VIRGINIA EVA CROUCH v. CHARLES JACKSON CROUCH, II
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002004-ME
VIRGINIA EVA CROUCH
v.
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 96-CI-00728
CHARLES JACKSON CROUCH, II
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND McANULTY, JUDGES.
McANULTY, JUDGE:
Virginia Eva Crouch (hereinafter appellant)
appeals the judgment of the Boyd Circuit Court modifying its
child custody order, pursuant to KRS 403.270(2), and granting
her former husband, Charles Jackson Crouch (hereinafter
appellee), physical custody of the parties’ daughter.
In a
settlement agreement incorporated with the dissolution decree
entered December 17, 1996, the trial court awarded the parties
joint custody, care and control of the child, with appellant to
have actual physical custody of the child and appellee given
liberal visitation.
That arrangement continued until 2003 when
appellant was called to active duty as a member of the state
National Guard unit.
On February 10, 2003, the parties entered
into an agreed order as a result of her being called to active
military duty.
They agreed they would continue to have joint
custody of their daughter, but that the child should “be allowed
to reside with the Petitioner [appellee] until further Orders of
the Court.”
Appellee’s child support obligation was suspended
by the same agreed order.
Appellant was not, as had been anticipated and feared,
required to serve overseas in Iraq, but remained in Kentucky,
albeit on active duty.
Upon her completion of active duty in
January 2004, appellant and appellee agreed between them that
appellant would take the opportunity to attend a four-month
officers’ training camp while the child was staying with
appellee and still in school.
According to appellant,
attendance at the officers’ training camp was mandatory at some
point in her career, but not necessarily at that time.
Appellant completed this assignment in July of 2004.
In their conversations, appellee did not broach with
appellant his desire to keep the child following appellant’s
completion of active duty and officers’ training.
On July 20,
2004, when appellant asserted a right to return of the child,
appellee informed her that he intended to keep their daughter
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with him and would require an order from the court for her
return to her mother.
Appellant filed a motion on July 27, 2004, for an
order directing the return of physical custody of the child
pursuant to the agreed order and the decree of dissolution.
Appellee’s response stated that physical custody was transferred
to him until further orders of the court, that appellant was
scheduled to be called to active duty again, and that the child
did not want to return to live with her mother in Lawrenceburg,
but wanted to continue to live with her father and go to school
in Raceland.
The court held a hearing on appellant’s motion.
The court also held an in camera interview with the child, then
age nine; however, there is no record of the child’s
conversation with the court as required by KRS 403.290(1) in the
record on appeal.
On August 30, 2004, the trial court entered an order
finding that it was in the best interests of the child to stay
with appellee.
The court first found that when the agreed order
was executed it was the intent of both parties that the child
would be returned to appellant’s physical custody after her
military activation.
The court considered the agreed order to
be an agreement to modify the terms of the original arrangement
contained in the settlement agreement, and decided that it was
for the court to consider the criteria of KRS 403.270(2) to
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determine whether the arrangement should return to the original
terms of the settlement agreement.
The court found that the
child’s expressed preference for staying with her father due to
her adjustment to a new school system, and her integration into
a new school and community weighed favorably for her best
interests to be with her father.
The court emphasized that the
daughter’s preference had nothing to do with any negative
attitude about living with her mother, and commented favorably
on the mother’s parenting skills and the job she performed
raising the daughter.
The court, therefore, ordered the child
to continue to reside with appellee.
Appellant filed a motion to alter, amend, or set aside
the court’s order as being against the weight of the evidence
and as condoning the breach of an agreement by a party to it.
The trial court denied the motion to alter the court’s order.
Appellant appeals the order giving physical custody of the child
to appellee and the denial of the motion to alter, amend or set
aside the court’s order.
Appellant’s primary argument is that the intent of the
parties was for the child to return to her under the agreed
order, and appellee never moved the court for a change of
custody.
Although she acknowledges that the agreed order
contemplated further orders of the court, she asserts that since
the parties had a settlement agreement affording her physical
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custody and the parties had an understanding that she would
resume physical custody, appellee was required to move for
modification if he wanted a change.
We agree.
KRS 403.340 sets forth the procedure for modification
of a permanent custody order.
658, 661 (Ky.App. 1987).
Gladish v. Gladish, 741 S.W.2d
The statutory scheme requires that a
party file a motion for modification which is submitted with
supporting affidavits pursuant to KRS 403.350.
Appellee made no
motion for modification of custody nor, needless to say, did he
file any affidavit.
Appellant objected in arguments before the
court, and asserted that she expected to have the child returned
to her under the original settlement decree, which was the
understanding behind the agreed order.
We conclude that the court proceeded incorrectly in
this case in deciding the issue as it did not have jurisdiction
to proceed as it did.
Without a motion to modify before it, the
court effectively modified the custodial arrangement on its own
motion.
A trial court is prohibited from so proceeding on its
own motion.
Gladish, 741 S.W.2d at 661; Chandler v. Chandler,
535 S.W.2d 71 (Ky. 1975).
The statutory requirements are a
matter of subject matter jurisdiction, and if they are not met
the circuit court is without authority to modify.
Cain, 987 S.W.2d 786, 788 (Ky. 1999).
Petrey v.
Furthermore, the court
did not employ the correct standard in its ruling, as it did not
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consult KRS 403.340.
The court proceeded to decide the custody
determination anew under KRS 403.270 as if there had been no
permanent custody order in place.
Because there was a final custody order in place,
appellant should have been returned custody of the child.
We
find this necessary despite the fact that the parties’ agreed
order contemplated further orders of the court.
As a result, we
find it necessary to reverse the order of the Boyd Circuit Court
and remand this case for an order restoring custody to Appellant
under the original decree.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard A. Hughes
Ashland, Kentucky
Jeffrey L. Preston
Catlettsburg, Kentucky
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