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M.P.S. v. P.R.A.

Commonwealth of Kentucky Court of Appeals
Apr 5, 2019
NO. 2018-CA-001300-ME (Ky. Ct. App. Apr. 5, 2019)

Opinion

NO. 2018-CA-001300-ME

04-05-2019

M.P.S. APPELLANT v. P.R.A. APPELLEE

BRIEF FOR APPELLANT: Mark C. Eppley Cincinnati, Ohio BRIEF FOR APPELLEE: Melissa H. Doss Erlanger, Kentucky


NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-J-00661 OPINION
VACATING AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES. L. THOMPSON, JUDGE: M.P.S. (hereinafter referred to as Mother) appeals from an order of the Kenton Family Court allowing P.R.A. (hereinafter referred to as Father) to relocate to San Diego, California with the parties' minor child (hereinafter referred to as Child). Mother argues that the trial court did not hold a hearing on the matter and did not make findings concerning the best interests of the child. We agree that the court erred in this case and vacate and remand.

As this case concerns a minor child, we will not use the names of the parents or the child. --------

Mother and Father are the parents of Child, but do not live together. On July 10, 2015, the parties were granted joint custody of child, and Mother was made the primary residential parent. On March 2, 2018, an order was entered which suspended Mother's parenting time due to alleged drug abuse and domestic violence within her household. On June 11, 2018, the court entered an order granting Mother limited timesharing with Child. On June 22, 2018, Father filed a notice of relocation requesting that he be allowed to move to San Diego, California with Child. Mother contested the request. A hearing was held on August 13, 2018, and the court entered an order granting the relocation request three days later. This appeal followed.

Mother argues on appeal that the trial court did not hold a proper hearing on the relocation issue and did not make any findings of fact as to whether relocation was in the best interests of Child. We agree.

The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify
visitation/timesharing under [Kentucky Revised Statute (KRS)] 403.320.
Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). KRS 403.320(3) allows a court to modify visitation "whenever modification would serve the best interests of the child[.]"

Although a hearing was held on the relocation issue on August 13, 2018, no testimony or evidence was presented. The only things discussed during this hearing were the relocation logistics and how best to allow Mother to communicate and visit with Child. The trial court's order entered on August 16, 2018, granted Father's request to relocate and set forth a timesharing schedule. The order did not make any findings of fact as to the best interests of Child. The court also did not make any oral findings at the conclusion of the hearing about the best interests of Child.

Kentucky Rule of Civil Procedure (CR) 52.01 states that "[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.]" This rule applies to orders which modify timesharing. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). A party may request additional findings of fact pursuant to CR 52.02. Finally,

[a] final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.
CR 52.04.

Here, the court did not make the required findings of fact regarding the best interests of Child. Also, Mother did not request additional findings. Father argues that this prevents this Court from reversing the relocation order. We disagree with Father. This issue has been previously determined by Anderson, supra.

To the extent possible, this Court should read the rules in harmony, rather than in conflict, to avoid rendering any of the language surplusage. This can be done by reading CR 52.01 as creating a general duty for the trial court to find facts, and 52.04 as applying only after the court has complied with its general duty. 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. Thus, CR 52.04 does not conflict with this reading of CR 52.01, because CR 52.04 only bars reversal or remand "because of the failure of the trial court to make a finding of fact on an issue essential to the judgment" when a litigant fails to bring it to the court's attention by a written request for a finding.
Anderson, 350 S.W.3d at 458 (emphasis in original).

In the case at hand, the trial court did not make the necessary findings of fact regarding the relocation and the best interests of Child. In addition, there was no evidence presented at the relocation hearing for the court to rely on in determining the best interests of Child. It is possible that the court was relying on previously presented evidence to determine that the relocation should be allowed. We are cognizant of the fact that family court judges handle a case on a continuing basis and may rely on past evidence presented. Here, the court was aware of Mother's drug use and the domestic violence within her household. This can be seen in the March 2, 2018 order suspending her parenting time. It would have been proper for the court to utilize these facts when determining the relocation issue; however, the court must still set forth in the written order the facts and evidence it relied upon.

We believe this case must be vacated and remanded for the court to hold an evidentiary hearing. The court must also enter an order which includes findings of fact regarding the best interests of Child. We hereby vacate and remand for additional proceedings consistent with this opinion.

ALL CONCUR. BRIEF FOR APPELLANT: Mark C. Eppley
Cincinnati, Ohio BRIEF FOR APPELLEE: Melissa H. Doss
Erlanger, Kentucky


Summaries of

M.P.S. v. P.R.A.

Commonwealth of Kentucky Court of Appeals
Apr 5, 2019
NO. 2018-CA-001300-ME (Ky. Ct. App. Apr. 5, 2019)
Case details for

M.P.S. v. P.R.A.

Case Details

Full title:M.P.S. APPELLANT v. P.R.A. APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Apr 5, 2019

Citations

NO. 2018-CA-001300-ME (Ky. Ct. App. Apr. 5, 2019)