Nichols v. Nichols, 092421 KYCA, 2020-CA-0837-MR

CourtCourt of Appeals of Kentucky
JudgeBEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
Writing for the CourtJONES, JUDGE:
PartiesMARIAH NICHOLS APPELLANT v. TIFFANY BRICE NICHOLS APPELLEE
Docket Number2020-CA-0837-MR

MARIAH NICHOLS APPELLANT

v.

TIFFANY BRICE NICHOLS APPELLEE

No. 2020-CA-0837-MR

Court of Appeals of Kentucky

September 24, 2021

NOT TO BE PUBLISHED

APPEAL FROM BELL CIRCUIT COURT HONORABLE ROBERT V. COSTANZO, JUDGE ACTION NO. 19-CI-00254.

BRIEF FOR APPELLANT: Levi Z. Turner, Middlesboro, Kentucky.

BRIEF FOR APPELLEE: Kellie D. Wilson, Harlan, Kentucky.

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

OPINION

JONES, JUDGE:

The Appellant, Mariah Nichols, appeals the Bell Circuit Court's Findings of Fact and Conclusions of Law as incorporated by reference into its final Judgment and Decree dissolving Mariah's marriage to the Appellee, Tiffany Brice Nichols, awarding the parties joint legal custody of their minor child, G.T.W.A. ("Child"), and designating Tiffany as Child's primary residential custodian. On appeal, Mariah asserts the circuit court erred when it awarded Tiffany substantially more parenting time with Child without first having made a finding that equal parenting time was not in Child's best interest as required by KRS1 403.270(2). Having reviewed the record and being otherwise sufficiently advised, we agree with Mariah. KRS 403.270(2) creates a rebuttable presumption in favor of equal timesharing. The circuit court's order does not contain any findings to explain why it chose to deviate from the presumption. As such, it does not comply with Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011), and Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011), which require written findings of fact in all matters affecting child custody and timesharing. Accordingly, we must vacate and remand the order as related to timesharing.

I. Background

Tiffany and Mariah were married on October 10, 2016. In September of 2019, Tiffany petitioned the circuit court to dissolve the parties' marriage. Tiffany was pregnant at the time she filed the petition for dissolution. On December 29, 2019, while the marriage was still intact, Tiffany gave birth to Child.

Approximately three months after Child's birth, the circuit court conducted a final evidentiary hearing. Custody and timesharing were the primary focus of the hearing. Because she was still breastfeeding Child, Tiffany wanted to be designated Child's primary residential custodian; Tiffany did not object to Mariah having limited time with Child. However, she was concerned that she would not be able to pump and store enough breast milk to accommodate the "week on/week off" schedule proposed by Mariah, especially given the three-hour distance between the parties' residences. For her part, Mariah testified that she was able to care for Child, provide him a safe and nurturing environment, and desired equal time with him.

On June 16, 2020, the circuit court entered its Findings of Fact and Conclusions of Law ("Findings"), which it incorporated by reference into a final Judgment and Decree entered the same day. Paragraph 6 of the circuit court's Findings provides: The Court finds that it is in the best interest of the infant child for the Parties to be awarded Joint custody with [Tiffany] being the Primary Residential Custodian and [Mariah] having visitation as set out in the attached visitation schedule of Bell Circuit Court. Visitation exchanges shall be conducted at Exit 38 on Interstate 75, London, Kentucky. [Mariah] shall pay child support in compliance with the Kentucky Child Support Chart.

The circuit court appended its timesharing schedule for children younger than eighteen months to its Findings. Pursuant to that schedule, Mariah has timesharing with Child every first and third weekend day from 1:00 p.m. to 6:00 p.m. and every Wednesday from 6:00 p.m. to 8:00 p.m. Application of the schedule results in Tiffany having Child greater than 95% of the time.

II. Analysis

Before we delve into the merits of this appeal, we must first address Tiffany's motion to dismiss. Tiffany argues that we should strike Mariah's brief and dismiss her appeal for failure to comply with the briefing requirements of CR276.12(4). Tiffany points out that Mariah failed to conform her brief to the requirements of CR 76.12(4)(c)(iv), which requires the statement of the case to contain ample references to the record, and CR 76.12(4)(c)(v), which requires the beginning of each argument to contain a statement with reference to the record showing where the...

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