KARLA SUE CHAFFINS V. MICHAEL JOHN CHAFFINS
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RENDERED:
October 17, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
97-CA-0180-MR
KARLA SUE CHAFFINS
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM MONARCH, JUDGE
ACTION NO. 95-CI-0368
V.
MICHAEL JOHN CHAFFINS
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE:
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ABRAMSON, GARDNER and COMBS, Judges.
COMBS, JUDGE:
Karla Sue Chaffins (Karla) appeals from an order
of Grayson Circuit Court awarding physical custody of her three
minor children to the children’s father, Michael John Chaffins
(Michael).
She alleges two errors: 1) that the trial court
failed to conduct a de novo hearing on the issue of physical
custody and 2) that the trial court improperly considered
affidavits that had not been formally introduced into the record.
Upon reviewing the record and the arguments of the parties, we
reverse and remand.
The parties were married on June 1, 1985.
Three
children were born of the marriage: Brandon, on July 7, 1985;
Aaron, on January 16, 1989; and Amanda, on February 20, 1991.
On
December 14, 1995, Karla filed a Petition for Dissolution of
Marriage in Grayson Circuit Court.
On January 3, 1996, the trial
court entered an agreed order granting Karla and Michael joint
temporary custody of the children with Karla as the primary
custodian.
Following a hearing, the Domestic Relations
Commissioner issued his report of March 22, 1996, recommending
that the parties be granted joint custody, that appellant be
primary custodian, and that the children not be removed from
Kentucky without a re-examination of the primary custody issue.
On June 21, 1996, the trial court issued a Decree of Dissolution,
awarding the parties joint custody and designating Karla as the
primary custodian.
On July 25, 1996, Karla filed a motion to modify
custody to permit her to remove the children from Kentucky in
order to move to Memphis, Tennessee.
In his response, Michael
moved for care, custody, and control of the children.
A hearing
was held on September 24, 1996, and on October 9, 1996, the
Domestic Relations Commissioner issued a report finding that it
was in the best interest of the children to remain in Grayson
County and that, therefore, primary custody should be changed to
Michael.
Karla filed exceptions, but on December 20, 1996, the
trial court issued its order awarding custody of the children to
Michael.
Karla filed a motion to vacate or amend, which the
trial court overruled on January 21, 1997.
This appeal followed.
Appellant first alleges that the trial court erred in
ruling the hearing conducted by the Domestic Relations
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Commissioner Hearing on September 24, 1996, to be a de novo
hearing.
In support of her contention, Karla cites that portion
of the Commissioner’s report which states: “the commissioner
notes for the record that he has fully considered the prior
hearing held in this action concerning custody in arriving at his
decision and recommendation in this case.”
(Emphasis added).
The September 24, 1996, proceeding was a hearing to modify joint
custody.
Karla is correct in arguing that an attempt to modify
joint custody must be examined de novo pursuant to KRS
403.270(1).
(1995).
Newton v. Riley, Ky. App., 899 S.W.2d 509, 510
A modification of a joint custody award should be made
anew as if there had been no prior custody determination.
v. Clements, Ky. App., 780 S.W.2d 635, 638 (1989).
Erdman
“A hearing de
novo means trying the dispute anew as if no decision had been
previously rendered.”
Louisville and Jefferson County Planning
and Zoning Commission v. Grady, Ky., 273 S.W.2d 563, 565 (1954),
overruled on other grounds, American Beauty Homes Corp. v.
Louisville and Jefferson County Planning and Zoning Commission,
Ky., 379 S.W.2d 450 (1964).
We agree with appellant.
The very language of the
Commissioner’s report belies the notion that the hearing was de
novo.
If, as the Commissioner states, he “fully considered the
prior hearing held in this action concerning custody," he failed
to determine custody "anew as if there had been no prior custody
determination.”
Erdman, supra.
The prior hearing should not
have been considered in the modification proceeding.
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Appellant’s second allegation of error is that the
trial court improperly considered affidavits that were filed in
the record but not introduced into evidence.
In support of her
position, appellant argues that the affidavits constituted
inadmissible hearsay.
KRE 801-803.
Again, we agree.
The
hearsay rule forbids the use of an out-of-court assertion as
evidence of the truth of the fact asserted.
Davis v. Bennett's
Adm'r, Ky., 132 S.W.2d 334, 338 (1939).
[I]t is of little significance that the hearsay
evidence was in the form of an affidavit. We are
unaware of any rule of law whereby inadmissible hearsay
is rendered admissible by virtue of the fact that it is
sworn. At most a statement made under oath might be
regarded as possessing a greater degree of
trustworthiness, but such is not sufficient to overcome
the general rule[.]” Barnes v. Commonwealth, Ky., 794
S.W.2d 165, 167 (1990).
We agree that admission of these affidavits constituted error
under the hearsay rule where the affiants were available to
testify and to undergo cross-examination in open court.
Although it is apparent from the record that both the
DRC and the trial judge had sincere concern and some reservations
about relocating the children outside of Leitchfield, the glaring
irregularities correctly cited by the appellant as error require
us to reverse the findings of the trial court and to remand this
case for a de novo hearing.
The statutory mandate is clear and
unambiguous in requiring a hearing anew, without any taint,
influence, or association of previous hearings.
These children
deserve no less than a full and fair consideration of their best
interest that complies fully with the dictates of due process.
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We therefore reverse and remand for findings and a
determination consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert M. O'Reilly
Hardinsburg, Kentucky
Donald W. Cottrell
Leitchfield, Kentucky
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