine best interest, the current version of KRS 403.720(2) now creates a presumption that joint custody is in the best interest of children. Therefore, where—as here—joint custody is awarded in a default judgment, there is no basis for reversal on that issue. This is the only logical conclusion. In default cases wherein the petitioner seeks joint custody, there would be no evidence put forward to overcome this presumption rendering such hearings meaningless and a waste of time, money, and resources for parties and the judicial system alike. As to all other issues, save timesharing, once a court determines a default judgment has been properly entered, there is no basis to set aside said judgment. Since the majority has determined the validity of the default judgment herein—except timesharing due to statutory provision—there is no legal basis to vacate on these issues as well.
The issue of timesharing here is more complex. As previously noted, there is now the presumption that equal timesharing is in the best interest of children. Here, however, it is unclear as to what timesharing the family court has actually awarded. While the family court concluded that the presumption of equal timesharing had been overcome by proof in Nicole's deposition, it failed to set any timesharing schedule concluding:
The parties shall agree upon a timesharing schedule that takes into account the wishes of the children. If the parties cannot
agree upon a timesharing agreement, they shall engage the services of a parenting coordinator and/or professional mediator prior to seeking an adjudication by the Court.Thus, unequal timesharing is unknown at this point.
The majority relies upon Crews to claim trial courts must hold hearings to determine the best interest of children where unequal timesharing is ordered. However, the court in Crews only required such for custody determinations, not timesharing. Crews, 425 S.W.3d at 911. This is equally true in S.E.A., the other case upon which the majority relies. There is a very good reason to distinguish custody determinations from visitation. Custody determinations are much harder to change than visitation. Visitation may be modified by a court at any point. However, pursuant to KRS 403.340(2), a custody decree may only be modified within two years after its entry under very limited circumstances.
Moreover, here, the family court did, in fact, possess evidence in the record to support its judgment. Nicole submitted a deposition, made under oath, setting out her reasons for requesting unequal timesharing. This constitutes sufficient evidence for an appellate court to affirm its decision; therefore, I would affirm the judgment of the Fayette Family Court. BRIEFS FOR APPELLANT: Anna L. Dominick
Carl Devine
Lexington, Kentucky BRIEF FOR APPELLEE: Elizabeth S. Hughes
Lexington, Kentucky