GINA MARIE LEE v. BENSON LOCKHART LEE
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RENDERED: MARCH 9, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-000768-MR
GINA MARIE LEE
v.
APPELLANT
APPEAL FROM FRANKLIN FAMILY COURT
HONORABLE O. REED RHORER, JUDGE
ACTION NO. 92-CI-00705
BENSON LOCKHART LEE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ABRAMSON, JUDGE; KNOPF AND ROSENBLUM, SENIOR JUDGES.1
ABRAMSON, JUDGE: Gina Marie Lee appeals from an order of the Franklin Family
Court granting Benson Lockhart Lee's motion to modify his child support obligation and
further designating Benson as the primary custodian for the parties' two children born
during their marriage. Gina argues that the trial court did not have jurisdiction because
Benson did not support his motion with an affidavit as required by Kentucky Revised
1
Senior Judges William L. Knopf and Paul W. Rosenblum sitting as Special Judges by
assignment of the Chief Justice pursuant to Section 110(5) of the Kentucky Constitution and
KRS 21.580.
Statute (KRS) 403.340 and KRS 403.350. Because we find that Benson was not required
to file an affidavit, we affirm.
On October 14, 2004, Gina filed a Motion to Show Cause seeking to have
Benson held in contempt for failure to make required child support payments. Shortly
thereafter, she also filed a motion for the purpose of establishing Benson's paternity of a
son born approximately three and one-half years following the couple's 1994 divorce.2
Gina also sought custody of the child. On November 4, 2004, Benson responded to
Gina's show cause motion and further asserted his own motion for a modification of his
child support obligation. In his child support modification motion, Benson argued that he
was the de facto custodian of the parties' two older children, but he did not ask for a
modification of the parties' custody arrangements.
On November 23, 2004, the trial court entered an order establishing Benson
as the father of the child born after the parties' divorce. All other issues were held in
abeyance pending a hearing to be held on a later date. Prior to the hearing, Gina objected
to the issue of custody being addressed by the court because of Benson's failure to file an
affidavit pursuant to KRS 403.340 and KRS 403.350. Nonetheless, a hearing was held
on February 8, 2005, and, on March 10, 2005, the trial entered an order designating
Benson as the primary residential custodian of the parties' children born during the
marriage and Gina as the primary custodian of the child born subsequent to their divorce.
The court also granted Benson's child support modification motion. Approximately one
The parties have two other children who were born during their marriage. Those children are
the subjects of the custody dispute at issue in this appeal. As a part of their divorce, the court
granted residential custody of those two children to Gina.
2
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week later, on March 16, 2005, the court entered a second order suspending contempt
sanctions against Benson imposed for his prior failure to pay child support and again
noting that his motion for modification of his child support obligation was granted. Gina
appealed.3
Gina relies on KRS 403.340 and KRS 403.350 in support of her argument
that a party seeking a modification of custody must accompany his or her motion with an
affidavit. In fact, KRS 403.350 does require a party seeking modification of a custody
order to support the request with an affidavit. In pertinent part, this statute states:
A party seeking a temporary custody order or modification of
a custody decree shall submit together with his moving papers
an affidavit setting forth facts supporting the requested order
or modification and shall give notice, together with a copy of
his affidavit, to other parties to the proceeding, who may file
opposing affidavits. . . . The court shall deny the motion
unless it finds that adequate cause for hearing the motion is
established by the affidavits, in which case it shall set a date
for hearing on an order to show cause why the requested
order or modification should not be granted.
In this matter, Gina argues that Benson's failure to file the required affidavit deprives the
court of jurisdiction over the question of custody modification. See, e.g., Petrey v. Cain,
987 S.W.2d 786 (Ky. 1999); Robbins v. King, 519 S.W.2d 839 (Ky. 1975); Crossfield v.
Crossfield, 155 S.W.3d 743 (Ky. App. 2005).
In her Notice of Appeal, Gina challenges the trial court's decision to modify custody of their
two older children. However, she designated only the March 16, 2005 order which did not
address custody, and not the March 10, 2005 order that did. However, our Supreme Court held
in Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986), that an appeal may be maintained despite the
appellant's failure to properly specify the judgment appealed from when it can be ascertained
within a reasonable certainty from a review of the record and no substantial prejudice has
resulted to the appellee.
3
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We agree with Gina that a family court generally has no authority to
consider a party's motion seeking a change in custody that is not supported by affidavit.
However, the family court's attention to the custody issue in this matter was not initiated
by a party seeking to modify custody arrangements. Rather, it was Gina's efforts to hold
Benson in contempt for failure to pay child support that brought the issue before the
family court. Though Benson did seek to modify his child support obligation, he never
requested an alteration of the parties' custody arrangements. Rather, the question of
custody was addressed by the family court on its own initiative after reviewing all of the
evidence offered in connection with Benson's motion to modify child support. Thus,
because Benson did not move to modify custody and, therefore, was not “[a] party
seeking a . . . modification of a custody decree,” KRS 403.350 has no application herein.
Additionally, the family court indicated in its March 10, 2005 order, that
both Gina and Benson, as well as their two older children, testified during the hearing on
February 8, 2005. Because of this, even though no affidavits were presented in support
of any proposed alteration to the parties' custody arrangements, the family court was
certainly presented with sufficient sworn testimony to support its decision to modify
custody. Moreover, we cannot find in the record any objection by Gina that the ultimate
decision of the family court was somehow unfair or not otherwise proper with respect to
the evidence. This is not surprising given that the record demonstrates that since 2002,
the two older children have resided with Benson with Gina's permission. The trial court's
decision, therefore, merely represented a judicial recognition of the parties' own
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agreed-upon arrangements.4 We, therefore, affirm the March 10, 2005 judgment of the
Franklin Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Willie E. Peale, Jr.
Frankfort, Kentucky
Kevin P. Fox
Logan & Gaines, PLLC
Frankfort, Kentucky
4
Further support for the trial court's decision is also found in the fact that Gina's boyfriend at
the time of the hearing had previously been charged with a number of offenses including child
abuse, fourth degree assault of a minor, custodial interference, harassment and menacing. Gina
testified that she was not aware of his criminal record prior to learning of it at the hearing.
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