Shafizadeh v. Bowles

• Decision Date: 22 December 2011
• Docket Number: No. 2010–SC–000747–MR.,2010–SC–000747–MR.
• Citation: 366 S.W.3d 373
• Parties: Saeid SHAFIZADEH, Appellant, v. Hon. Jerry J. BOWLES, Judge, Jefferson Circuit Family Court, Appellee. and Denise Shafizadeh (now Dugas); and A.B.S. and D.J.S., minor children, Real Parties in Interest.
• Court: United States State Supreme Court — District of Kentucky

366 S.W.3d 373

Saeid SHAFIZADEH, Appellant,

v.Hon. Jerry J. BOWLES, Judge, Jefferson Circuit Family Court, Appellee.andDenise Shafizadeh (now Dugas); and A.B.S. and D.J.S., minor children, Real Parties in Interest.

No. 2010–SC–000747–MR.

Supreme Court of Kentucky.

Sept. 22, 2011.

Rehearing Denied Dec. 22, 2011.

Saeid Shafizadeh, Louisville, KY, for appellant.

Jerry Jay Bowles, Louisville, KY, for appellee.

Michelle M. Chalmers, Louisville, KY, for Real Party in Interest, Denise Shafizadeh (Now Dugas).

Trisha Anne Zeller–James, Louisville, KY, for Real Parties in Interest, Minors, A.B.S. And D.J.S.

Opinion of the Court by Justice CUNNINGHAM.

Appellant, Saeid Shafizadeh (hereinafter Saeid), and real-party-in-interest, Denise Shafizadeh (now Dugas) (hereinafter Denise), were married on January 27, 1982, in Henderson, St. Martin Parish, Louisiana. They moved to Louisville, Kentucky in January of 1983. The couple had four children, two of whom are now adults and two of whom are now minors. The minor children, A.B.S. and D.J.S., are also named herein as real-parties-in-interest. Saeid and Denise separated on December 27, 2006, and the petition for the dissolution of their marriage was filed on February 7, 2007. The two reached an agreement to share joint custody of their two minor children and signed an “Agreed Order of Custody” which was incorporated into the decree of dissolution. The formal divorce decree was entered on July 24, 2008, in the Family Division of the Jefferson Circuit Court.

On June 15, 2009, Denise filed a pro se Notice–Motion–Order Regarding Visitation, requesting a change in visitation and parenting schedule. On more than one occasion, Saeid petitioned the Appellee, Hon. Jerry J. Bowles, Judge of the Jefferson Circuit Family Court, to disqualify himself and that a special judge be appointed to consider the matter, all of which were denied. On August 12, 2010, the Appellee granted Denise's motion to relocate to the Lafayette, Louisiana area with the two minor children and entered an order modifying the parenting schedule.

On September 24, 2010, Saeid moved the Court of Appeals for a writ of prohibition and for emergency relief under CR 76.36. The Court of Appeals denied the motion, determining that Saeid had failed to meet the threshold requirements for the issuance of a writ. Accordingly, the Court of Appeals denied the motion for emergency relief as moot. Saeid now appeals that decision to this Court. Additional facts will be set out as necessary.

The threshold requirements for the issuance of a writ of prohibition are set out in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004):

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

The Court of Appeals summarily dismissed Saeid's claim of lack of jurisdiction by the Jefferson Circuit Family Court.¹ It addressed, in most of its opinion, the second class of writ, finding that Saeid had failed to satisfy the adequate remedy by appeal requirement. On appeal to this Court, however, Saeid argues only that he was entitled to a writ of the first class, i.e., that the family court was proceeding outside of its jurisdiction.

Saeid argues that the Court of Appeals erred in finding that the Jefferson Circuit Family Court had jurisdiction over Denise's motion to modify the parenting schedule. Saeid contends that the motion should be construed as a motion to modify custody rather than the timesharing or visitation schedule. Unlike motions to modify parenting schedules, motions to modify custody require supporting affidavits before the trial court obtains jurisdiction over them. Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006). Saeid's argument continues that, since this motion should be treated as a modification of custody and there were no affidavits accompanying it, the family court lacked jurisdiction to consider it. We disagree.

We review appeals from the denials of writs based on questions of law de novo. Rehm v. Clayton, 132 S.W.3d 864, 866 (Ky.2004). In this case, the finding of the Court of Appeals that the family court was acting within its jurisdiction is a question of law. Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004). Accordingly, we review it de novo.

Saeid contends Denise's motion should be construed as a motion to modify custody under Brockman v. Craig, 205 S.W.3d 244 (Ky.App.2006). However, our more recent decision in Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008) is controlling in this case. Brockman is, therefore, overruled to the extent it is inconsistent with Pennington.

In Brockman, the parents were joint custodians and neither was designated as the primary residential parent. The mother was seeking to relocate with the child outside of the jurisdiction. She argued that she was the primary residential parent since she was the main caregiver of the child and, as such, she could relocate despite the father's objections. The Court of Appeals relied on Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) (overruled by Frances v. Frances, 266 S.W.3d 754 (Ky.2008) and Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008)), and found that in order for one parent to be the primary residential parent, he or she “must be designated by the court or by agreement of the parties....” Brockman, 205 S.W.3d at 248. Since no primary residential custodian had been designated in Brockman, the Court of Appeals found that the mother was not the primary residential custodian, regardless of her role as the caregiver.

The Court of Appeals then cited Crossfield v. Crossfield, 155 S.W.3d 743, 746 (Ky.App.2005), holding that a “change in the primary residential custodian amounts to a modification of the joint custody arrangement.” Brockman, 205 S.W.3d at 248. The Court of Appeals found that the mother's seeking to become the primary residential custodian was such a change, and that she had to meet the standard for modification of custody as a result.

Relying on Brockman, Saeid argues that whenever there is a joint custody arrangement that deliberately declines to name either parent as the primary residential custodian, any attempt by...