Wood v. Woeste
| Decision Date | 01 May 2015 |
| Docket Number | NO. 2015–CA–000011–OA,2015–CA–000011–OA |
| Citation | 461 S.W.3d 778 |
| Parties | Jesse A. Wood, IV and L.A.W., a Minor Child, Petitioners v. Honorable Richard A. Woeste, Judge, Campbell Family Court, Respondent and Aliza Hunter, Real Party in Interest |
| Court | Kentucky Court of Appeals |
PETITION BY PETITIONERS: Tasha Scott Schaffner, Florence, Kentucky, Theresa M. Mohan, Fort Mitchell, Kentucky
RESPONSE BY REAL PARTY IN INTEREST: J. David Bender, Fort Thomas, Kentucky
BEFORE: JONES, MAZE AND THOMPSON, JUDGES.
Petitioner, Jesse A. Wood, IV (father), and L.A.W. (son), through son's guardian ad litem (GAL), filed a petition for a writ to prohibit the family court from conducting a hearing on a motion to temporarily modify primary residential custodian of son to Aliza Hunter (mother), while father was deployed with the Air Force National Guard. Father and son also filed two emergency motions to stay the family court from proceeding with a decision. We grant the writ of prohibition because the family court acted erroneously, there is no adequate remedy by appeal, and great injustice and irreparable injury have resulted. We deny the emergency motions as moot.
When father and mother divorced in 2005, they were living in Cincinnati, Ohio. Pursuant to an agreed parenting plan, the parties shared joint custody with an alternating schedule. In 2009, after mother moved to Montana, the parties agreed to a modified order making father the primary residential custodian of son for school purposes, with mother exercising timesharing during son's summer vacation and other school breaks.
In 2012, father and son moved to Kentucky and began residing with father's paramour, Jill Markum, and Ms. Markum's children. In 2013, mother violated the parameters of her timesharing by failing to return son at the conclusion of her summer visitation period. Father filed a motion requesting the Campbell Family Court to enforce the Ohio custody orders. Father was granted an ex parte court order to secure son's return.
After son returned, father and mother moved the court to alter their custody and timesharing arrangements arguing the current arrangement was not in son's best interest. Father requested sole decision-making power and mother requested she be made the primary residential parent for school purposes. In an April 28, 2014 order, the family court upheld the existing timesharing arrangement as being in son's best interest.
Father is a reserve member of the Air Force National Guard. In September 2014, father was given notice that he was being returned to active service in October and informed mother of his impending deployment. On October 6, 2014, father was deployed to Afghanistan for 180 days. Son, who was ten-years old at this time, remained in Kentucky in the care of Ms. Markum and his paternal grandparents.
On December 1, 2014, mother filed a motion for temporary primary residential custody in the Campbell Family Court arguing that father's deployment constituted a substantial change in circumstances and the care arrangement made for son in father's absence seriously endangered son's physical, mental, moral or emotional health. Mother requested she be given immediate primary residential custody for the remainder of the school year.
On December 9, 2014, father filed a motion to stay the proceedings for ninety days pursuant to the federal Servicemembers Civil Relief Act (SCRA), and indicated he anticipated being available for court proceedings in mid-April 2015. Father's attached exhibits included: (1) proof that he was serving in active duty as of December 4, 2014; and (2) a letter from his commanding officer that he was involuntarily mobilized on October 6, 2014, and would be unavailable for any court proceedings for a period of 180 days not to include travel or reconstitution.
The GAL filed a memorandum of law pointing out that KRS 403.320(4)(a) mandates that any court-ordered modification of timesharing due in part or in whole to a parent's deployment outside the United States shall be temporary and shall revert back to the previous schedule at the end of deployment. The GAL urged the family court to consider whether it would be in the best interest of son to disrupt his current schedule and require him to adjust to a new school mid-year in another state, when at the conclusion of father's deployment he would be returned to father's residential custody and then need to leave his Montana school to resume the school year at his current school in Kentucky.
