Keifer v. Keifer, 2010–SC–000694–DGE.

• Citation: 354 S.W.3d 123
• Decision Date: 27 October 2011
• Docket Number: No. 2010–SC–000694–DGE.,2010–SC–000694–DGE.
• Parties: Cory KEIFER, Appellant, v. Jaylynne KEIFER, Appellee.
• Court: United States State Supreme Court (Kentucky)

354 S.W.3d 123

Cory KEIFER, Appellant,

v.Jaylynne KEIFER, Appellee.

No. 2010–SC–000694–DGE.

Supreme Court of Kentucky.

Oct. 27, 2011.

Douglas E. Miller, Miller & Durham, Radcliff, KY, for Appellant.

Phyllis K. Lonneman, Dawn Lonneman Blair, Lonneman, Blair, Logsdon & Burnette, P.L.L.C., Elizabethtown, KY, for Appellee.

Opinion of the Court by Justice VENTERS.

In this case we address the sufficiency of an order modifying parental visitation, or “parenting time,” established by a prior decree which dissolved the marriage of Cory Keifer and Jaylynne Keifer (now Berrier). The Court of Appeals reversed the order on the grounds that it failed to reflect any consideration of the factors set forth in KRS 403.270(2) relating to custody determinations, and remanded for “further proceedings,” but gave no guidance as to the appropriate scope of such proceedings. We agree that the trial court's order was deficient because of its failure to include written findings in support of its custody determination, and thus we affirm the Court of Appeals on that point; however, we further remand to the trial court with specific directions for the entry of a new order that complies with our recent decision in Anderson v. Johnson, 350 S.W.3d 453 (Ky.2011), which requires that trial court opinions affecting child custody to state the court's findings in support of its decision in writing.

Cory and Jaylynne Keifer had two children prior to their divorce in 2008. The Hardin Family Court awarded joint custody of the children without specifically designating either party as the primary residential parent. However, the original decree provided that Cory was entitled to “parenting time” in accordance with the standard “visitation schedule” used by that court. The decree further provided that the parenting time schedule was based upon the then-current residences of the parties, and that if either party relocated to a different county or state under circumstances that would prevent compliance with the parenting time established in the decree, the parties would either submit an agreed order modifying the parenting schedule, or move for an order of modification. The effect of the decree was that the children resided primarily with their mother, Jaylynne, who was a soldier in the United States Army.

In July 2009, Jaylynne received orders to relocate to Fort Hood, Texas. She promptly filed a motion in the Hardin Family Court to modify the parties' parenting time. In due course, the court held an evidentiary hearing on the motion. At the conclusion of the hearing, the judge ruled that the decree would be modified so that the children would live primarily with Cory, and that Jaylynne would have parenting times in accordance with the Court's visitation schedule. The family court judge expounded at length on the reasons for her ruling, with several references to factors enumerated under KRS 403.270(2) and at least three acknowledgements that her decision was based on what she concluded to be in “the best interest of the children.” Accordingly, by its oral rulings, the trial court made sufficient findings to comply with the requirements of KRS 403.270, 404.320, and CR 52.01.

At the conclusion of the judge's allocution, counsel for Cory agreed to draft an order reflecting the court's decision. A few days later, the following order was entered:

IT IS HEREBY ORDERED AS FOLLOWS:

That the parties shall continue to have joint custody of their two minor children, with neither party being designated as the primary residential parent.

Given [Jaylynne's] relocation to Ft. Hood, Texas, absent an agreement between the parties, she shall be entitled to parenting times which are consistent with the visitation schedule under HFCR 702.

[Cory's] child support obligation is terminated. Other than modified [sic] herein, the provisions of this Court's Final Order entered August 17, 2009 remain in full force and effect.

Shortly thereafter, Jaylynne appealed the order to the Court of Appeals, where two issues were addressed. The first issue was whether Jaylynne's appeal should have been dismissed because the notice of appeal was not served upon opposing counsel as required by CR 73.02(2). The second issue was whether the family court complied with KRS 403.270(2) and KRS 403.320(3) when it entered its modified visitation order.¹

The Courts of Appeals concluded that, despite the deficient service of the notice of appeal, Cory's appellate counsel had actual notice of its filing. Applying the standard of substantial compliance established by this Court in Johnson v. Smith, 885 S.W.2d 944 (Ky.1994), the Court of Appeal's denied Cory's motion to dismiss the appeal. We agree. Further elaboration upon that issue in this opinion is unnecessary.

After disposing of that threshold issue, the Court of Appeals concluded that the written order entered by the family court failed to satisfy KRS 403.320(2)'s requirement that the modification of a visitation order be based upon the “best interest of the child.” Correspondingly, the Court of Appeals also concluded that the family court's order was erroneous because it modified the existing visitation order without applying any of the factors set forth in KRS 403.270(2) for determining the best interest of the child. It reversed the trial court's order and remanded for “further proceedings” consistent with its opinion, without indicating what the nature of those further proceedings should be.

Cory now argues before this Court that the reversal of the trial court's order was erroneous because written findings of fact are not required when a trial court rules upon a motion to modify the visitation provisions of a prior decree. He further argues that even if written findings were necessary, Jaylynne failed to preserve the issue for appellate review because she did not follow the requirement of CR 52.04 that she request the trial court to make the specific findings.

We addressed these initial points in our recent decision in the case of Anderson v. Johnson, 350 S.W.3d at 454. There we held that in domestic relations cases, post-decree motions concerning visitation and timesharing modifications are “actions tried upon the facts without a jury” under CR 52.01, and therefore “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.” Id. (emphasis added). We again state with emphasis that compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and admonish ...