Robinson v. Robinson

• Decision Date: 01 December 2006
• Docket Number: No. 2006-CA-001095-ME.,2006-CA-001095-ME.
• Citation: 211 S.W.3d 63
• Parties: Eugenia Sue Wynn ROBINSON, Appellant, v. Robert Dale ROBINSON, Appellee.
• Court: Kentucky Court of Appeals

211 S.W.3d 63

Eugenia Sue Wynn ROBINSON, Appellant, v. Robert Dale ROBINSON, Appellee.

No. 2006-CA-001095-ME.

Court of Appeals of Kentucky.

December 1, 2006.

Scott M. Webster, London, KY, for appellant.

No Brief for Appellee.

Before ACREE, BARBER, and TAYLOR, Judges.

OPINION

ACREE, Judge.

When the Rockcastle Circuit Court entered a judgment dissolving the marriage of Eugenia "Gina" Sue Wynn Robinson (Gina) and Robert Dale Robinson (Dale) on June 23, 2005, it awarded the couple joint custody of their three (3) minor children with Gina as the "primary custodian."¹ On March 15, 2006, the circuit court modified the joint custody order by making Dale the "primary custodian." Gina appeals that order modifying custody. For the reasons stated, we reverse.

On March 11, 2004, Gina filed her petition for the dissolution of her fourteen-year marriage to Dale. Dale had previously removed himself from the marital residence and resided for the pendency of this action with his parents. Both parties in their initial pleadings expressed a desire for sole custody of their three (3) minor children.

Dale was first to move the court for an order of temporary custody. Prior to the hearing on that motion, the parties were able to agree on certain issues. On June 4, 2004, the court made an entry on its docket sheet² noting among other things that mediation had resulted in the parties' agreement that Gina was to have possession of the marital residence until the divorce was final. Though not specifically stated in the record, the parties apparently agreed that the children would reside primarily in the marital residence with Gina. Notably, the court entered no temporary custody order nor did the court order either parent to pay child support.

On July 17, 2004, Gina found it necessary to move the court for temporary child support. Dale responded on July 28, 2004, by moving the court for his own order that he "be designated primary custodian" and that he also be awarded exclusive use of the marital residence. The court, still without entering a custodial order, directed the parties to "maintain status quo."

Six months later, on January 14, 2005, still with no custody or support order in place, Gina re-noticed her motion for temporary child support. At the hearing on the motion ten days later, as reflected only on the docket sheet, the court "set c/s [child support to be paid by Dale] as $575.00 which is a $50.00 reduction for extra time." The "extra time" referenced was one additional day beyond the standard visitation schedule that the parties agreed would be Dale's visitation. Still, no custody order was entered.

According to the Mandatory Case Disclosures filed by Dale and Gina one week before the court's entry of its Findings of Fact, Conclusions of Law and Decree of Dissolution (Decree), custody continued to remain an issue. The first custodial ruling by the trial court appears in the Decree entered June 23, 2005. It stated:

The court finds that the best interest of the children will be served by awarding the parties joint custody with the mother being the primary custodian, and the father having standard visitation. . . .

The Decree went on to divide the marital and non-marital assets and debts between the parties. Finally, the Decree contains the following relevant provision:

If either party should relocate their residence more than 150 miles from Rockcastle County, the time-sharing arrangement from herein shall be subject to de nova [sic] review and modification.

Shortly after entry of the Decree, Dale stopped paying certain debts assigned to him. Because the parties' creditors were not bound by the trial court's distribution of the parties' liabilities, the creditors pursued both Gina and Dale for payment; that is, until Dale filed a petition in bankruptcy on October 16, 2005. Thereafter, those creditors pursued only Gina. This added $17,501.78 to her liabilities. She soon was compelled to list the marital property for sale.

It was about this time that Gina received and had been contemplating an offer of employment and managerial training from a Chili's restaurant chain. This employment would provide her and her family with a substantially greater income. However, if she accepted, she would be required to relocate to the Memphis, Tennessee area.

On October 17, 2005, Gina brought a motion to modify Dale's mid-week visitation before the court because she believed that the relocation provision of the Decree required it. The motion was initially heard on October 21, 2005. The court, however, did not rule on Gina's motion then or at any time.