After a hearing on this motion on December 19, 2014, the family court denied the motion. It determined father would not be prejudiced by proceeding and indicated that modification should be granted unless it was proven that granting mother temporary residential custody would seriously endanger son.
On January 5, 2015, the family court heard mother's motion. That same day, father and son filed a joint petition for writ of prohibition and/or mandamus with this Court, along with an emergency motion to stay the family court from proceeding. Father argued he and son would be irreparably harmed through failure to grant the stay because he could not effectively assist his counsel in defending against mother's motion or provide relevant information to help the GAL represent son's interest without having the opportunity to provide detailed information about son's prior maladjustment upon traveling to Montana for visitation, high anxiety level, prior poor adjustment to changing schools, educational accommodations, adjustment to his current home, father's own wishes, mother's involvement in son's life, and the arrangements that had been made for son's care while deployed, as well as other relevant matters.
While the family court acknowledged receipt of the petition for writ, it stated in the absence of an order from this Court, it was obligated to continue with the scheduled hearing on mother's motion. The family court proceeded to hear testimony on January 6, 2015, and announced it would likely have a decision before the end of the day. Therefore, also on January 6, 2015, father and son filed a renewed emergency motion to stay the family court from proceeding arguing that father and son would suffer irreparable harm and grave injustice if the stay was not granted.
On January 6, 2015, the family court ordered that son reside with mother in Montana and designated her as temporary residential custodian until father's return from deployment. The family court reasoned mother's custodial rights needed to be enforced in father's absence unless son would be harmed by living with mother in Montana.1 In making this decision, the family court determined father could not be the physical custodian of son while deployed, father could not unilaterally designate the paternal grandfather as custodian of the child knowing mother had joint custody rights, father's substantive rights would not be altered from a temporary order, father's attorney adequately represented father's interests, the SCRA could not be applied to deny mother's custodial rights and the SCRA did not apply where father had appeared through counsel. Father filed an appeal.2
An extraordinary writ may be granted upon a showing 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.” Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). Father has made such a showing to merit granting the petition for a writ of prohibition.
The SCRA, which also applies to Kentucky National Guard members through KRS 38.510, has the following purposes:
The SCRA directly applies to child custody proceedings to stay an action for a period of not less than ninety days if the service member properly provides a letter explaining why service requirements prevent the service member from appearing and when he will be able to appear, and a letter from his commanding officer stating that his military duty prevents his appearance and that leave is not authorized. 50 App. U.S.C. § 522(a), (b). The SCRA uses mandatory language to require a stay under such circumstances: “the court ... shall, upon application by the service member, stay the action[.]” 50 App. U.S.C. § 522(b)(1).
In interpreting Section 522, our sister courts have held the SCRA “leaves no room for judicial discretion.” Hernandez v. Hernandez, 169 Md.App. 679, 690, 906 A.2d 429, 435 (2006) (footnote omitted). If a service member complies with the requirements for a stay, it is mandatory that the trial court grant a stay. In re Amber M., 184 Cal.App.4th 1223, 1230, 110 Cal.Rptr.3d 25, 30 (2010) ; In re A.R., 170 Cal.App.4th 733, 743, 88 Cal.Rptr.3d 448, 456 (2009) ; Hernandez, 169 Md.App. at 690, 906 A.2d at 435–36.
The Soldiers' and Sailors' Civil Relief Act, the SCRA's predecessor act, similarly contained mandatory language requiring an action “shall ... be stayed” if properly applied for by a person in military service, but added additional discretionary language: “unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” 50 App. U.S.C. § 521 (1990). However, even with this discretion, the Supreme Court opined that the Act was “to be liberally construed to protect those who have been obligated to drop their own affairs to take up the burdens of the...
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Stringer v. Stringer
... ... App. 2006). A family court considers the best interests of the child in motions to modify timesharing by joint custodians. Wood v. Woeste, 461 S.W.3d 778, 781 n.1 (Ky. App. 2015)."[M]otions to modify visitation/timesharing are brought under KRS 403.320(3),9 which permits ... ...