JENNIFER L. HUCK v. DENNIS A. FRITZ, JUDGE, OLDHAM CIRCUIT COURT AND BENJAMIN F. HUCK, JR.
Annotate this Case
Download PDF
RENDERED:
October 30, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002365-OA
JENNIFER L. HUCK
v.
PETITIONER
ORIGINAL ACTION
REGARDING OLDHAM CIRCUIT COURT
ACTION NO. 95-CI-00203
DENNIS A. FRITZ, JUDGE,
OLDHAM CIRCUIT COURT
RESPONDENT
AND
BENJAMIN F. HUCK, JR.
REAL PARTY IN INTEREST
OPINION AND ORDER
* * * * * * * * * *
BEFORE:
HUDDLESTON, KNOPF AND MILLER, JUDGES.
PER CURIAM:
This Court has considered the motion for intermediate
relief and/or petition for writ of prohibition filed by Jennifer L.
Huck and the response thereto filed by the real party in interest,
Benjamin F. Huck, Jr.
On December 18, 1997, the Oldham Circuit Court entered an
interim
order
in
a
divorce
proceeding
awarding
Jennifer
and
Benjamin joint custody of their children. The order named Jennifer
as the primary custodian and granted her the right to determine the
residency and educational needs of the children.
However, the
order directed that neither parent was to remove the children from
Kentucky “with the intent to establish a separate residence” in
absence of an agreement between the parties or as ordered by the
Court.
This order was made final and appealable by an order
entered September 18, 1998.
On May 29, 1998, Jennifer filed a motion requesting,
among other things, that she be granted leave to take the children
with her to her new residence in Collegedale, Tennessee.
residence will be near members of her family.
This
This motion did not
come on for hearing before the respondent Judge Fritz until August
28,
1998,
and
September
2,
1998,
because
the
respondent
had
suffered a heart attack.
On July 14, 1998, Jennifer gave notice that she had
tendered a proposed visitation schedule on Benjamin and that school
was scheduled to begin in Collegedale on August 11, 1998.
On
August 11, 1998, Benjamin served Jennifer a motion to hold Jennifer
in contempt of court for moving to Tennessee in violation of the
court directive.
In an order dated September 15, 1998, the respondent
found that the reasons advanced by Jennifer for relocating in
Tennessee were solely related to her desire and not the result of
anything beyond her control, that the children could receive a
similar education in Kentucky, and that such a relocation would
disrupt the “previously established joint custody and frequency of
-2-
contact with the parents.”
The respondent accordingly denied
Jennifer’s motion to relocate and found Jennifer in contempt of
court.
The respondent directed that Jennifer be given until
September 28, 1998, to purge herself of contempt by returning the
children to Oldham County, Kentucky and enrolling them in their
previous schools.
The order directing Jennifer purge herself of contempt by
September 28, 1998, was stayed by an emergency order signed by
Court of Appeals Judge Daniel T. Guidugli.
On September 18, the respondent entered a final order.
Jennifer Huck has appealed both from the September 15 and September
18 orders.
In Mennemeyer v. Mennemeyer, Ky. App., 887 S.W.2d 555
(1994), this Court held that relocation from Kentucky to Florida
was not a sufficient reason to modify joint custody.
Thus,
relocation by the primary custodial parent standing alone is not
enough to trigger reexamining joint custody.
In Brumleve v. Brumleve, Ky., 416 S.W.2d 345, 346 (1967)
the Court said:
Mothers should be given considerable latitude in choosing
where they will live.
But when this right is challenged
by the former husband and father of the children, she
should offer some plausible reason for taking minor
children out of the jurisdiction of the court to the
prejudice of the visitation rights of the father.
-3-
Mere
whim is not enough. For a summary of authority see:
154
A.L.R. 552.
In the instant case, Jennifer indicated she was moving to be near
relatives.
Section 24 of the Kentucky Constitution states that
“[e]migration from the State shall not be prohibited.”
It is true
that before Jennifer permanently relocates in Tennessee, it is
necessary to obtain court approval.
She sought that approval.
It
is our opinion that the reasons for the move to Tennessee are not
so lacking in merit as to be characterized as whimsical.
The
hearing required before relocating her residence is not so much
intended to determine the basis for the move but to set up a new
visitation schedule to suit the change in residence. Under Section
24 of the Kentucky Constitution, Jennifer is entitled to relocate.
Further, since relocation alone is not sufficient to meet the
threshold
test
to
reconsider
joint
custody
under
Mennemeyer,
Jennifer is entitled to take the children with her.
Since there is a substantial likelihood that Jennifer
Huck will prevail on the appeal, it is appropriate to grant her
request so as to prevent irreparable injury during the pendency of
the appeal.
This Court ORDERS that petitioner’s motion for leave to
correct the original petition is GRANTED.
This Court DENIES the petition for writ of prohibition
since there is an adequate remedy at law.
This Court DIRECTS the
Clerk of the Court of Appeals to REFILE the petition as a motion
-4-
for intermediate relief on appeal and further DIRECTS the clerk to
REFILE the response in that appeal.
It
is
hereby
ORDERED
that
Jennifer’s
motion
for
intermediate relief is GRANTED and the order directing Jennifer to
purge herself of contempt be stayed pending the appeal.
ALL CONCUR.
ENTERED: October 30, 1998
Joseph R. Huddleston
JUDGE, COURT OF APPEALS
COUNSEL FOR PETITIONER:
COUNSEL FOR REAL PARTY IN
INTEREST:
Robert S. Silverthorn, Jr.
Louisville, Kentucky
James L. Theiss
LaGrange, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
