Page v. Page, NO. 2018-CA-001634-ME

CourtCourt of Appeals of Kentucky
Writing for the CourtDIXON, JUDGE
Decision Date31 May 2019
Docket NumberNO. 2018-CA-001634-ME


NO. 2018-CA-001634-ME

Commonwealth of Kentucky Court of Appeals

MAY 31, 2019


ACTION NO. 16-CI-00020


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DIXON, JUDGE: Samantha Page appeals from the Cumberland Circuit Court's orders granting Matthew Page's motions to modify timesharing and to enroll their child in Cumberland County, Kentucky, schools. Finding no error, we affirm.

The Pages' minor child was born in 2013. The parties were later married in 2014, separated in 2015, and entered into a written Separation

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Agreement, which was incorporated into their final decree of dissolution, in 2016. The Separation Agreement awarded the parties joint physical custody of their child and equal timesharing until the child started school, at which time Matthew was to get the child every weekend and on holidays, pursuant to the standard visitation schedule. Matthew was awarded, and still resides in, the parties' marital home. Samantha moved to Tennessee prior to entry of the final decree of dissolution but has relocated to various residences within Tennessee since that time without prior approval of the court.

In July of 2017, Matthew moved the trial court to modify the parties' timesharing with their child so that he would be designated the primary residential parent and Samantha would exercise standard visitation in accordance with the model timesharing guidelines. He also sought permission to enroll the child in Cumberland County, Kentucky, schools. The bases for Matthew's requests were the stability he offers the child, compared to the frequent changes in Samantha's residence, as well as his assertion that most of the child's family resides in Cumberland County, Kentucky.

Samantha responded, asserting that Matthew failed to file affidavits as required by KRS1 403.340(2) to modify a custody decree within two years of its entry. Samantha asserted that it was not in the best interest of the child to "veer

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away from" the parenting schedule previously agreed upon by the parties. She also contended that many of her—and therefore her child's—family members live in Tennessee rather than in Kentucky as alleged by Matthew in his motion.

A hearing was held before a Domestic Relations Commissioner in August of 2017. At the hearing, Samantha admitted that she had moved at least four times in the past two years and had never notified the court of her relocation. Matthew testified that the child spent at least seventy percent of the time with him. Samantha conceded that after the dissolution of the parties' marriage in June of 2016, and until October of 2016, she allowed Matthew to have additional time with the child due to travel required by her employer. While her testimony appeared to indicate that she believed the parties' timesharing had returned to a more equal basis, Samantha testified that she was still allowing Matthew additional time with the child as recently as only a few weeks prior to the hearing.

In January of 2018, the Commissioner filed his recommended findings of fact and order determining that it would be in the child's best interest to reside primarily with Matthew and visit with Samantha pursuant to the model timesharing guidelines. The Commissioner also specifically found "equal timeshare would not be adequate given the distance [Samantha] has moved[.]" Samantha thereafter filed exceptions to the Commissioner's findings.

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The trial court conducted its hearing in April of 2018. Its order adopting and approving the Commissioner's recommended findings of fact and granting modification of timesharing was entered in August of 2018. A subsequent order establishing the visitation schedule was entered two days later. Samantha moved the trial court to alter, amend or vacate its order, but her request was initially denied. The trial court thereafter entered an amended order, however, finding that Samantha's request for clarification of the visitation schedule—as it related to exchange times and locations—within her motion had merit and addressed it accordingly. This appeal followed.

Samantha presents four arguments on appeal: (1) the trial court improperly exercised jurisdiction to hear and rule on the motion to modify timesharing in the absence of two affidavits required by KRS 403.340(2); (2) the trial court's orders do not comply with the provisions of KRS 403.270, as amended effective July 14, 2018; (3) the trial court's order incorporating the Domestic Relations Commissioner's recommended order is based upon clear factual and procedural errors and is manifestly contrary to the weight of evidence; and, (4) the trial court's application of KRS 403.320(3) and the model timesharing guidelines to award "standard visitation" to Samantha were unsupported by sufficient factual findings. We will address each argument, in turn.

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Samantha's first argument, that the trial court improperly exercised jurisdiction to hear and rule on the motion to modify timesharing in the absence of the two affidavits required by KRS 403.340(2), is easily resolved. The trial court correctly observed that Matthew's motion was to modify the parties' timesharing rather than custody of the child. KRS 403.340 defines "custody" as "sole or joint custody, whether ordered by a court or agreed to by the parties." The parties here agreed to joint custody in their Separation Agreement as incorporated into the final decree of dissolution of their marriage. No subsequent motions nor orders in the record before us have sought to alter this joint custody.

As the motion which is the subject of this appeal sought only to modify the parties' timesharing, the trial court correctly conducted its analysis under KRS 403.320, which provides, in part, that the "court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]" Therefore, Samantha's argument on this issue is without merit.

Moreover, Samantha's attempt to distinguish this case from Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), as modified (Oct. 24, 2008), must also fail. Samantha's quibbles concerning the terms "primary residential parent" and "visitation" were addressed by our highest court in Pennington. While it is true there are some factual differences between these two cases, the logic and

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analysis of Pennington are nonetheless applicable. The Pennington Court observed:

[t]he weekend parent does not have "visitation," a sole-custody term which is frequently misused in this context, but rather has "time-sharing," as he or she is also a legal custodian. However, in practice, the terms visitation and timesharing are used interchangeably. Additionally, one parent may be designated the "primary residential parent," a term that is commonly used to denote that the child primarily lives in one parent's home and identifies it as his home versus "Dad's/Mom's house."

. . . .

The obvious problem is that parties often ask for one thing when they are actually seeking the other, due to the unique nature of their shared (joint) custody or split (sole) custody. Courts have struggled ever since the concept of joint custody emerged with what part physical or residential possession of the child plays in each type of custody. However, a modification of custody means more than who has physical possession of the child. Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree. This is true whether the parent has sole or joint custody: decision-making is either vested in one parent or in both, and how often the child's physical residence changes or the amount of time spent with each parent does not change this.

. . . .

Thus, the first question on a custody modification or relocation motion is, "Is the motion actually seeking modification of custody or visitation/timesharing?"

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. . . .

Every case will present its own unique facts, and the change of custody motion or modification of visitation/timesharing must be decided in the sound discretion of the trial court. This is true whether the child lives with one parent in an arrangement like a sole custody arrangement or whether there is equal timesharing or something in between.

Id., at 765, 767, 768, 769 (internal footnotes omitted).

Thus, in view of the foregoing, Samantha's contention that the trial court abused its discretion must likewise fail. Upon review, it is clear the trial court followed Pennington's guidance, and, therefore, it was within the trial court's discretion to modify the parties' timesharing. "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles." Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013) (citation omitted). Our review of the record reveals no abuse of discretion; therefore, we must affirm.

Second, Samantha contends that the trial court's orders do not comport with the provisions of KRS 403.270, as amended effective July 2018. In its amended order following Samantha's motion to alter, amend or vacate, the trial court found:

[t]he intervening change in the provisions of K.R.S. 403.270, which became effective with House Bill 528 on July 14, 2018, do not apply to this case and that the law in effect at the time of the hearing in this case before the

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Domestic Relations Commissioner on August 30, 2017, is the law applicable to the issue before the Court. The Court further finds that it made specific findings of fact as required by the

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