KEVIN DRURY v. KIMBERLY DRURY
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RENDERED: October 27, 2000; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001638-MR
KEVIN DRURY
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 96-CI-00337
v.
KIMBERLY DRURY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
This is an appeal from a custody and visitation
determination by the Taylor Circuit Court in a dissolution
action.
The appellant contends that the trial court’s use of the
standard visitation schedule did not comply with the requirements
of KRS 403.320.
Finding that the trial court did not abuse its
discretion in applying the visitation schedule, we affirm.
The appellant, Kevin Drury, and the appellee, Kimberly
Drury, were married on February 1, 1986.
Two children were born
of the marriage: Cody, born January 23, 1990; and Tyler, born
June 12, 1994.
The parties separated in October 1996, and
Kimberly filed a petition for dissolution of marriage shortly thereafter.
The only matter at issue in this appeal concerns the
trial court’s determinations as to Kevin’s visitation with the
children.
During the separation period, the parties worked out a
temporary shared custody arrangement whereby each parent had the
children half of the time.
While both parties agreed that joint
custody was appropriate, they could not agree as to visitation or
who would be the residential custodian.
The issue was submitted
to the trial court based upon the depositions of both parties and
several other witnesses.
On February 26, 1999, the trial court entered findings
of fact, conclusions of law, and a decree of dissolution of
marriage.
The court found that both parties should have joint
custody of the children, and it designated Kimberly as the
residential custodian.
The trial court awarded Kevin visitation
with the children based upon the visitation schedule adopted in
that circuit.
The standard visitation schedule adopted in the
11th Judicial Circuit sets out typical visitation provisions.
Essentially, the non-custodial or non-residential parent has
visitation with the children on alternate weekends, and one
evening visitation during the week.
In addition, the non-
residential custodian is entitled to two two-week vacation
periods with the children during the summer.
The standard
visitation schedule also provides for holiday and birthday
visits, as well as visitation during other school holidays.
Thereafter, Kevin filed a motion pursuant to CR 59.05
to alter, amend or vacate the visitation order.
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Specifically, he
requested that the visitation schedule be altered to reflect the
fact that the parties live approximately 40 miles apart, rather
than the 30 miles stated in the order.
In addition, Kevin asked
the trial court to grant him an additional overnight visitation
on Sunday nights of his alternate weekend visitation, and to
extend his Wednesday evening visitation to allow the children to
stay with him overnight.
The motion was submitted to the trial
court following a brief hearing on June 4, 1999.
In an order
entered on July 14, the trial court denied the motion to modify
visitation, but did amend the order to reflect the actual
distance between the parties’ residences.
Kevin now appeals.
Primarily, Kevin argues that the trial court failed to
make a visitation determination based upon the facts of the case.
He takes great issue with the trial court’s reliance on its
standard visitation schedule.
Pursuant to SCR 1.040, the 11th
Judicial Circuit has adopted local rules of practice and
procedure.
Local Rule 14 D provides as follows:
The Standard Visitation Schedule has been
adopted in the 11th Judicial Circuit. When
specific visitation is requested by either
party, and the parties live within 100 miles
of each other, the Court shall order
visitation according to the Schedule, unless
the parties, by agreement, or the Court,
after hearing evidence, determines that such
visitation should be modified. Attorneys may
contact the Secretary of the Judge for a
copy.
Kevin asserts that the trial court gave undue weight to
the terms of the standard visitation schedule, and failed to
award visitation in accord with KRS 403.320.
We disagree with
Kevin that the trial court’s use of the standard visitation
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schedule constituted an abuse of discretion in this case.
However, the trial court’s use of the standard visitation
schedule raises a significant issue which we shall address at
some length.
A trial court may not adopt a practice which
contradicts any substantive rule of law or any rule of practice
and procedure promulgated by the Supreme Court.
Nicholson, Ky., 899 S.W.2d 85, 87 (1995).
Abernathy v.
Any local rules placed
into effect by the Chief Judge must be in accordance with SCR
1.040 and consistent with the Rules of Civil Procedure, Rules of
Criminal Procedure, and Rules of the Supreme Court.
Commonwealth, Ky., 967 S.W.2d 20, 23 (1998).
