Crouch v. Crouch, No. 2005-SC-0761-DGE.

• Decision Date: 21 September 2006
• Docket Number: No. 2005-SC-0761-DGE.
• Citation: 201 S.W.3d 463
• Parties: Charles Jackson CROUCH, III, Appellant, v. Virginia Eva CROUCH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 463

201 S.W.3d 463

Charles Jackson CROUCH, III, Appellant, v. Virginia Eva CROUCH, Appellee.

No. 2005-SC-0761-DGE.

Supreme Court of Kentucky.

September 21, 2006.

Jeffrey L. Preston, Attorney at Law, P.S.C., Catlettsburg, for Appellant.

Michael L. Judy, Esq., Frankfort, for Appellee.

GRAVES, Justice.

This appeal addresses the proper statutory procedure that must be followed in order to modify child custody. Appellant Charles Jackson Crouch, II, appeals from an opinion of the Court of Appeals which reversed a trial court decision modifying custody. The Court of Appeals found that the trial court lacked proper jurisdiction to modify a child custody arrangement between Appellant and Appellee, Virginia Eva Crouch. This Court granted discretionary review, and we now affirm the Court of Appeals' opinion in its entirety.

The facts in this case are not in dispute. The parties were divorced on December 17, 1996. Pursuant to the divorce decree and by consent of both parties, the trial court entered an order granting them joint custody of their minor child, born July 1994, and placing actual physical custody of the child with Appellee. The child resided with Appellee until February 2003 when Appellee, a member of the Kentucky National Guard, was notified and ordered to report to active federal duty within 72 hours (presumably to be deployed overseas). In this very short time frame, Appellee was forced to make expedited arrangements to transfer physical custody of the minor child to Appellant for the duration of her active deployment. Both parties concede that it was their intent for the custody transfer to be temporary and that Appellee would be entitled to reassume physical custody of the minor child upon being released from active duty. On February 10, 2003, an agreed order drafted by Appellant's attorney and purporting to memorialize these intentions was entered by the Boyd Circuit Court. The order stated, among other things, that the child would reside with Appellant "until further Orders of the Court."

Although not deployed overseas, Appellee was mobilized and deployed to Fort Knox, Kentucky, for one year. During this time, Appellee made several trips to visit the minor child in Raceland, Kentucky. In February 2004, Appellee contacted Appellant to inform him that her active duty tenure had been served. Appellee also told Appellant that she had been accepted to Officer Training School. The parties discussed and agreed that Appellee should proceed with attending the four-month training since it would be less disruptive and preferable to allow the minor child to finish the school year at her current school and then transfer physical custody during the summer. At no time did Appellant express any intention to not follow through with the custody transfer that summer.

In July 2004, at the completion of the four-month training, Appellee contacted Appellant to arrange for reassuming the minor child's physical care. At that time, Appellant stated that he would not transfer physical custody and that Appellant would need to obtain a court order to enforce their agreement. On July 28, 2004, Appellee moved the trial court to enforce the December 17, 1996, permanent custody order. On August 30, 2004, the trial court entered an order finding that it was in the minor child's best interests to remain with Appellant. In formulating its decision, the trial court stated:

The Court finds from the evidence that at the time the agreed order was executed it was the intent of both parties that the child would be returned to the physical custody of [Appellee] at the conclusion of [Appellee's] military alert. If the agreed order had been a contract for the sale of goods, the parties' intent would control as a matter of law. However, in the present arrangement the Court must consider the best interests of the child.

Appellee appealed the trial court's decision to the Court of Appeals. The Court of Appeals found that the February 10, 2003, order was temporary and thus not a modification of the December 17, 1996 permanent custody order. As such, the trial court had no jurisdiction to modify the December 17, 1996, order unless a motion to modify, along with a supporting affidavit, was filed in the case. KRS § 403.350; Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999). Moreover, even if the trial court did have proper jurisdiction, it failed to follow the proper standard of review. See KRS § 403.340; Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004)(under KRS § 403.340, modification is permitted if the trial court finds "a change has occurred in the circumstances of the child or his custodian" and "modification is necessary to serve the best interests of the child").

