Opinion
NO. 2013-CA-001887-ME
07-25-2014
Z.G. APPELLANT v. R.W.G. APPELLEE
BRIEF FOR APPELLANT: Jeffery P. Alford Paducah, Kentucky No Brief for Appellee
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 12-CI-00745
OPINION
VACATING AND REMANDING
BEFORE: CAPERTON, COMBS, AND VANMETER, JUDGES. VANMETER, JUDGE: Z.G. appeals from the McCracken Circuit Court's Order Amending Parenting Time between him and his ex-wife, R.W.G., with respect to their son, P.G. Because we find the trial court exceeded its authority in modifying the parties' timesharing arrangement, we vacate and remand.
Z.G. and R.W.G. were divorced in McCracken County, Kentucky and executed an Agreed Order resolving all outstanding issues in the dissolution proceeding. The Agreed Order awarded the parties joint custody of their son and set forth a timesharing schedule which included a provision that each party would have the right of first refusal to provide child care when the other parent is working.
Eleven days after the Agreed Order was entered, Z.G. filed a Motion for Rule to Show Cause requesting R.W.G. appear in court and show cause why she should not be held in contempt for violating the parties' timesharing schedule. Specifically, Z.G. complained that R.W.G. interfered with his visitation time by picking up their son on Monday at 8 a.m., instead of 8 p.m., as the Agreed Order states. In response, R.W.G. stated that she believed she was to pick up their son at 8 a.m. on Monday, and further alleged that Z.G. violated the terms of the Agreed Order by having the child at his place of employment without providing her the right to exercise first refusal to provide child care while he was at work. R.W.G. also filed her own Motion for Rule to Show Cause requesting Z.G. appear and show cause why he should not be held in contempt for failing to abide by the "right of first refusal" provision in the Agreed Order. In response, Z.G. denied violating that provision and stated that his accounting job at his family's place of business requires him to work at the computer in his office, thereby allowing him the flexibility and ability to set up a play area in his office and supervise his son while he is working. He maintains that a third-party caregiver is not necessary while he is at work and thus he was not required to give R.W.G. the opportunity to exercise the right of first refusal. In reply, R.W.G. asserted that Z.G. was clearly working, did not provide her the right of first refusal, and therefore violated the terms of the Agreed Order. R.W.G. emphasized that their 8-month-old son requires a great deal of attention and supervision and that setting up a play area in the office is an unsuitable arrangement.
The parties appeared in court for a hearing on their competing Motions for Rule, after which the trial court entered an Order Amending Parenting Time. The Amended Order modified the days and times of visitation and removed the "right of first refusal" provision altogether. Z.G. appeals from the Amended Order, claiming the trial court lacked authority to amend the original Agreed Order on its own initiative since more than 10 days had passed since its entry and neither party requested modification of the Agreed Order. We believe the trial court retained jurisdiction to enforce the terms of the Agreed Order, but exceeded its authority in this case.
Whether a trial court has jurisdiction is a question of law, which we review de novo. Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007). Z.G. directs us to CR 52.02, which limits the court's ability to modify its orders. CR 52.02 provides, "[n]ot later than 10 days after entry of judgment the court of its own initiative, or on the motion of a party made not later than 10 days after entry of judgment, may amend its findings or make additional findings and may amend the judgment accordingly." Z.G. claims that more than 10 days had passed since entry of the Agreed Order and consequently the trial court lacked jurisdiction to amend it.
Kentucky Rules of Civil Procedure.
Case law is clear that a trial court retains jurisdiction to enforce its orders. Money v. Money, 297 S.W.3d 69, 72 (Ky. App. 2009) (citing Penrod v. Penrod, 489 S.W.2d 524, 527-28 (Ky. 1972). Here, the parties filed competing Motions for Rule, claiming violation of the Agreed Order and requesting enforcement of its terms. The trial court had jurisdiction to determine whether the Agreed Order stated Monday pick-up time at 8 a.m. or 8 p.m., to enforce the Order's terms, and to remedy any violation of the Order.
That being said, the court exceeded its authority by rewriting the Agreed Order to remove the "right of first refusal" provision. That omission amounts to a modification of the parties' timesharing schedule, for which no motion was made. Modification of a timesharing arrangement must satisfy the process set forth in KRS 403.320, which includes a determination of the best interest of the child. KRS 403.320(3). In the case at bar, the trial court did not make such a determination before removing the "right of first refusal" provision and thus improperly modified the parties' timesharing arrangement in that respect.
Kentucky Revised Statutes.
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Accordingly, we vacate the Amended Order and remand this case with directions for the trial court to reinstate its original Agreed Order and make any necessary clarifications to enforce the Monday pick-up time, which was the issue raised by the parties in their competing Motions for Rule. The court is further instructed to reinstate the "right of first refusal" provision set forth in the Agreed Order. The trial court shall limit its rulings to enforcement of the terms of the Agreed Order and shall not amend the Agreed Order in any other regard, except on motion of the parties and after satisfying any applicable statutory guidelines, including an evidentiary hearing dedicated to resolving any timesharing issue consistent with the best interest of the child.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffery P. Alford
Paducah, Kentucky
No Brief for Appellee