Brutley v.
Furthermore, it
should go without saying that local rules must be consistent with
statutes enacted by the General Assembly.
The language of the local rule is problematic because
it suggests that the standard visitation schedule should be
deemed to be reasonable visitation unless a parent shows grounds
for modifying it.
Such an interpretation conflicts with KRS
403.320, which requires the trial court to make findings
regarding visitation based upon the facts of the particular case.
Furthermore, a standard visitation order, even to the extent that
it has been adopted as a local rule, is not binding until it has
been entered as an order in a particular case.
Thus, the local
rule can not be interpreted as requiring a parent to prove
grounds for modifying an existing visitation order, as under KRS
403.340.
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Nevertheless, we do not find that the local rule
inherently conflicts with KRS 403.320, although we recognize that
the potential for conflict exists.
Under KRS 403.320(1), a non-
custodial parent is entitled to:
reasonable visitation rights unless the court
finds, after a hearing, that visitation would
endanger seriously the child’s physical,
mental, moral, or emotional health. Upon
request of either party, the court shall
issue orders which are specific as to the
frequency, timing, duration, conditions, and
method of scheduling visitation and which
reflect the development age of the child.
What constitutes “reasonable visitation” is a matter
which must be decided based upon the circumstances of each parent
and the children, rather than any set formula.
When the trial
court decides to award joint custody, an individualized
determination of reasonable visitation is even more important.
A
joint custody award envisions shared decision-making and
extensive parental involvement in the child's upbringing, and in
general serves the child's best interest.
Ky., 854 S.W.2d 765, 769 (1993).
Squires v. Squires,
Thus, both parents are
considered to be the “custodial” parent, although the trial court
may designate where the child shall usually reside.
Aton, Ky. App., 911 S.W.2d 612 (1995).
Aton v.
The “residential” parent
does not have superior authority to determine how the child will
be raised, and major decisions concerning the child’s upbringing
must be made by both parents.
684 S.W.2d 296, 299 (1984).
Burchell v. Burchell, Ky. App.,
A visitation schedule should be
crafted to allow both parents as much involvement in their
children’s lives as is possible under the circumstances.
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We further emphasize that trial courts should not give
undue weight to the terms of a “standard” visitation order.
Frequently, judicial circuits or trial courts prepare these
documents to aid the trial court in drafting visitation orders.
As in the present case, these documents contain “typical”
visitation schedules, as well as recitations of common conditions
for managing visitation.
However, the use of a standard
visitation order should not supplant the trial court’s obligation
to make its own findings of fact as required by CR 52.01.
See
also Bingham v. Bingham, Ky., 628 S.W.2d 628 (1982).
Therefore, we hold that when either party requests
specific findings regarding visitation, the trial court must make
a de novo determination of what amount of visitation is
appropriate, and enter a visitation order accordingly.
The
terms of a standard visitation schedule may be considered among
all other options.
However, the trial court should not make any
presumption in favor of a standard visitation schedule.
At the same time, we recognize that, in the absence of
an agreement between the parties, the trial court has
considerable discretion to determine the living arrangements
which will best serve the interests of the children.
Furthermore, joint custody does not require an equal division of
residential custody of the children.
Squires, 854 S.W.2d at 769.
As with the standard visitation schedule, the trial court may
consider whether continuation of a shared custody arrangement
would be in the best interests of the children.
On the other
hand, the trial court was not obligated to continue the temporary
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shared custody arrangement which Kevin and Kimberly had been
following.
Consequently, we do not hold that a trial court’s use
of a standardized visitation schedule is automatically grounds
for reversal, even in a case involving an award of joint custody.
Rather, this Court will only reverse a trial court’s
determinations as to visitation if they constitute a manifest
abuse of discretion, or were clearly erroneous in light of the
facts and circumstances of the case.
504 S.W.2d 699, 700 (1973).
Wilhelm v. Wilhelm, Ky.,
We would consider it an abuse of
discretion for a trial court to give presumptive weight to a
standard visitation schedule, requiring the non-residential
parent to prove why that schedule should not be applicable.
We
do not perceive that such is the case here.