Instead, Dale's counsel requested additional time to respond to the motion and indicated he would be moving to set aside the Decree as to custody on the basis of the newly discovered evidence that Gina desired to move out of state. He further informed the court that he realized Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) would normally put the burden on his client to show the contemplated move would endanger the children. He believed, however, that setting aside the Decree would allow a de novo review of the permanent custody determination without the need to show endangerment but, instead, only the best interests of the children.

After hearing from both counsel, the court indicated Dale's need to take discovery to determine "whether or not it's in the children's best interest or what the harm might be to move to Memphis." TAPE No. 089; 10/21/05; 9:14:45. The court then gave Dale "ten (10) days to file motion for modification."

Dale's counsel stuck with his strategy and filed a "Motion to Set Aside Custody Decree" pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. He further requested a subsequent "de nova [sic] custody hearing pursuant to the standard of Kentucky Revised Statute (KRS) 403.270, rather than KRS 403.340. . . ." ([Appellee's] Motion to Set Aside Custody Decree, R.118).

The basis of Dale's CR 60.02 motion was fraud and newly discovered evidence. He claimed he only agreed to allow Gina to serve as their children's primary residential custodian because "during the pendency of this action, [Gina] repeatedly assured [Dale], the Court, and her own attorney that she had no plans to leave the state of Kentucky with the children." ([Appellee's] Motion to Set Aside Custody Decree, R.118).

Dale's motion was heard on November 4, 2005. During the hearing, Dale's counsel represented to the trial court that there was a "clause in their joint decree that if Mrs. Robinson relocated more than 120³ miles, that we would revisit the issue of custody de novo." (TAPE No. 092; 11/4/05; 9:21:35). The trial court accepted this representation at face value:

Court: I guess we could have a de novo hearing as to custody but the, if the agreement [sic], and I wasn't aware of that, but if the separation agreement [sic] does have the 120 mile distance provision in it, then there would be a de novo hearing I would imagine.

(TAPE No. 092; 11/4/05; 9:24:26).

The court then denied Dale's CR 60.02 motion. Without stating a basis for continuing to consider modification, the court ordered "de nova [sic] testimony to be taken by deposition if Petitioner in fact moves 120 miles from Mt. Vernon per separation agreement . . . ."

Faced with mounting expenses, Gina did make the decision to pursue the significantly more lucrative managerial-track employment with the restaurant chain in Memphis. On December 2, 2005, after being informed of Gina's decision, the circuit court ordered testimony to be taken by deposition and submitted to the court. On March 15, 2006, the trial court, in pertinent part, ruled as follows:

. . . The parties, by agreement, acknowledge that should either party relocate more than 150 miles from Rockcastle County, the custody and visitation issues would be subject to review and modification. Petitioner has relocated to the Memphis, Tennessee area, thus subjecting the decree to de novo review on these issues.

. . . .

IT IS ORDERED that the custody award, child support and visitation order be modified [such] that the parties shall have joint custody of the minor children . . . . The father, Robert Dale Robinson, shall be the primary custodian, and the mother, Eugenia [sic] Sue Wynn Robinson, shall have standard visitation . . . except there shall be no midweek visitation. . . . The mother testified . . . that her income would be $35,000 per year. IT IS THEREFORE ORDERED that the mother shall pay child support to the father in the amount of $710.84. . . .

It is this order that Gina appeals. Because the trial court erred in its interpretation of the June 23, 2005, Decree and in its application of law, we must reverse and order enforcement of the original permanent custody award contained in the Decree.

Child custody relocation litigation is not a new phenomenon in Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549 (1943)("[S]ole question presented . . . is whether the chancellor erred in modifying the judgment so as to permit [the custodial parent] to move to Pennsylvania and take the children with her."). The arrival of the 21st century, however, heralded an accelerated evolution in this area of the law. This is true nationally⁴ as well as in Kentucky where our courts continue to address increasing numbers of such cases.⁵ Unfortunately despite Kentucky's recent legislative efforts,⁶ Chapter 403 of the Kentucky Revised Statutes (Dissolution of Marriage Child Custody) fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce.

The vast majority of state legislatures has passed a wide variety of laws directly addressing the relocation issue; nearly half require a relocating custodial parent to give advance notice of the move to the other parent, the court, or both.⁷ Kentucky is among the minority of states that have no specific statute....