Appellant challenges the Court of Appeals' opinion, arguing that the February 10, 2003, order was not a temporary order and thus did operate to modify the December 17, 1996, permanent custody order. As such, the trial court properly treated Appellee's July 28, 2004, motion as a motion to modify the February 10, 2003, order, which was properly denied.¹ To support its position, Appellant cites language in the February 10, 2003, order which states, "the parties have agreed that the child shall be allowed to reside with [Appellant] until further Orders of the Court." Appellant contends that such language should be interpreted as conclusive proof that the February 10, 2003, order resulted in a permanent change in custody, regardless of any contrary intent by the parties or the trial court. We decline to adopt such a bright line interpretation in this case.

Although orders of the trial court are not contracts or statutory provisions, we believe that interpretative guidelines employed in such cases are instructive. When interpreting statutory language, KRS § 500.030 states, "[a]ll provisions of this code shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law." When interpreting contracts, "[i]n the absence of ambiguity a written instrument will be enforced strictly according to its terms." Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 106 (Ky.2003)(quoting O'Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966)). Where ambiguity exists, "the court will gather, if possible, the intention of the parties from the contract as a whole, and in doing so will consider the subject matter of the contract, the situation of the parties and the conditions under which the contract was written, by evaluating extrinsic evidence as to the parties' intentions." Id.

Interpreting court orders differs from that of statutes and contracts only to the extent that instead of construing the intent of the legislature or the intent of the parties, we must determine the intent of the ordering court. In W.T. Sistrunk & Company v. Kells, 706 S.W.2d 417, 418 (Ky.App.1986), the Court of Appeals held that "the legal significance of language in an administrative order is always subject to interpretation by a reviewing court, which must enforce such orders according to existing law." Similarly, and in accordance with applicable principles of statutory and contract interpretation, we believe that the legal significance of any particular trial court order is subject to interpretation by a reviewing court. Where the language of the order is clear and unambiguous, we will construe the order according to its plain terms.² However, where the order is ambiguous and open to interpretation, we will endeavor to construe and effectuate the intent of the trial court.

The terms of the February 10, 2003, order are by no means clear when read and considered in their entirety. In context, the order's relevant language states:

That [Appellant] and [Appellee] shall continue to have joint custody of the parties' minor child, [redacted]. The parties having informed the Court that [Appellee] has been called to active military duty, the parties have agreed that the child shall be allowed to reside with [Appellant] until further Orders of the Court.

Although the phrase "until further orders of the court" is generally construed to denote permanency, when the phrase is read in the context of this order, it could also be reasonably interpreted to indicate that the trial court will transfer custody back to Appellee upon completion of her active military duty. This ambiguity is further supported by the fact that no relevant findings or affidavits pursuant to KRS § 403.340 are present or referenced in the language of the February 10, 2003, order, nor is there any reference whatsoever to the December 17, 1996, permanent custody order being modified thereby.

In light of the inherent ambiguity of the February 10, 2003, order, we next look to the intention of the trial court which is undisputed in this case. By its own admission and pursuant to the plain language of the order itself, the trial court intended to accomplish the intent of the parties, who both agree that the order was meant to be temporary. It is therefore our duty to interpret the ambiguity in this case in favor of the trial court's intent. As such, we affirm the Court of Appeals' holding that the February 10, 2003, order was temporary and thus, did not effectuate a modification of the December 17, 1996, permanent custody order. The trial court abused its discretion when it refused to grant Appellee's July 28, 2004, motion to enforce the terms of the December 17, 1996, permanent custody order.

We also note that, although not controlling in this case, our interpretation of the February 10, 2003, order is consistent with the newly enacted KRS § 403.340(5) which provides as follows:

(5)(a) Except as provided in paragraph (b) of this subsection, any court-ordered modification of a child custody decree, based in whole or in part on:

1. The active duty of a parent or a de facto custodian as a regular member of the United States Armed Forces deployed outside the United States; or

2....