Opinion
NO. 2017-CA-000564-ME
07-06-2018
ERIC ROSS APPELLANT v. MICHELLE COLVIN BROWN APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Gordon J. Dill, Jr. Ashland, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE: Paul E. Craft Greenup, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 13-CI-00251 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; SMALLWOOD AND TAYLOR, JUDGES. TAYLOR, JUDGE: Eric Ross brings this appeal from a February 21, 2017, order of the Greenup Circuit Court, Family Court Division, modifying the parties' time-sharing agreement to designate Michelle Colvin (now Brown) as the primary residential parent of the parties' minor child and granting Eric time-sharing. We affirm.
A motion to alter, amend or vacate the February 21, 2017, order was denied by order entered March 9, 2017.
Eric and Michelle were never married but had one child together, Aiden Grace Erica Ross (Gracie), on March 16, 2012. Thereafter, in March 2013, Michelle married Tom Brown who lived in Findlay, Ohio. On April 26, 2013, Eric filed a motion seeking designation as Gracie's primary residential parent. Michelle responded and requested that she be designated the primary residential parent and that she be permitted to relocate to Ohio with Gracie. Michelle explained that she had married Tom, that Tom lived in Findlay, Ohio, and that she wanted to move there and take Gracie. By Agreed Order entered June 25, 2014, Eric and Michelle were awarded joint custody with equal time-sharing; neither party was designated the primary residential parent. Pursuant to the Agreed Order, Gracie would spend alternating weeks with Michelle in Ohio and with Eric in Kentucky. Michelle provided all of Gracie's transportation from Findlay, Ohio, to Greenup County, Kentucky, a trip of approximately three and one-half hours each way. By informal agreement of the parties, Gracie started spending two weeks at a time with each parent to minimize her travel time.
On October 13, 2016, Eric filed a motion to modify time-sharing. Therein, Eric asserted that when Gracie started kindergarten it would be in her best interest if he were designated her primary residential parent.
Following a two-day evidentiary hearing, by order entered February 21, 2017, Michelle was designated the primary residential parent. Eric was awarded time-sharing. Eric's time-sharing was to occur on the first, third, and fifth weekends of each month. Eric would also have spring break, fall break, Thanksgiving break, one-half of Christmas break, and two-thirds of summer break. Eric subsequently filed a motion to alter, amend or vacate the February 21, 2017, order, which the family court denied. This appeal follows.
We begin our analysis by noting the Kentucky Supreme Court has held that post-decree motions related to modification of time-sharing require a hearing and an adjudication on the merits, including findings of fact, and conclusions of law. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). Accordingly, our standard of review is governed by Kentucky Rules of Civil Procedure (CR) 52.01. Anderson, 350 S.W.3d 453. CR 52.01 provides that the family court's "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Findings of fact are not clearly erroneous if supported by substantial evidence. Ky. State Racing Comm'n v. Fuller, 481 S.W.2d 298 (Ky. 1972).
Eric contends the family court erred by modifying the parties' time-sharing and designating Michelle as the primary residential parent. Eric specifically contends the family court abused its discretion by designating Michelle the primary residential parent based solely upon the fact she was "unemployed."
A motion to be designated the primary residential parent is treated as a motion to modify time-sharing. Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). And, modification of a time-sharing arrangement is governed by Kentucky Revised Statute 403.320(3), which provides a court may modify time-sharing "whenever modification would serve the best interests of the child." Thus, a parent seeking to modify time-sharing to be designated the primary residential parent bears the burden of proof and must demonstrate that such modification would serve the child's best interest. Pennington, 266 S.W.3d 759. Our review of the family court's decision to modify time-sharing is limited to determining whether substantial evidence supported the court's findings of fact and whether the court abused its discretion. Id.
In the case sub judice, the family court conducted a hearing and heard testimony from both Eric and Michelle. Although not denoted as such in its order, the family court made findings of fact pursuant to KRS 403.270. Based on its fact- finding, the family court specifically concluded that both parties were "good parents" and that modification of the time-sharing arrangement was necessary because Gracie was starting school and the parties lived a considerable distance apart. The court's findings included Michelle's testimony that she married Tom Brown in March 2013. Michelle further testified that she and Tom had a child, Zachary. Tom works outside the home and Michelle stays home to care for Zachary and Gracie. Michelle also testified that she and Tom have maintained the same residence since they married in 2013. Eric, on the other hand, had lived in as many as seven different locations and held three different jobs over the last two years. The court found that Eric's current employment required him to work five nights per week from 4 p.m. to 12 a.m. Therefore, when Gracie began school, Eric's new wife would provide the majority of Gracie's daily care as Eric worked evenings.
Eric Ross apparently married Kelsey Homes ten days before the family court conducted the evidentiary hearing upon Eric's motion to be designated the primary residential parent. --------
Given the evidence relied upon by the family court, we are simply unable to conclude that its findings of fact were clearly erroneous or that it abused its discretion. Accordingly, we hold that the family court did not err by modifying the parties' time-sharing arrangement to designate Michelle as the primary residential parent and granting Eric time-sharing.
Eric also contends that the family court erred by modifying the drop off and pick up arrangements for Gracie's trips to Kentucky. Eric specifically asserts that neither party had filed a motion seeking a change in the current transportation arrangement.
Pursuant to the June 25, 2014, agreed order, Michelle was providing all of Gracie's transportation from Findlay, Ohio, to Greenup County, Kentucky, and back. This trip was approximately three and one-half hours each way, or seven hours round trip. Michelle had also incurred all the costs associated therewith. At the hearing, Michelle requested that the responsibility for Gracie's transportation be divided between the parties. The family court agreed with Michelle's request and ordered that the parties meet in Grove City, Ohio, which is the approximate half-way point from each parties' residence. Based on the facts of this case, transportation of the child is a material component of the time-sharing arrangement between the parties. Accordingly, we do not believe the family court's decision to order the parties to share the burden of transporting Gracie was an abuse of discretion.
For the foregoing reasons, the order of the Greenup Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: Gordon J. Dill, Jr.
Ashland, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEE: Paul E. Craft
Greenup, Kentucky