Opinion
NO. 2013-CA-001801 - ME
06-20-2014
ORVIS CARL SEABERG APPELLANT v. ANGELA MARIE SEABERG APPELLEE
BRIEF FOR APPELLANT: Bobby L. Amburgey Mt. Vernon, Kentucky BRIEF FOR APPELLEE: Debra Hembree Lambert Mount Vernon, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ROCKCASTLE FAMILY COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 10-CI-00148
OPINION
REVERSING AND REMANDING
BEFORE: JONES, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Orvis Carl Seaburg appeals from order of the Rockcastle Family Court denying his motion to modify timesharing of the parties' two children. Because the family court did not make findings of fact and separate conclusions of law, we must reverse and remand.
The parties use the terms timesharing and visitation interchangeably.
In 2010, Orvis and Angela Marie Seaburg divorced. In the decree, the parties shared equal time with their two sons and neither party was designated as the primary custodian. In April 2012, Angela filed a motion to modify timesharing. Orvis filed a verified response to Angela's motion, which included his own motion to modify timesharing.
Although a hearing was held that lasted approximately three hours and believed to be recorded, due to a mechanical failure, only the video was recorded. Consequently, there is no audio record of the proceedings. However, both parties state in their briefs the family court verbally ruled from the bench it would be in the children's best interest to name Angela as the primary care giver and formal findings would be prepared. On April 28, 2013, the family court issued a written order modifying visitation stating as follows:
The Court finds that it is in the best interest of the children for the Parties to continue to share joint custody with the Petitioner, the children's mother, being named as the primary residential custodian.The family court also set visitation and child support.
On May 1, 2013, Orvis filed a motion to alter, amend or vacate pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. Because Orvis's counsel withdrew from the case on May 20, 2013, the motion was continued and Orvis was granted 30 days to obtain new counsel. On July 22, 2013, an agreed order was entered stating: "By agreement of the parties IT IS ORDERED the motion to Amend, Alter or Vacate be continued generally."
On September 17, 2013, Orvis, represented by counsel, renoticed his CR 59.05 motion followed by a memorandum where he noted the family court did not make any findings of fact and separate conclusions of law as required by CR 52.01. Further, he informed the court that the hearing was not recorded due to a mechanical failure and submitted the only viable remedy was to vacate the family court's order and conduct a new hearing.
Before Orvis's CR 59.05 motion was heard on September 20, 2013, the judge who presided over the hearing on the modification motions retired. Consequently, the CR 59.05 motion was considered by his replacement. The motion was denied and this appeal followed.
Angela maintains Orvis's motion filed pursuant to CR 59.05 was insufficient to preserve any argument relating to the lack of written findings of fact and separate conclusions of law issued by the family court. Although in his subsequent memorandum Orvis pointed out the lack of findings by the judge who heard the parties' initial motions and requested a new hearing, he did not file a formal motion requesting additional findings of fact.
CR 52.01 provides in part: "In 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[.]" CR 52.04 provides:
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.
In Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011), the Court recognized there is "some tension between the language in CR 52.04, which requires a party to object to the lack of a finding of fact, and the language in the first subsection of the rule, CR 52.01, which mandates that a court make findings of fact and conclusions of law." The Court proceeded to resolve any tension in the context of child custody and visitation/timesharing issues.
It began with the observation that in domestic relation cases, post-decree motions concerning visitation and timesharing are "actions tried upon the facts without a jury" as contemplated in CR 52.01. Id. at 455. It concluded CR 52.01 places a duty upon the trial judge to engage "in at least a good faith effort at fact-finding and that the found facts be included in a written order" and, therefore, CR 52.04 applies only when the court has made findings but not addressed an essential issue. Id. at 458. The Court placed the broader burden on the trial court emphasizing its express duty to render necessary findings of fact and conclusions of law. Id. Additionally, as a matter of policy, the Court pointed out:
[W]hen a court fails to make any kind of factual findings as required, the litigant should not be prohibited from asking an appellate court to require the lower court to make such findings. A trial court should be well aware of the requirements of CR 52.01, and failing in that duty places a litigant in the difficult position of signaling to the court that an appeal is imminent. It is not in the best interests of enforcing the intent of the rules, orderly review, or justice to require written requests in such circumstances.Id. The Court held a denial of a modification of timesharing based solely on the conclusion of law that it "would not be in the child's best interest" violated the command of CR 52.01. The court reasoned: "Saying only that it is not in a child's best interest ... and nothing further, raises the question "Why?" CR 52.04 is simply not involved here because the trial court made no factual findings rather than good-faith but incomplete findings." Id. at 459.
The Court reiterated the same reasoning and rule in Keifer v. Keifer, 354 S.W.3d 123, 125-126 (Ky. 2011):
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.
In this case, the family court's order is fatally flawed. It only recites it is in the children's best interest to continue joint custody with Angela being named the primary residential custodian. Because the order does not contain the required findings of fact and separate conclusions of law, it must be reversed.
Generally, if a hearing is held in a child custody matter and this Court subsequently reverses a judgment or order for insufficient findings of fact or conclusions of law, remand is appropriate for the lower court to enter a proper judgment or order without a new hearing. However, in this case, such a result is impractical because not only is the judge who presided over that hearing retired, but the hearing was not recorded. Even more problematic, Orvis did not follow any of the procedures for filing a narrative statement or a bystander bill. CR 75.13; CR 75.14.
Where a party does not supplement the record through the procedures provided by our civil rules and the record is incomplete or, in this case, nonexistent, this Court will assume the record supports the trial court's decision. Harper v. Commonwealth, 371 S.W.3d 763, 769 (Ky.App. 2011). However, that rule applies where a party is attacking the sufficiency of the evidence. In this case, Orvis challenges the sufficiency of the court's order on the basis that the family court did not comply with our civil rules.
The situation presented compels us to remand this case for a new hearing and appropriate written factual findings and conclusions of law. As our Supreme Court stated in Keifer, "[c]consideration of matters affecting the welfare and future of children are among the most important duties undertaken by the courts of this Commonwealth." Keifer, 354 S.W.3d at 125-126. Under the circumstances, a new hearing is required to ensure the judiciary's duty is completed.
Based on the foregoing, the order of the Rockcastle Family Court is reversed and the case remanded for a new hearing followed by written findings of fact and conclusions of law.
ALL CONCUR. BRIEF FOR APPELLANT: Bobby L. Amburgey
Mt. Vernon, Kentucky
BRIEF FOR APPELLEE: Debra Hembree Lambert
Mount Vernon, Kentucky