N.B. v. C.H.

Decision Date16 September 2011
Docket NumberNo. 2010–CA–002257–ME.,2010–CA–002257–ME.
Citation351 S.W.3d 214
PartiesN.B., Appellant, v. C.H., Appellee.
CourtKentucky Court of Appeals

OPINION TEXT STARTS HERE

Lisa J. Oeltgen, Ann D'Ambruoso, Lexington, KY, for appellant.

Robyn Smith, Louisville, KY, for appellee.

Before ACREE and WINE, Judges; LAMBERT,1 Senior Judge.

OPINION

ACREE, Judge:

N.B. (Mother) appeals the November 22, 2010 order of the Fayette Family Court addressing various issues regarding a minor child, M.H. (Daughter), born of Mother's marriage to C.H. (Father). We find no error in the family court's refusal to order Mother and Daughter to undergo additional reconciliation counseling, and we therefore affirm that portion of the order. The family court did err, however, in permitting Father to unilaterally decide, contrary to the order of joint custody and without the joint custodian's agreement, to relocate Daughter to Texas without conducting a hearing to determine whether relocation was in Daughter's best interests. We therefore vacate the portion of the order addressing those matters and remand the case for additional proceedings.

Facts and procedure

Mother and Father married in 1989 and had three children: the oldest is an emancipated child; another child who was near the age of emancipation immediately before this appeal 2; and Daughter, who was then fifteen years of age. The parties separated in February 2002, and a decree of dissolution was entered in August of that year. Sometime prior to the separation, Mother began experiencing depression.

She apparently believed it was in the best interests of her children that they stay primarily with Father during this time, though Mother remained active in their lives. This arrangement was reflected in the settlement agreement, incorporated by the divorce decree, which provided that the parties would be joint custodians of the children, that Father would be the primary residential parent, and that Mother would enjoy liberal timesharing.

Mother moved out of the marital home, but continued to reside in Louisville. Then, approximately four months after the divorce, Mother moved to California, where she found employment. Understandably, Mother was unable to maintain the same liberal timesharing schedule while she was in California, but she did keep in contact with the children during this time. She and Father strenuously disagree about the frequency and nature of the contact.

Mother moved back to Kentucky in October 2003 and subsequently remarried. 3 She attempted to resume more regular visitation with the children, but was met with resistance from Father and Daughter. After much legal wrangling, the family court ordered that the entire family—Mother and Step–Father, Father and his second wife C.B. (Step–Mother), and all the children—attend counseling with Dr. Marc Plavin.

Despite counseling, Mother and Father continued to wage war over the children, appearing frequently in the family court for resolution of a variety of disagreements. These included disagreements over child support payments, child care arrangements, holiday schedules, the children's eating habits and extracurricular activities, and an allegation that Step–Mother required that the children address her as “Mom” or “Mum.” During this time, the parties continued to share joint custody, with Father designated the primary residential parent and Mother enjoying timesharing.

Over time, Daughter began to feel alienated from Mother, and in late 2009, Daughter expressed her desire to stop spending time with her mother. Mother did not force Daughter to comply with the timesharing order, but did file a motion on September 21, 2009, requesting that the family court order the parties to undergo further counseling to resolve their issues. Initially, Father did not object to additional counseling. The parties ultimately agreed to seek the advice of Dr. David L. Feinberg regarding the appropriate course of counseling for Daughter.

Dr. Feinberg recommended that Daughter and Mother undergo reconciliation counseling, and to that end Mother requested that the family court enter a counseling order. Father reversed his position and opposed the motion.

Before a hearing could be conducted on Mother's motion for counseling, Father filed a document entitled “Notice of intent to relocate [Daughter]'s residence.” In this filing, Father represented that he intended to move to Texas and to take Daughter with him. He filed no motion for permission to relocate, or to modify custody or timesharing.

A hearing followed. The purported purpose of the hearing was to address Mother's motion for counseling and a subsequent motion for attorney's fees, but Mother's attorney took the opportunity to voice Mother's objection to Father's proposed relocation of Daughter.

At this point the issue of reconciliation counseling and the potential move to Texas became intertwined, and neither the parties nor the court appeared able to separate them. Following Mother's objection to relocation, Father's attorney represented that no move was imminent, and indeed that it might not take place at all. He offered to postpone any decision about moving to Texas until the counseling issue had been resolved.

Dr. Feinberg then testified. He admitted that it was unlikely that reconciliation counseling would reach the desired level of success. Nevertheless, he recommended that Daughter and Mother begin reconciliation counseling as soon as possible because if the process were never begun the likelihood of reconciliation was effectively zero. Despite expressing some reluctance to follow the doctor's recommendation, the family court sustained Mother's motion and ordered the reconciliation counseling. Notwithstanding Father's representations that he would postpone relocating to Texas with Daughter until the counseling issue was resolved, Mother filed a written objection to Father's relocation proposal.

