MARY CONLEY v. JIMMY CONLEY
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RENDERED: April 14, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002833-MR
MARY CONLEY
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE KELLEY ASBURY, JUDGE
ACTION NO. 98-CI-00094
v.
JIMMY CONLEY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a decree of dissolution
which awarded the parties joint custody of their minor daughter,
despite the fact that appellant had a domestic violence order
against appellee and appellee had committed acts of domestic
violence against appellant in the past.
We agree that the trial
court improperly failed to set out findings of fact to support
its award of custody as required by CR 52.01.
Thus, we vacate
the order and remand for the court to make adequate findings such
that the basis of his award of custody can be determined by a
reviewing court.
Appellant, Mary Conley, and appellee, Jimmy Conley, were
married in 1989.
One child was born of the marriage, Paige
Conley, born March 27, 1990.
On January 29, 1998, Mary filed a
petition for dissolution of marriage.
sought sole custody of Paige.
pursuant to KRS 403.150:
In said petition, she
She also certified in the petition,
that in 1997, she obtained a temporary
restraining order against Jimmy in West Virginia, which was later
dismissed because Jimmy could not be served; that in 1997, she
obtained an Emergency Protective Order against Jimmy in the Boyd
District Court, which was later withdrawn by her; and that she had
recently obtained another Emergency Protective Order against Jimmy
in the Boyd District Court, which was dismissed because he could
not be served.
In his response to the petition, Jimmy did not
seek custody of Paige and thereafter did not contest Mary being
awarded temporary custody of Paige.
The court did set out a
temporary visitation schedule for Jimmy.
On April 16, 1998, Mary filed a Domestic Violence
Petition alleging that Jimmy had been constantly making abusive
and threatening phone calls to her and her neighbors for a month
and that, as a result, Paige was unable to sleep or concentrate on
her homework.1
On that date, the court (the same judge as in the
dissolution matter) entered an Emergency Protective Order
forbidding Jimmy from calling Mary.
1
After a full hearing on the
The record of this domestic violence matter was not
included in the record before us, even though Mary included it in
her Designation of the Record. However, we were able to view the
petition and the subsequent Emergency Protective Order and
Domestic Violence Order because it was attached in the appendix
to Mary’s appellate brief.
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matter, the court entered a Domestic Violence Order on May 8, 1998
requiring that Jimmy stay at least 1,000 feet away from Mary and
Mary’s family members, except as may be ordered in the future in
the divorce case.
The court also ordered Jimmy to attend
counseling.
On April 29, 1998, Jimmy filed a show cause motion and
an affidavit asserting that Mary was not complying with the
visitation schedule.
Thereafter, the parties began filing various
motions regarding visitation and how visitation would be
effectuated.
On May 15, 1998, Jimmy filed an amended response to
the petition for dissolution, seeking custody of Paige.
After a hearing on the divorce action, the Domestic
Relations Commissioner entered his findings of fact in which he
recommended that a custody evaluation be conducted by the Cabinet
for Families and Children.
Mary thereafter filed exceptions to
the report, arguing that a custody evaluation would be an unjust
burden on her since she had recently moved out of state and
because of the evidence regarding the incidences of domestic
violence committed by Jimmy and the fact that she had always been
Paige’s primary caretaker.
The court sustained Mary’s objections
with regard to the custody evaluation and referred the matter back
to the Commissioner to hear testimony from the minor child.2
On
October 22, 1998, the court entered its findings of fact,
conclusions of law, and decree of dissolution in which it ordered
that the parties share joint custody of Paige, with Mary having
2
Neither the transcript or tape of that interview nor the
transcript or tape of the original hearing before the
Commissioner is in the record before us.
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primary physical possession of the child.
However, the court
failed to make any findings as to the basis of the award of joint
custody.
This appeal by Mary followed.
We first note that Jimmy did not file an appellee’s
brief in this case.
as correct.
(1986).
Thus, we can accept Mary’s statement of facts
See Whicker v. Whicker, Ky. App., 711 S.W.2d 857
Also, an amicus curiae brief was filed in support of Mary
on behalf of the Kentucky Youth Advocates and the Kentucky
Domestic Violence Association.
Mary argues that the trial court committed reversible
error when it failed to make findings of fact to explain its
decision to award joint custody.
CR 52.01 provides, “In all
actions tried upon the facts without a jury or with an advisory
jury, the court shall find the facts specifically and state
separately its conclusions of law thereon and render an
appropriate judgment. . .”
It has been specifically held that
this rule applies to child custody cases.
Ky., 719 S.W.2d 442 (1986).
Reichle v. Reichle,
As the trial court’s judgment stands
now, we have no way of reviewing Mary’s other arguments contesting
the joint custody award because we have no way of knowing why the
court granted joint custody.
Thus, we vacate the judgment and
remand the matter for the court to make specific findings of fact
as to its decision on custody.
In so doing, we remind the court
of the factors it must consider in KRS 403.270 in determining the
best interests of the child, including section (2)(f),
“Information, records, and evidence of domestic violence as
defined in KRS 403.270.”
See Stafford v. Stafford, Ky. App., 618
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S.W.2d 578 (1981).
In addition, KRS 403.270(3) provides that
“[i]f domestic violence and abuse is alleged, the court shall
determine the extent to which the domestic violence and abuse has
affected the child and the child’s relationship to both parents.”
We also would remind the court that implicit in an award of joint
custody is the fact that the parties will be able to cooperate in
the future to effectuate joint custody.
Mennemeyer v. Mennemeyer,
Ky. App., 887 S.W.2d 555 (1994); Squires v. Squires, Ky., 854
S.W.2d 765 (1993).
For the reasons stated above, the judgment of the Boyd
Circuit Court is vacated and remanded for specific findings of
fact as to custody consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Elizabeth G. Opell
Ashland, Kentucky
ATTORNEYS FOR AMICI CURIAE,
KENTUCKY YOUTH ADVOCATES:
Valerie J. Salley
Louisville, Kentucky
ATTORNEY FOR AMICI CURIAE,
KENTUCKY DOMESTIC VIOLENCE
ASSOCIATION:
Lisa A. Beran
Frankfort, Kentucky
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