Scheer v. Zeigler

• Decision Date: 23 June 2000
• Docket Number: No. 1998-CA-002017-MR.,1998-CA-002017-MR.
• Citation: 21 S.W.3d 807
• Parties: Robert L. SCHEER, Appellant, v. Donna J. ZEIGLER, f/k/a Donna J. Scheer, Appellee.
• Court: Kentucky Court of Appeals

Page 807

21 S.W.3d 807

Robert L. SCHEER, Appellant, v. Donna J. ZEIGLER, f/k/a Donna J. Scheer, Appellee.

No. 1998-CA-002017-MR.

Court of Appeals of Kentucky.

June 23, 2000.

Burke B. Terrell, Paducah, for Appellant.

Robert C. Manchester, Paducah, for Appellee.

Before: The Full Court Sitting En Banc.

BUCKINGHAM, Judge.

Robert L. Scheer appeals from an order of the McCracken Circuit Court denying his motion to modify joint custody due to his failure to meet the requirements of Mennemeyer v. Mennemeyer, Ky. App., 887 S.W.2d 555 (1994). Because we believe that Mennemeyer and Benassi v. Havens, Ky.App., 710 S.W.2d 867 (1986), should be overruled, we reverse and remand.

Robert Scheer and Donna J. Zeigler, f/k/a Donna J. Scheer, were married in 1989. In February 1996, the trial court entered a decree of dissolution dissolving their marriage. The parties were awarded joint custody of their son, who was five years old at the time. Donna was designated as the child's primary caretaker, although the child apparently spent more time in the residence of his father than in the residence of his mother.¹

In late 1997, Donna remarried and planned to move to Atlanta, Georgia, with her new husband. Robert subsequently filed an action in the trial court seeking custody or, alternatively, an order making him the primary caretaker of the child.² The matter was referred to a domestic relations commissioner ("DRC") who found that the parties were unable to cooperate with the joint custody order, that Robert had therefore met his burden under Mennemeyer³ that the child was integrated into Robert's home, that the best interest of the child was that he continue to reside primarily in Robert's home, and that Robert and Donna should continue to share joint custody but with Robert being the primary residential custodian. After reviewing Donna's exceptions to the DRC's report, however, the trial court determined that there was not an inability of the parties to cooperate concerning their son's welfare and denied Robert's motion to modify custody based upon Mennemeyer.

While this case was pending, this court rendered an opinion in Briggs v. Clemons, Ky.App., 3 S.W.3d 760 (1999),⁴ which held that "if a party to joint custody can prove that the child's present environment in the custody of the other parent endangers his physical, mental, or emotional health, that is sufficient to likewise modify joint custody, even if the evidence establishes that the parties have been cooperating in good faith with one another." Id. at 762. The court surmised that Mennemeyer "hinted ... that if a party to joint custody can meet the higher burden of proving grounds sufficient to modify an order of sole custody under KRS 403.340, there were per se sufficient grounds to modify joint custody." Id.

Kentucky Revised Statute (KRS) 403.340(2) provides in pertinent part that

the court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. In applying these standards, the court shall retain the custodian appointed pursuant to the prior decree unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of the petitioner with consent of the custodian; or

(c) The child's present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages to him; or

(d) The custodian has placed the child with a de facto custodian.

KRS 403.340(2) (emphasis added). Although the DRC made a finding which would have constituted a sufficient ground for modifying custody under the statute (integration into Robert's home with Donna's consent), the trial court nevertheless denied the motion because Robert had failed to prove that the parties were unable to cooperate in the joint custody arrangement as required by Mennemeyer Having examined Kentucky's history of joint custody, including the statutes and appellate court decisions through Briggs, we determine that Benassi and Mennemeyer should be overruled and this matter remanded to the trial court.

In order to analyze this issue, it is necessary to outline the history of joint custody in Kentucky and to explain the origin of Mennemeyer and its progeny. In 1980, the General Assembly enacted KRS 403.270(3) which gave trial courts the right to grant joint custody to a child's parents "if it is in the best interest of the child." KRS 403.270(3).⁵ In Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984), one of the first cases in which joint custody was discussed to any degree by a Kentucky appellate court, this court defined joint custody as "an arrangement whereby both parents share the decision making in major areas concerning their child's upbringing, a role traditionally enjoyed by both parents during the marriage, but which is usually reposed solely in one parent following dissolution." Id. at 299.

