KEIFER (JAYLYNNE) VS. KEIFER (CORY)
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RENDERED: AUGUST 6, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002205-ME
JAYLYNNE KEIFER
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 08-CI-00272
CORY KEIFER
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: TAYLOR, CHIEF JUDGE; COMBS AND NICKELL, JUDGES.
COMBS, JUDGE: This is an expedited case involving a visitation order of the
Hardin Circuit Court concerning the issue of Jaylynne Keifer’s visitation with her
children. After our review, we reverse and remand.
Cory and Jaylynne Keifer were married in 2002. They have two
minor children. Cory filed a petition for divorce in 2008. After a final hearing in
October 2008, the court entered its findings on February 17, 2009. At that time, it
awarded joint custody to both Cory and Jaylynne without designating either one as
the primary residential parent. However, the order provided that Cory would have
visitation consistent with Hardin Family Court Rule (HFCR) 702. It also provided
that if either parent relocated, he or she should either tender an agreed order or file
a motion for mediation or a hearing to modify parenting times.
In July 2009, Jaylynne received orders from the U.S. Army relocating
her to Fort Hood, Texas. That same month, she filed a motion with the court to
modify Cory’s parenting times. As a result, the family court entered an order that
provided as follows:
[T]he parties shall continue to have joint custody of their
two minor children, with neither party being designated
as the primary residential parent. Given [Jaylynne’s]
relocation to Ft. Hood, Texas, absent an agreement
between the parties, she shall be entitled to parenting
times which are consistent with the visitation schedule
under HFCR 702.
It is from this order that Jaylynne appeals.
Preliminarily, we first address Cory’s contention that Jaylynne’s
appeal should be dismissed because he was not served with the notice of appeal.
Kentucky Rule[s] of Civil Procedure (CR) 73.03(1) requires a notice of appeal to
be “served upon all opposing counsel, or parties, if unrepresented, at their last
known address.” In this case, the text of the notice of appeal recites the name and
address of Cory’s counsel. However, the certificate of service shows that it was
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sent instead to Jaylynne’s former counsel. Cory argues that because his counsel
was not served, this appeal should be dismissed.
Cory is correct that CR 73.02(2) mandates that failure to file a notice
of appeal in timely fashion requires dismissal of the appeal. In this case, the notice
was timely filed; however, the service was defective. CR 73.02(2) also provides
that “[f]ailure to comply with other rules relating to appeals . . . does not affect the
validity of the appeal[.]” Our Supreme Court has clarified the rule as it pertains to
notices of appeal, “[e]xcepting for tardy appeals and the naming of indispensable
parties, we follow a rule of substantial compliance.” Johnson v. Smith, 885 S.W.2d
944, 950 (Ky. 1994).
The purpose of pleadings is to provide fair notice to the opposite
party. Blackburn v. Blackburn, 810 S.W.2d 55, 56 (Ky. 1991). When the conduct
of the parties demonstrates that actual notice has been received, the objective has
been met so as to amount to substantial compliance. Id. Although Cory’s counsel
was not immediately served with the notice of appeal, the record shows that his
counsel was nonetheless aware of the appeal. His counsel had communicated with
Jaylynne’s counsel concerning the appeal. Both the certifications of the record and
the order expediting the appeal were received by Cory’s counsel. Cory and
Jaylynne themselves talked about the appeal. There is no doubt that Cory and his
counsel were aware of the appeal. This court properly denied Cory’s motion to
dismiss during the pendency of this appeal, and we will not revisit this issue.
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Jaylynne’s substantive argument is that the trial court erred when it
did not allow her to relocate to Texas with the children. The court has broad
discretion in custody cases, and we may only reverse if its decisions are clearly
erroneous or constitute an abuse of discretion. Drury v. Drury, 32 S.W.3d 521,
525 (Ky. App. 2000).
The original divorce decree entered in February 2009 anticipated that
Jaylynne would be relocated by the Army. When Jaylynne received her relocation
orders from the Army, she acted pursuant to the order and filed a motion with the
trial court requesting a hearing to modify Cory’s parenting time. Cory did not file
any motions. After the hearing, the court entered an order that effectively shifted
the children’s residence to Cory and provided Jaylynne with visitation according to
a standardized schedule. It did not amend its original finding that the parties have
joint custody with neither one designated as the primary residential parent.
In cases involving joint custody where one parent desires to relocate
without changing the custody status, our Supreme Court has held that the trial
court should apply Kentucky Revised Statute(s) (KRS) 403.320 to determine
whether the relocation is appropriate. Pennington v. Marcum, 266 S.W.3d 759,
770 (Ky. 2008). KRS 403.320(3) provides that “[t]he court may modify an order
granting or denying visitation rights whenever modification would serve the best
interests of the child[.]” KRS 403.270(2) sets forth a list of factors for the court to
use in determining the best interests of the child for custody purposes. They
include:
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the wishes of the parents;
the wishes of the child;
the interaction and interrelationship of the child with his
parents, siblings, and any other person who may
significantly affect his best interests;
the child’s adjustment to his home, school, and
community;
the mental and physical health of all individuals
involved; and
information, records, and evidence of domestic violence.
In the case before us, the court merely issued the order and referred to
the findings of its original decree. It did not apply any of the factors set forth in
KRS 403.270(2). In its original decree incorporated by reference in the order now
on appeal, the court had made findings as to the best interests of the children and
reached the opposite result; i.e., that the children were to reside primarily with
Jaylynne while Cory had visitation under the standardized schedule. In the order
now before us, the court did not provide any findings to support the opposite result.
Nor did it indicate what circumstances – if any – had changed other than
Jaylynne’s relocation, which was a contingency that the original order had
specifically contemplated and addressed.
Under the circumstances of this case, we are persuaded that the failure
to apply the statutory factors to determine the best interests of the children
constituted an abuse of discretion. Accordingly, we remand this matter for further
proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dawn Lonneman Blair
Phyllis K. Lonneman
Elizabethtown, Kentucky
Douglas E. Miller
Radcliff, Kentucky
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