Lynch v. Lynch, 86-CA-2457-MR
| Decision Date | 25 September 1987 |
| Docket Number | No. 86-CA-2457-MR,86-CA-2457-MR |
| Citation | 737 S.W.2d 184 |
| Parties | Sherryl Frey LYNCH, Appellant, v. Boyd Lee LYNCH, Appellee. |
| Court | Kentucky Court of Appeals |
David B. Redwine, Winchester, for appellant.
Mitchell A. Charney, Edward L. Schoenbaechler, Louisville, for appellee.
Before COMBS, REYNOLDS and WEST, JJ.
This appeal arises from an order of the Fayette Circuit Court which changed appellant's sole custody of the parties' two minor children into a "joint reciprocal custody" arrangement in favor of both parents. Appellant maintains she was denied due process of law and a fair trial. We reverse as the record reflects, at a minimum, the appearance of a denial of due process.
Both parties are aware of the underlying facts behind this long-running dispute, and we therefore find it unnecessary to provide more than a brief recitation of the background. Sherryl Frey Lynch (appellant) and Boyd Lee Lynch (appellee) were married on August 4, 1973. Two children were born of this marriage, John (approximately 13 years old), and Leanne (approximately 8 years old). On October 13, 1982, appellee filed a petition for divorce. A decree of dissolution was entered by the Fayette Circuit Court on May 13, 1983. This decree, pursuant to a separation agreement, gave custody of the two children to appellant and provided appellee with open visitation.
However, this policy of open visitation was not successful and, within four months, appellee made his first motion for specific visitation. The parties' inability to reach any sort of understanding on visitation is amply illustrated in the over 400 pages of record which accompanied this action. The current dispute began on April 21, 1986, when appellee filed a motion for a change of custody.
A hearing on this motion began on September 2, 1986, and continued into the next day. During these two days, appellee presented most of his case-in-chief. By agreement, one of appellant's witnesses, a licensed psychologist, testified out of order. The hearing was then continued to October 3, 1986.
Appellee concluded his case-in-chief on that day. Appellant then began her argument and completed all of her evidence, except for one witness who the trial court deemed unnecessary. It was at this point in time that the court presented each party with a 16-page document explaining:
I have heard all of this testimony and I strongly believe that the decision should be made immediately in this case. I have undertaken to draw up Findings of Fact and Conclusions of Law and an Order in anticipation of not learning anything new today. I will give you copies of it, copies so that you and your clients may read it
* * *
Over appellant's objection, this order was subsequently entered.
The order, citing the inability of the parties to work out their visitation disagreements set up a system known as "joint reciprocal alternating custody." Briefly, this procedure divides the year into four three-month periods. During the first three months, one party (in this situation appellant) would have custody for three weeks, followed by one week in which the other party (appellee) would have custody, followed by three weeks for appellant, followed by one week for appellee, and so on. At the end of the first three-month period the times switch, giving appellee custody for three weeks, followed by appellant for one week, and so on. The sequence continues to reverse with each quarter.
It is not necessary for this Court to decide the appropriateness of such a system at this time. Appellant's primary argument is concerned with the manner in which this order was entered.
It is clear from the record that the trial court had prepared its findings, conclusions and order prior to the final day of testimony. Except for one witness, previously taken out of order, appellant had not presented any evidence until after the document had been prepared. Due process requires, at the minimum, that each party be given a meaningful opportunity to be heard. Utility Regulatory Commission v. Kentucky Water Service Company, Inc., Ky.App., 642 S.W.2d 591, 593 (1982); see also Somsen v. Sanitation Dist. No. 1 of Jefferson County, 303 Ky. 284, 197 S.W.2d 410, 411 (1946). Hearings should be...
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...of due process. "Due process requires, at the minimum, that each party be given a meaningful opportunity to be heard." Lynch v. Lynch, 737 S.W.2d 184, 186 (Ky.App. 1987) (citations omitted). "[A] party has a meaningful opportunity to be heard where the trial court allows each party to prese......
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Marchese v. Aebersold
...the record, cannot form the basis of a decision." Carpenter v. Schlomann, 336 S.W.3d 129, 132 (Ky. App. 2011) (quoting Lynch v. Lynch, 737 S.W.2d 184, 186 (Ky. App. 1987) ). We are satisfied that the trial court was improperly influenced by the use of extrajudicial evidence. Absent a valid ......
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...the record, cannot form the basis of a decision." Carpenter v. Schlomann, 336 S.W.3d 129, 132 (Ky. App. 2011) quoting Lynch v. Lynch, 737 S.W.2d 184, 186 (Ky. App. 1987). Finally, our Supreme Court has also noted the importance of KRE 201(e)'s requirement to allow the adverse party an oppor......