Kevin criticizes the trial court for not taking any
additional evidence at the hearing regarding his motion to
increase visitation.
However, he did not attempt to offer any
such evidence at the June 4, 1999 hearing.
The trial judge
specifically stated that he would take the motion under
submission and render a decision after reviewing the record.
Kevin did not object at that point or ask for an evidentiary
hearing.
Therefore, we find that the visitation issue was
properly submitted on the evidence and depositions which were
already of record.
After reviewing the record in this case, we are not
convinced that the trial court made an improper presumption in
favor of the standard visitation schedule, or that it abused its
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discretion regarding the amount of visitation.
It is undisputed
that both Kevin and Kimberly are good, loving, and devoted
parents.
The trial judge acknowledged that allocating
residential custody and visitation among two such deserving
parents is always difficult.
The court also assured the parties
that it would throughly review the record and the depositions
prior to ruling on Kevin’s motion to modify visitation.
We are satisfied that the trial court considered the
facts and circumstances of the particular case in reaching its
conclusion to substantially follow the standard visitation
schedule.
Although Kevin’s request for additional visitation
appears reasonable, we cannot find that the trial court abused
its discretion in denying the motion.
In particular, Kimberly
objected to the additional early morning travel which Kevin’s
requested visitation would entail.
The trial court’s apparent
agreement with this argument was well within its discretion.
Lastly, Kevin complains that the trial court’s use of
the standardized schedule makes it difficult to schedule his
summer visitations without either “piggy-backing” onto his
regular weekend visitation, or foregoing a weekend visitation
altogether.
See Kulas v. Kulas, Ky. App., 898 S.W.2d 529 (1995).
Although the visitation order is somewhat ambiguous in this
regard,1 we find that this issue is not properly presented in
1
The visitation order gives Kevin a four-week visitation
period with the children during the summer, “provided there shall
be no continuous visitation period longer than two weeks at one
time”.
Nonetheless, there is nothing in the visitation schedule
which would require Kevin to forego a regular alternate weekend
visitation should it coincide with the beginning or the end of a
(continued...)
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this appeal.
The issue arose after Kevin filed a notice of
appeal from the trial court’s order denying his motion to modify
visitation.
On August 17, 1999, approximately two months after
the filing of the notice of appeal, Kimberly filed a motion to
hold Kevin in contempt, apparently because he attempted to
overlap an alternate weekend visitation with a summer vacation
visitation.
Kevin responded with a motion to sanction Kimberly
for filing a frivolous motion.
On August 23, 1999, the trial
court denied both motions.
The “piggy-backing” issue was not part of the order
from which this appeal was brought.
Since the issue was not
raised in the proceeding below prior to the filing of the notice
of appeal, we conclude that it is not properly presented on
appeal.
Moreover, we find nothing in the record showing that the
trial court has formally interpreted the disputed provisions of
the visitation order.
Consequently, the issue of whether Kevin
is permitted to “piggy-back” his alternate weekend visitation
period onto the summer visitation period is not ripe for our
review.
In conclusion, we certainly encourage Kevin’s desire to
be involved actively in his children’s lives.
A trial court’s
visitation orders should attempt to provide the non-residential
parent with the greatest amount of visitation which is reasonable
1
(...continued)
summer visitation period. In contrast, the visitation order sets
out clearly how holiday and birthday visitation will affect a
regular alternate weekend visitation. Thus, if the trial court
has concerns about “piggy-backing”, then the visitation order may
need to be clarified.
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under the circumstances.
Unfortunately, in custody proceedings
it is seldom possible for a trial court to impose a visitation
regime which makes both parties happy.
For this reason, matters
involving visitation rights are held to be peculiarly within the
discretion of the trial court.
Standard visitation schedules are
a tool which the trial court may use to aid in the exercise of
this discretion.
Nonetheless, trial courts should take care not
to use the standard schedule as a substitute for its statutory
obligation to determine the most appropriate visitation.
In this
case, however, we find no indication that the trial court failed
to adequately consider the circumstances of both parents and the
children.
Accordingly, the judgment of the Taylor Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Patricia Tierney Kidd
Louisville, Kentucky
Danny Butler
Butler, Butler & Hudson
Greensburg, Kentucky
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