In 1986, the Kentucky Supreme Court rendered an opinion in Carnes v. Carnes, Ky., 704 S.W.2d 207 (1986), a case involving facts which are similar to those in this case. In Carnes, the trial court awarded joint custody to the mother and father of two infant children. The mother was granted the actual physical custody of the children for the greater part of the time, but when she encountered personal difficulties, she allowed the children to live with their father. After the children resided with their father for approximately six months, he moved the trial court to modify the joint custody decree and grant him sole custody. Pursuant to KRS 403 .340(2)(b), the trial court granted sole custody to the father based on a finding that the children had become integrated into his family unit with the consent and permission of the mother. Although the court of appeals reversed the case, the supreme court reversed the court of appeals and upheld the trial court's modification of joint custody.

The facts in Carnes are similar to the facts in this case in that, in each case, a father sought to modify joint custody on the statutory grounds that the child had become integrated into his home. Carnes is significant because it recognizes a modification of a joint custody arrangement under KRS 403.340, the general custody modification statute. Furthermore, Carnes has precedential value, as it has never been overruled. See Rule of the Supreme Court (SCR) 1.030(8)(a).⁶

One month after the supreme court rendered its decision in Carnes, this court rendered Benassi v. Havens which held that "joint custody is no award at all when considering modification of the [joint custody] arrangement" and that "when joint custody is awarded ... and the parties subsequently disagree, neither KRS 403.340 nor KRS 403.350 applies." Benassi, 710 S.W.2d at 869. The Benassi court further held that in such situations "modification should be made anew under KRS 403.270 as if there had been no prior custody determination." Id. Therefore, the court of appeals held in Benassi that KRS 403.340 did not apply to joint custody modifications even though the supreme court had recognized the statute's applicability to such modifications one month earlier in Carnes.

Then, with Hardin v. Hardin, Ky.App., 711 S.W.2d 863 (1986), this court began developing a line of cases which expressed its view that the cooperation of the parties is essential to joint custody arrangements. The Hardin court stated that "[i]t would seem obvious that joint custody cannot be in the best interests of the children where the parents are not sufficiently understanding and mature enough to cooperate in such an arrangement." Id. at 865.

Six years later, in Chalupa v. Chalupa, Ky.App., 830 S.W.2d 391 (1992), this court established for the first time, without citing statutory authority, that "[j]oint custody can be modified if a party is acting in bad faith or is uncooperative."⁷ Id. at 393. The Chalupa court also stated that "[t]he trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent." Id.

In 1993, the Kentucky Supreme Court rendered Squires v. Squires, Ky., 854 S.W.2d 765 (1993), wherein the court discussed at length the concept of joint custody and held that a cooperative spirit between parties was not a condition precedent to the entry of a joint custody award. Although Squires did not involve a custody modification, the court recognized the trial court's "power to modify custody in the event of a bad faith refusal of cooperation."⁸ Id. at 769.

The following year, the court of appeals rendered Mennemeyer, in which we held that "in nonconsensual modification situations involving joint custody, ... the trial court may intervene to modify a previous joint custody award only if the court first finds that there has been an inability or bad faith refusal of one or both parties to cooperate." Mennemeyer, 887 S.W.2d at 558 (emphasis added). Mennemeyer established "a threshold procedural requirement, regarding the existence of an inability or bad faith refusal of the parties to cooperate, which must be met before a trial court may consider whether to modify an award of joint custody." Jacobs v. Edelstein, Ky.App., 959 S.W.2d 781, 784 (1998). Mennemeyer also reaffirmed the Benassi decision, stating that joint custody is no award of custody at all when considering modification and that modification of a joint custody decree is not governed by the general custody modification statutes of KRS 403.340 and KRS 403.350 but is determined pursuant to KRS 403.270. Mennemeyer, 887 S.W.2d at 556.

This court reaffirmed the principles of Mennemeyer in Stinnett v. Stinnett,...