Mother and Daughter attended one counseling session with family therapist Marcia Malone Bell. It was unsuccessful, and Father refused to force Daughter to attend another session. Mother filed a motion to compel compliance with the counseling order.

The family court heard evidence on the motion. Bell testified in an evidentiary hearing and cautioned against “pushing” Daughter into counseling she did not want. The family court also conducted two in camera interviews of Daughter in the summer of 2010. Daughter expressed in both sessions a distrust of her mother, founded on a belief that Mother routinely lied about various matters, including that she loved Daughter. The family court did not immediately rule on Mother's motion to enforce its counseling order, but, as will be seen, eventually denied it. Counseling was effectively discontinued.

Mother subsequently obtained information which caused her to believe Father, in fact, had already moved to Texas, taking Daughter with him. She filed a document requesting that the family court order Father to immediately return Daughter to Kentucky and to order Father's compliance with the order of joint custody 4 and the original order of reconciliation counseling. Father's response was that he and Daughter had established dual residences, one in Texas and one in Kentucky, and that his continued contacts with Kentucky were insufficient to trigger the requirements of Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008) for modifying the original custody and timesharing order. He also represented that the joint custody situation had been unworkable for some time and indicated that he had assumed all the decision-making responsibilities regarding Daughter.

Following a hearing, the family court entered an order on Mother's latest motion. The judge acknowledged that Daughter resided in Texas with Father, but denied Mother's motion for the immediate return of Daughter to Kentucky, denied her motion to compel Father's compliance with the order of joint custody, and denied her request for continued reconciliation counseling. This appeal followed.

Analysis

The briefs raise several issues. We will address them as follows. First, we will address the preliminary question whether the order from which Mother takes her appeal is final and appealable. Next, we will address Mother's claim that the family court abused its discretion when it refused to compel Daughter to attend counseling. Finally, we will address the issues of Daughter's relocation. Within that final section, we will: (1) address the inapplicability to this case of the Kentucky Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), KRS 403.800 et seq. (2) discuss Pennington' s substantive points of law applicable here; (3) describe Pennington's applicable procedural points of law; and (4) identify, by applying Pennington, which parent in this case bears the burden of proof in the relocation dispute.

The November 22, 2011 order is properly the subject of this Court's review

We will first dispose of Father's contention that the order is not final and appealable, and therefore cannot be reviewed by this Court. 5 Long ago, our former Court of Appeals made it clear that “the court granting the divorce retains jurisdiction to revise orders relative to the care and custody of children.” Duncan v. Burnett, 292 Ky. 269, 166 S.W.2d 419, 421 (1942) (involving custodial parent's motion to relocate to Pennsylvania). The question of Daughter's care and custody is a continuing matter to be considered whenever it is properly brought before the family court. Gates v. Gates, 412 S.W.2d 223, 224 (Ky.1967) (citing Cole v. Cole, 299 Ky. 319, 185 S.W.2d 382 (1945)). When, by the exercise of its continuing jurisdiction, the family court enters an order regarding a minor child's care and custody, that order “is an appealable order and this Court may review it.” Gates, 412 S.W.2d at 224 (citing Duncan, 166 S.W.2d at 421); Witt v. Witt, 307 S.W.2d 1, 3 (Ky.1957) ([W]e can review such questions as maintenance, alimony and the custody of minor children.”).

We...

To continue reading

Request your trial
19 cases
  • v. A.H.
    • United States
    • Kentucky Court of Appeals
    • April 17, 2015
    ...jurisdiction is not an issue, the UCCJEA is not applicable, and the trial court is in error by applying it." (citing N.B. v. C.H., 351 S.W.3d 214, 221 (Ky. App. 2011)). Rejecting the limitations of KRS 403.240 and .2704 in favor of the more recently enacted UCCJEA, the Supreme Court said "K......
  • Brown v. Brown
    • United States
    • Kentucky Court of Appeals
    • April 22, 2016
    ...capable of being final and appealable pursuant to CR 54.02. The orders described in note 2 were likewise appealable. See N.B. v. C.H., 351 S.W.3d 214 (Ky. App. 2011) (explaining post-dissolution orders relating to the care, custody, and visitation of minor children are proper subjects of an......
  • Irons v. Sims, 2018-CA-000539-ME
    • United States
    • Kentucky Court of Appeals
    • October 18, 2019
    ...child's care and custody, that order "is an appealable order and this Court may review it." Gates, 412 S.W.2d at 224[.]N.B. v. C.H., 351 S.W.3d 214, 219 (Ky. App. 2011). We thus find no issue regarding finality and deem the matter appealable and properly before this Court. We also disagree ......
  • Turner v. Turner
    • United States
    • Kentucky Court of Appeals
    • June 2, 2023
    ...v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). Similarly, we review for abuse of discretion its decisions regarding counseling, N.B., 351 S.W.3d at 220; and of costs, Culver v. Culver, 572 S.W.2d 617, 622 (Ky. App. 1978). However, we review its application and interpretation of statutes de novo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT